text:
    City of Philadelphia v. Int’l Ass’n of Firefighters, Local 22

      Shannon D. Farmer and Meredith C. Swartz, for petitioner.

      Nancy B. G. Lassen, Richard G. Poulson, Ralph J Teti and John R. Bielski, for respondent.
    March 1, 2013
   FOX, /.,

FACTUAL and PROCEDURAL HISTORY

The City of Philadelphia (city) has appealed this dcourt’s November 19,2012 order wich denied its petition to vacate an Act 111 arbitration award. Act 111, also known as the Police and Firemen Collective Bargaining Act, was enacted to avoid the consequences of strikes by uniformed safety employees by offering interest arbitration as amethod of resolving disputes. Act 111 interest arbitration is a process whereby the issues not resolved in bargaining between the employer and the union may be presented to a panel of arbitrators for final resolution. This differs from grievance arbitration, wherein the arbitrator interprets a term in an existing agreement. The issues in dispute here are between the city and the International Association of Fire Fighters, Local 22 (union). The union represents a bargaining unit of certain uniformed employees of the city within the Philadelphia Fire Department.

In 2008, the city and the union commenced bargaining and exchanged proposals regarding requested changes in the then-existing collective bargaining agreement, which was set to expire on June 30, 2009. In 2009, when their previous bargaining collective agreement expired, the parties proceeded to interest arbitration before a panel of arbitrators, (panel) pursuant to Act 111, as modified by the Pennsylvania Intergovernmental Cooperation Authorities Act (PICA Act).

The PICA Act was passed by the Pennsylvania Legislature in 1991, creating what is essentially a financial watchdog to oversee the city’s finances. PICA requires the city to submit, at least annually, a detailed five year financial plan (“Five Year Plan”) of its anticipated revenues and expenditures, with a balanced budget each year, for approval by the PICA board. The PICA board evaluates the Five Year Plan to ensure that the budget is reasonable and approves it or disapproves it accordingly. The PICA Act also imposes certain requirements on Act 111 interest arbitration panels to circumscribe their power. As discussed in more detail below, the panel must accord substantial weight to the city’s PICA-approved Five Year Plan.

Here, the panel conducted numerous hearings with each side presenting numerous witnesses and exhibits. Following the hearings, the panel met in executive sessions and on October 15, 2010, issued a four-year award (2010 award) covering the period from July 1, 2009 through June 30, 2013. The 2010 award contained a thorough and complete review of the financial factors considered by the panel in the course of its deliberations. The 2010 award contained seventeen (17) substantive provisions that provided a mix of economic and non-economic improvements and concessions.

On November 12,2010, the city filed a petition to vacate the 2010 award alleging that certain provisions violated Act 111, and asserting that the panel failed to satisfy the PICA Act requirements. On November 16, 2011, by mutual agreement of the parties, after a lengthy period of appeal without finality, the court issued an order which remanded the matter back to the panel with instructions to issue a final award in accordance with the PICA Act requirements. The order was entered without prejudice to the city’s claim that provisions of the 2010 award should be vacated because they violate Act 111.

Thereafter, the panel conducted additional hearings, and received additional testimony and documentary evidence concerning the city’s financial status, the local, state and national economies, the city’s most recent 5-year financial plans, the financial resources available to the city and the impact of the parties’ proposed contractual adjustments on the city’s fiscal condition. Following the remand hearings, the panel met in executive sessions and issued anew award on July 2,2012 (2012 award). The city filed a petition to vacate the 2012 award, alleging that it violates PICA, while the union filed a cross-petition to confirm and enforce the 2012 award. The court received memorandum from all parties and heard oral argument and on November 19, 2012 denied the petition to vacate and affirmed the award. This appeal followed.

DISCUSSION

The city contends that the arbitration panel’s award should be vacated because the panel did not give substantial weight to the city’s approved PICA plan and to the city’s ability to pay, in violation of the PICA Act. The union, in contrast, argues that the panel did accord such weight to the plan and the city’s ability to pay. Addressing this ultimate issue first requires that the court analyze the interplay of three distinct legal concepts: the scope of this court’s review, and standard of review this court must apply, and the deference the arbitration panel was required to show to the PICA plan. Therefore, before reaching the merits of the parties’ arguments and an analysis of the factual record, the court feels it is necessarily to clarify and distinguish between these three concepts.

“‘Scope of review’ refers to the confines within which the court must conduct its examination.” Town of McCandless v. McCandless Police Officers Ass’n, 901 A.2d 991 (Pa. 2006). The scope of review is therefore a boundary set for the court, limiting the kinds questions that the court may decide. By determining the proper scope of review, the court is essentially determining “the matter..... the court is permitted to examine.” Id. Here, the scope of review will control which aspects of the challenged award it can even examine.

As the scope of review controls what issues are before a court, the standard of review controls how a court may look at the issues before it. In this context, the standard of review will determine how much this court is permitted to second-guess the arbitration panel as the court reviews those aspects of the panel’s award properly before it. Essentially, the standard of review is a measure of how much deference this court must show to the arbitration panel’s findings of fact.

While the standard of review controls the deference this court must show to an arbitration panel’s findings of fact and assessment of the evidence presented to it, the third concept implicated here is the degree of deference an arbitration panel must show to the factual assumptions contained in the city’s approved PICA plan. Just as the standard of review determines how much this court is permitted to second-guess the arbitration panel, the deference implicated here determines how much the arbitration panel is permitted to second-guess the plan. As will become clear in the analysis below, both the city and the union agree that Act 111 Interest arbitration panels are required to give some level of deference to the assumptions and judgments encapsulated in the city’s most recently approved PICA plan. To determine if a panel made a mistake therefore, it is first necessary to articulate exactly what is that level of deference. In other words, the question of deference is at its core a question of whether, and under what circumstances, an Act 111 arbitration panel may make a finding of fact that contradicts an assumption or judgment contained in the PICA approved plan.

Formulated in terms of the concepts outlined above, the legal questions before this court are as follows: can this court review the arbitrators’ deference (or lack thereof) to the city’s PICA plan and ability to pay, how much deference must this court show to the arbitration panel if it can, and how much deference must an Act 111 arbitration panel show to an approved PICA plan to begin with. Only once these questions have been answered can this court answer the core question raised by the city’s petition.

SCOPE OF REVIEW

The ordinary scope of this court’s review of an Act 111 interest arbitration proceeding is one of “narrow certiorari.” Generally, “an appeal will lie to the courts in the nature of a narrow certiorari, and this court will review only (1) the question of jurisdiction; (2) the regularity of the proceedings before the agency; (3) questions of excess in exercise of powers; and (4) constitutional questions.” In re Wash. Arbitration Case, 259 A.2d 437, 441 (Pa. 1969). This scope of review is highly restrictive; under narrow certiorari, “the merits of the controversy cannot be considered even though the interpretation given to the facts or the law by the [arbitration panel] may have been erroneous.” Highway Paving Co. v. State Board of Arbitration of Claims, 180 A.2d 896, 897 (Pa. 1962).

However, there is a narrow exception for review under the Pennsylvania Intergovernmental Cooperation Authority (PICA) Act. The PICA act provides that “Any party to a proceeding before a board of arbitration may appeal to the court of common pleas to review:

(A) the consideration of the assisted city’s financial plan;
(B) the determination as to the assisted city’s financial ability to pay; or
(C) the failure of the board of arbitration to issue a determination, including a detailed writing of all factors which the board of arbitration took into account in considering and giving substantial weight to the assisted city’s financial ability to pay and the assisted city’s financial plan.”

53 P.S. § 12720.209(k)(3).

The PICA act therefore permits a party to an Act 111 interest arbitration proceeding to secure review of a resultant award even where the issues raised do not fall under one of the four traditional categories of jurisdiction, regularity, scope of powers and constitutional questions. This was, in fact, the holding of the Commonwealth Court in City of Philadelphia v. FOP Lodge No. 5, 916 A.2d 1210 (Pa. Commw. Ct. 2007). In that case, a common pleas court considered a PICA Act appeal from an Act 111 award using the ordinary “narrow certiorari” scope of review. Finding the restrictive scope of review to be dispositive, and without engaging in a review of the arbitration panel’s factual findings, the common pleas court denied the city’s petition to cacate. The Commonwealth Court disagreed, and after examining the language of the PICA Act announced that “The statutory language necessarily mandates a review of the factual record, and narrow certiorari does not apply here.” City of Philadelphia v. FOP Lodge No. 5, 916 A.2d 1210, 1216 (Pa. Commw. Ct. 2007). The court then remanded the case to the common pleas court with instructions to reach the question of whether or not the arbitrator’s award in FOP Lodge No. 5 complied with the PICAAct.

Therefore, following FOP Lodge No. 5, the court’s scope of review is not limited to “narrow certiorari.” It is under the same provisions of the PICA Act that the city now brings its appeal, and the scope of this court’s review therefore encompasses the question of whether or not the arbitration panel accorded substantial weight to both the city’s financial plan and to the city’s ability to pay the award without adversely affecting levels of service.

STANDARD OF REVIEW

The FOP Lodge No. 5 case also touches on the second legal question before the court — that of the court’s proper standard of review. In that case, the Commonwealth Court described the task of a common pleas court reviewing an Act 111 award under the PICA Act as one of “limited factual review.” Id. In its holding, the court remanded the case for the trial court to decide “whether the Panel accorded substantial weight to the plan and whether the Panel’s determination as to the City’s ability to pay for the [ ] Award is supported by substantial evidence in the record brought before the Panel.” Id. The “substantial evidence” language is a reference to the standard of review common pleas courts commonly employ when reviewing the decisions of an administrative agency as codified in 2 Pa.C.S. § 704 (requiring courts reviewing the factual findings of administrative decisions to reverse the decision if “any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence”). Since the FOP Lodge No.5 court described the factual review as “limited,” and instructed the common pleas court to review the factual record for “substantial evidence,” it is clear that this court may examine the arbitration panel’s findings of fact only under a standard of review similar to the one the court uses to evaluate administrative agency decisions.

The “substantial evidence” standard of review is highly deferential to the factual findings of the agency below (or, in this case, the findings of the arbitration panel). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Jeanes Hosp. v. Workers’ Comp. Appeal Bd. (Hass), 872 A.2d 159, 166 (Pa. 2005). As long as some such relevant evidence exists to support the agency or panel’s factual conclusion, the court must accept that conclusion, even if the court would have reached a different one if it were to consider the question afresh. Coleman v. Fischer, 63 A.2d 687, 690 (Pa. Super. Ct. 1949). Because the job of evaluating evidence is one for the arbitration panel and not for this court on appeal, under the “substantial evidence” standard, this court will give the panel “the benefit of every inference which can be logically and reasonably drawn” from the evidence (In re Smith Unemployment Comp. Case, 74 A.2d 523, 524 (Pa. Super. Ct. 1950)) and will view all evidence in the light most favorable to the panel’s Act 111 award. The second legal question posed above — that of how much deference this court must show to the arbitration panel’s findings of fact — is now answered; this court must employ a highly deferential standard of review, and reject a finding of fact by the arbitration panel only if the panel had no relevant and reasonable evidence on which to base that finding.

SUBSTANTIAL WEIGHT

The court now turns to the question of how much deference the arbitration panel was required to show to the factual assumptions, projections and conclusions contained in the city’s approved PICA plan. The PICA Act requires that an arbitration panel must “take into consideration and accord substantial weight to:

(i) the approved financial plan; and
(ii) the financial ability of the assisted city to pay the cost of [any] increase in wages or fringe benefits without adversely affecting levels of service.”

53 P.S. § 12720.209(k)(l).

The requirement that arbitration panels “accord substantial weight” makes it clear that the PICA Act requires at least some level of deference to the City’s approved PICA plan. The precise extent of that deference however, is not made clear in the statute itself. The court therefore turns to case law to guide the necessaiy interpretation.

The phrase “substantial weight” has long been used in opinions discussing child custody cases. In Mahoney v. Mahoney, for example, the Superior Court used “substantial weight” to describe the impact a child’s stated preference should have on a trial court’s custody decision. 512 A.2d 694, 697 (Pa. Super. Ct. 1986). The Mahoney court noted elsewhere in its discussion that a child’s preference should be an “important factor which must be carefully considered” in the trial court’s decision. Id. Although the preferences of a child are important and must bear on a trial court’s decision, the Superior Court noted that “the express wishes of the child are not controlling in custody decisions.” Id. Similarly, in In re Russo, the Superior Court described the “tender years” doctrine and the goal of keeping siblings united as meriting “substantial weight” in deciding custody, but nevertheless upheld the trial court’s decision to separate a young child from his mother and sibling. 346 A.2d 355, 357 (Pa. Super. Ct. 1975). While the meaning scribed to “substantial weight” in these cases is not controlling because the cases arise in the family law context and not the context of a PICA Act appeal, they are illustrative of the level of deference “substantial weight” entails.

The meaning of “substantial weight” in a PICA context was specifically addressed by the Commonwealth Court in FOP Lodge No. 5. After deciding and disposing of that case on the issue of the proper scope of review, the court offered its conjecture as to the meaning of “substantial weight” deference. The Commonwealth Court analogized such deference to the deference courts give to administrative agency interpretations of those agencies’ governing statutes. It is long established that courts will to some extent defer to the meaning an administrative agency attaches to statutory language where the agency has been charged with administering that statute. See, e.g. Borough of Pottstown v. Pennsylvania Municipal Retirement Board, 712 A.2d 741, 744 (Pa. 1998). This is because administrative agencies are presumed to have a special competence within the field of their operation, while courts lack that special competence. Phila. Suburban Corp. v. Bd. of Fin. & Revenue, 635 A.2d 116, 118 (Pa. 1993). As a logical extension of this rationale, the greater the technical complexity of the statutory scheme and the more arcane the expertise required to understand the subject of the agency’s purview, the greater the deference courts will show to the agency’s interpretations. Sunoco, Inc. (R&M) v. Dep’t of Envtl. Prot., 865 A.2d 960, 970 (Pa. Commw. Ct. 2005). Under this level of deference, courts should adopt an agency’s interpretation of a regulatory statute “unless it is clearly erroneous or is inconsistent with the intent or purpose of the statute.” Martin Media v. DOT, 700 A.2d 563, 566 (Pa. Commw. Ct. 1997). Thus, an agency interpretation may even, in a sense, be described as having “controlling weight.” Harston Hall Nursing & Convalescent Home, Inc. v. Commonwealth, Dep’t of Pub. Welfare, 513 A.2d 1097, 1100 (Pa. Commw. Ct. 1986).

This analogy, while helpful, only goes so far. Unlike the deference courts show to agencies on questions of statutory interpretation, “substantial weight” deference under PICA involves questions of fact, not of law. A fact cannot be “inconsistent with the intent or purpose of [a] statute,” nor is a fact a complex and technical scheme which requires special administrative expertise to administer. It simply is, or is not. Unlike the administration of regulatory schemes, determining the existence or nonexistence of a fact is one of the core areas of judicial (and arbitral) competence. This special judicial competence is the reason why “[t]he general rule in this Commonwealth is that a weight of the evidence claim is primarily addressed to the discretion of the judge who actually presided at trial.” Armbruster v. Horowitz, 813 A.2d 698, 702 (Pa. 2002). Additionally, unlike the agencies charged with the administration (and related adjudication) of a complex and technical regulatory scheme, the PICA board here functioned only as an approval body. It was actually the city of Philadelphia and not the PICA board who developed the PICA plan and made the assumptions contained therein. The plan therefore only indirectly reflects whatever particular expertise the PICA board may have with respect to municipal finances, and the rejection of one of the plan’s assumptions is therefore not a rejection of an agency’s expertise. Since the analogy is necessarily inexact, this court reads the Commonwealth Court’s dicta in FOP Lodge No. 5 loosely for the proposition that the city’s PICA plan should be an extremely important piece of evidence for the arbitration panel to consider, and that the arbitration panel should have a good reason for finding contrary evidence more persuasive.

Reading the custody cases cited above together with the Commonwealth Court’s dicta in FOP Lodge No. 5, the court can draw certain conclusions about the deference the arbitration panel is required to show to the city’s approved PICA plan. Clearly, the assumptions encapsulated in the PICA plan should be an “important factor” in the arbitration panel’s decision, and clearly they must be “carefully considered” when the panel formulates an award. While the PICA plan’s assumptions do not wholly control the Panel’s factfinding ability, the panel may not disregard the plan without strong contrary evidence. This view is most consistent with the language of the statute, the persuasive case law, the general rule that factfinders themselves are the best judges of the evidence before them, and the recognition of the arbitration panel’s own substantial expertise in evaluating financial evidence.

Now that the three legal questions raised above have been answered, the court may now frame the case properly. The scope of review permits court to review the arbitration panel’s “consideration of the assisted city’s financial plan...and [ ] determination as to the assisted city’s financial ability to pay.” 53 P.S. § 12720.209(k)(3). The “substantial evidence” standard of review requires this court to address those issues while viewing all of the evidence in the light more favorable to the Panel, and to reject a finding of fact by the arbitration panel only if the panel had no relevant and reasonable evidence on which to base that finding. Finally, when evaluating the question of whether or not the panel properly gave “substantial weight” deference to the city’s approved PICA plan, the court will look to ensure that, where the Panel did not adopt an assumption contained in the Plan, it nevertheless gave the plan “careful consideration” and had sound reasons for making a contrary finding of fact. Having established the relevant legal background, the court now turns to the merits of the award itself.

AWARD

Given this court’s scope of review, it is clear that panel gave “substantial weight” to the city’s approved financial plan, along with the city’s ability to afford the costs of the award without cuts in service, and set forth its “careful considerations” regarding the same in writing. These considerations are supported by substantial evidence in the record. The record before the panel included more then 23,000 pages of testimony and documentary evidence presented by both parties concerning the city’s ability to pay and the city financial plan. The panel clearly evaluated the whole record, weighed the credibility of both parties’ evidence, and set forth 168 specific written considerations drawn from record evidence. Upon review of the record it is clear that both the city and the union presented substantial evidence in support of their position. Just because the panel arrived at conclusions that are different from the city’s does not necessarily mean that the award is unsupported by substantial evidence, or is not in compliance with the PICA Act. Section 209(k)(3)(iv) of the PICA Act provides:

If, after the exhaustion of all appeals, the final arbitration award is not in compliance with the approved financial plan, the award shall not be void or voidable solely by reason of such noncompliance, but the assisted city shall submit the authority of a proposed revision to the plan which demonstrates that revenues sufficient to pay the costs of the award will be available in the affected fiscal years of the plan.

53 P.S. §12720.209(k)(3)(iv)

First, upon review of the record it is clear that there is substantial evidence to support the panel’s findings as to the economy in Philadelphia and any changes to the same since the first award was issued in 2010. Such evidence, including the Dow Jones Industrial Average, GDP, unemployment numbers and various measures of consumer confidence all reflected economic improvement since the low point of the recession in 2009. The record also includes the city’s population growth.

The panel also made findings based upon evidence presented that included demonstrated limitations in the city’s structural forecasting model and it’s Five Year Plan. The panel concluded that the city consistently forecast below actual city tax revenue. The panel also concluded that the city will realize substantially greater revenue in upcoming years than the city projected. In reviewing the city’s plan, the panel concluded that it contained plans to implement significant voluntary tax reductions during the life of its current plan, as well as substantial discretionary expenditures. Next, there is evidence of the significant amount of savings that the city had already secured from the Local 22 bargaining unit by failing to maintain wage parity among its police and firefighters. Essentially, each of the city’s last five approved financial plans assumed that the firefighters will receive no wage or benefit increases.

Next, and perhaps most importantly, the city did not appeal the 2009 police award, which was substantially more costly to city, despite the city having reported a negative fund balance of $137 million at the time. Further, the cost of that award had not been included in the applicable plan submitted and approved by the PICA board.

The Act does not require the panel to reach the same conclusión as the PICA board approved plan. Such a requirement would render the Act 111 arbitration process of no purpose. The city contends that the panel failed to give the PICA approved plan the deference required. Yet it based this argument solely on the award being more than the city budgeted. This court disagrees. The panel clearly complied with both Act 111 and the PICA Act. For the reason set forth above this court’s decision to affirm the arbitration award and deny the city’s petition to vacate should be affirmed.

      . The proceedings in this case have now extended forty (40) months into the panel’s original forty-eight (48) month award term.

      . A fuller explanation of the PICA plan follows below.

      . The city does not contend that the panel failed to issue a sufficiently written determination under (C).

      . The “tender years” doctrine is the precept that “a child of tender years should be with the mother.” In re Russo, 346 A.2d 355, 357 (Pa. Super. Ct. 1975)

      . The city sets great store by the Commonwealth Court’s analogy, and maintains that it requires the arbitration panel to accept the PICA plan’s assumptions as true absent “fraud, bad faith, abuse of discretion or clearly arbitrary action.” Besides the fact that the relevant section of FOP Lodge No. 5 is nonbinding dicta, and therefore relevant only for its potential persuasive value, this court is unable to determine how the city arrived at this standard from a reading of the Commonwealth Court’s opinion.


source: Caselaw Access Project

author: GLAZER, J.,

license: Public Domain

text:
    In re Sheriff’s Excess Proceeds Litigation

      Deborah R. Gross and Robert H. Bembry, III, for plaintiffs.

      Andrew J. Belli, Robert D. Aversa and Benjamin J. Hinerfeld, for defendants.
    March 12, 2013
   GLAZER, J.,

Named plaintiffs Joseph O’Hara and his company Finn Land Corp. purport to represent two classes of persons aggrieved by the Sheriffs Office of Philadelphia County’s mishandling of excess proceeds from the sale of foreclosed properties. Plaintiffs define those two classes as follows:

a. Each owner of real property within the County of Philadelphia whose real property was sold at a Philadelphia Sheriffs sale during the time period running from the date of judgment in this action through the preceding five years and who is entitled to, but did not receive, payment from the Philadelphia Sheriffs Office, of the excess sheriffs sale proceeds after satisfaction of the judgment lien(s) creditor’s obligation, other applicable encumbrances, and the Sheriffs costs and fees. (“Excess Funds Class”);
b. Each owner of real property within the County of Philadelphia whose real property was sold at a Philadelphia sheriffs sale during the time period running from five years preceding the date of judgment in this action through January 1, 1999, and who was entitled to, but did not receive payment from the Philadelphia Sheriffs Office, of the excess sheriff’s sale proceeds after satisfaction of the judgment lien(s) creditor’s obligation, other applicable encumbrances, and the Sheriffs costs and fees, and who was damaged by the wrongful acts committed by the sheriff, and does not include claims for the actual moneys which were or have been transferred from the Sheriff Defendants ’ unclaimed funds escrow accounts to the State Treasurer’s escrow account pursuant to DAUPA (“Interest Class”).

Plaintiffs brought these two, now consolidated, class actions in response to a 2010 audit report by the controller of the city of Philadelphia and a subsequent forensic audit of the Sheriffs Office by an outside accounting firm. Both audits showed that, for many years, the Sheriff’s Office failed to distribute millions of dollars in excess proceeds from foreclosure sales of real property to the former owners of such property.

In these actions, plaintiffs assert claims against the Sheriff for excess proceeds and interest on such proceeds based on the theories of unjust enrichment, equitable conversion, fraudulent concealment, violation of the Pennsylvania Constitution, and mandamus. The Treasurer of the Commonwealth of Pennsylvania filed a motion to intervene as a defendant, which was granted. The treasurer’s interest in this action arises under the Commonwealth’s Disposition of Abandoned and Unclaimed Property Act (“DAUPA”), which describes when and how funds held by the sheriff, such as those sought by the plaintiffs, escheat to the treasurer, who is. then responsible for disbursing them.

Plaintiffs filed a motion for class certification, which both the sheriff and the treasurer oppose, and which is presently before the court. For the reasons that follow, certification is denied.

The court may certify this action as a class action only if each of the following requirements are met:

(1) The class is so numerous that joinder of all members is impracticable;
(2) There are questions of law or fact common to the class;
(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class;
(4) The representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in [Pa. R. Civ. R] 1709; and
(5) A class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in [Pa. R. Civ. R] 1708.

“It is essential that the proponent of the class establish requisite underlying facts sufficient to persuade the court that the Rule 1702 prerequisites were met.” In this case, plaintiffs have failed to satisfy requirements no. 1 (numerosity), no. 3 (typicality), no. 4 (adequacy of representation), and no. 5 (fair and efficient method), so class certification must be denied.

I. The Fair and Efficient Method Requirement Is Not Satisfied.

In determining whether a class action is a fair and efficient method of adjudicating the controversy, the court shall consider:

1) whether common questions of law or fact predominate over any question affecting only individual members;
2) the size of the class and the difficulties likely to be encountered in the management of the action as a class action;
3) whether the prosecution of separate actions by or against individual members of the class would create a risk of
i) inconsistent or varying adjudications with respect to individual members of the class which would confront the party opposing the class with incompatible standards of conduct;
4) the extent and nature of any litigation already commenced by or against members of the class involving any of the same issues;
5) whether the particular forum is appropriate for the litigation of the claims of the entire class;
6) whether in view of the complexities of the issues or the expenses of litigation the separate claims of individual class members are insufficient in amount to support separate actions;
7) whether it is likely that the amount which may be recovered by individual class members will be so small in relation to the expense and effort of administering the action as not to justify a class action.

In this case, the second and fifth considerations weigh heavily against allowing this action to proceed as a class action.

A. This Forum Is Not Appropriate For the Litigation of the Plaintiffs’ Claims.

Defendants argue that plaintiffs’ claims may not be asserted as class claims before this court, but instead should be asserted, if at all, individually in other fora under DAUPA and the Pennsylvania Rules of Civil Procedure. “Where the Legislature has provided a specific statutory remedy, a class action may not be used to provide a different remedy.”

The Pennsylvania Rules of Civil Procedure govern the sheriffs sales of foreclosed properties and disbursement of the proceeds from such sales. The rules provide a remedy for individual property owners who believe the proceeds from the sale of their property are not being properly disbursed; a property owner may file exceptions to the sheriffs proposed schedule of distribution, which exceptions are heard by the court that entered the judgment upon which execution is based.

If a property owner fails to file such exceptions and the sheriff fails to disburse the excess proceeds, the property owner may claim them from the sheriff. If the excess proceeds are not disbursed by the sheriff within five years, they are then transferred to the Treasurer pursuant to DAUPA. “Any person claiming an interest in any property paid or delivered to the [Treasurer] under [DAUPA] may file a claim thereto or to the proceeds from the sale thereof on the form prescribed by the [Treasurer].” If a property owner files a claim, and the treasurer denies it or fails to respond to it, the claimant may appeal to, or re-assert his/ her claim in, the Commonwealth Court.

This statutory scheme was enacted by the Legislature specifically to address situations such as those facing the plaintiffs. The system is designed to reunite prior owners of foreclosed homes with any excess proceeds due to them. There is no need for the prior owners to litigate their claims for such proceeds as a class before this court because each of them has the right to seek the funds due to him/her from the Sheriff and the trial court under the Pennsylvania Rules of Civil Procedure and from the treasurer and the Commonwealth Court under DAUPA.

B. The Management Of This Class Action Will Be Too Difficult.

The two classes which the named plaintiffs purport to represent are not well defined, so it is difficult to determine which former property owners are members of the proposed classes and which are not. “Where the class definition is so poorly established that the court is unable to ascertain who the potential class members are, then the numerosity requirement is not met.” Both classes are defined temporally, but the time period that governs each is constantly shifting. Both definitions ask the court to count backwards from the date of judgment in this action, which is an unknown date in the future. As a result, membership in the classes depends upon how long this litigation continues, and class actions often last many years, if not a decade or more.

Given the shifting class definitions and the potential length of this litigation, it is possible that people whose homes have not yet been foreclosed upon and sold at sheriffs sale would fall within the time limits for the classes, whereas people who claim to be aggrieved now, such as the named plaintiffs, would no longer qualify. Such future claimants obviously have not been victims of the sheriffs former improper practices, so they are unlikely to qualify as class members even if they meet the temporal requirements of the class.

The court could freeze the class definitions now and include only persons claiming excess funds generated between 2008-2013. However, by the time this case reaches judgment, many of those funds will be in the treasurer’s, not the sheriffs, hands. The classes have not asserted, and cannot assert, any claims against the treasurer in this action. Instead, each class member whose funds are transferred would then have to apply to the treasurer for his/her funds. If the class members are ultimately going to have to file claims under DAUPA to obtain the funds due to them, there is no point in litigating their claims to such funds in this action first.

Even if it were possible to define the classes sufficiently, locating enough class members to make this class action meaningful would be too difficult and too costly. People who lose their homes, and thereby their mailing address, due to sheriffs sales are necessarily forced to relocate, and they may not immediately obtain a new permanent address. In addition, many of the people whose homes were sold by the sheriff disappeared, or died, long before foreclosure or tax proceedings even commenced. Locating them or their heirs is particularly difficult since their trails went cold ages ago. The normal means of finding and notifying class members, i.e., by mailing notices to current addresses found in the defendant’s files are unlikely to be successful in this case.

If any claimants were to come forward and claim membership in the class, each person’s claim would then have to be examined to confirm that the person submitting it is really the former owner of a particular property, or his/her heirs, and not an imposter or someone with a similar name. Undertaking such individualized inquiries and finding the people who are entitled to excess proceeds from the sales of their homes is best left to the government, i.e., the treasurer’s office, which is already tasked with such duties under DAUPA.

The treasurer holds the funds received from the sheriff in perpetuity, so claimants may come forward at any time in the future and obtain the full amount due to them. By contrast, a judgment rendered in this class action would have to be for a sum certain representing only the proceeds due to those few legitimate class members who came forward during the litigation, minus attorneys’ fees and costs and possibly a premium for the named plaintiffs. If the former property owners apply to the treasurer for the amounts due to them, no such fees are deducted. Since DAUPA provides abetter means for identifying and paying potential class members, there is no point undertaking the expense of administering a class action in this case.

II. The Typicality And Adequacy of Representation Requirements Are Not Satisfied.

Named plaintiffs must show they “will fairly and adequately assert and protect the interests of the absent class members.” In order to make this determination, the court must consider “whether the representative parties have a conflict of interest in the maintenance of the class action.”

Named plaintiffs Joseph O’Hara and his wholly owned company, Finn Land Corporation, are real estate investors. They sometimes act as mortgage holders and thereby cause other people’s homes to be sold at sheriff’s sale. They sometimes act as property owners and make business decisions not to pay real estate taxes and to allow their own investment properties to be sold at Sheriff’s sale. They have successfully obtained excess proceeds due to them from such sales.

Mr. O’Hara also acts as a “finder” for people whose homes were sold at foreclosure sales. In doing so, he charges his clients a fee for reuniting them with the excess proceeds held for them by the sheriff. In other words, he has profited from the class members’ ignorance of the refund system. The named plaintiffs are savvy speculators who understand and benefit from the lien and foreclosure processes currently in place. As such, they are not representative of a class of people who lost their homes due to their inability to pay real estate taxes and/or make timely mortgage payments.

Furthermore, the named plaintiffs’ claims for payment of excess proceeds are not typical of those of the other class members.

The purpose of the typicality requirement is to ensure that the class representative’s overall position on the common issues is sufficiently aligned with that of the absent class members to ensure that her pursuit of her own interests will advance those of the proposed class members. Typicality exists if the class representative’s claims arise out of the same course of conduct and involve the same legal theories as those of other members of the putative class. The requirement ensures that the legal theories of the representative and the class do not conflict, and that the interests of the absentee class members will be fairly represented.

Named plaintiffs claim they are entitled to excess funds from two sheriff’s sales of their former properties. The sheriff denies there are any excess proceeds due to plaintiffs in either case. Such disputes of material fact will require the court to engage in individualized inquiries to determine whether the named plaintiffs are entitled to recover. However, with respect to many of the other putative class members, the sheriff does not dispute that excess funds are due to them; it simply cannot locate the people to whom such funds are due. Because named plaintiffs’ claims and interests are substantially different from those of the absent class members, they are not proper representatives of the classes.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. This court is not the appropriate forum in which to litigate the proposed classes’ claims because the Supreme Court and the Legislature chose to make the Sheriff’s Office and the Treasurer of the Commonwealth the entities responsible for reuniting plaintiffs with the funds they seek.

2. The two proposed classes are too ill-defined to be manageable, the administration of this class action will be too difficult and costly, and it will ultimately not succeed in reuniting the putative class members with the funds they seek.

3. The named plaintiffs are not proper representatives of the classes because their claims are not typical of the classes and their interests conflict with those of the other class members.

For all the foregoing reasons, plaintiffs’ motion for certification of the Excess Funds and Interest Classes must be denied.

ORDER

And now, March 12, 2013, upon consideration of plaintiffs’ motion for class certification, the responses thereto, and all other matters of record, after hearing oral argument, and in accord with the opinion issued simultaneously, it is ordered that the motion for class certification is denied.

      . When these actions were filed there were two additional named plaintiffs, Marie Virelli and Michelle Pingitore, but they received the excess funds due to them from the sheriff and the treasurer, respectively, and they have withdrawn as named plaintiffs.

      . In addition to suing the Sheriff’s Office, plaintiffs’ assert their claims against two people who formerly held the position of sheriff, John Green and Barbara Deeley, as well as the city of Philadelphia

      . Although the treasurer and the Treasury Department intervened as defendants, the plaintiffs have not asserted any claims against them.

      JPa. R. Civ. P. 1702.

      . Samuel-Bassett v. Kia Motors Am., Inc., 34 A.3d 1, 16 (Pa. 2011).

      . Pa. R. Civ. P. 1708.

      . Smolow v. Hafer, 867 A.2d 767 (Commw. 2005). The court in Smolow also held that claims for interest, such as those asserted by the Interest Class in this action, may not be asserted against the Commonwealth, and by analogy the sheriff, absent a specific statutory or contractual provision expressly providing for the payment of interest. See id. 867 A.2d at 775-776. No such statute or contract forms the basis for the Interest Class’ claims.

      . See Pa. R. Civ. P. 3101 et seq. (“Enforcement of Judgments”).

      . Id. at 3136(d)-(f). That judgment constitutes a court’s resolution of a tax lien or foreclosure action brought against the property owner, which the property owner had a chance to litigate fully.

      . In the wake of the damning audits, the sheriff now takes affirmative actions to reunite property owners with any excess proceeds that may be due to them. However, such efforts have not, apparently, met with great success because people who have lost their homes in foreclosure do not often leave forwarding addresses.

      . See 72 P. S. § 13 01.2 (a) (“All abandoned and unclaimed property and property without a rightful or lawful owner as hereafter set forth is subject to the custody and control of the Commonwealth.”); id. at § 1301.9(1) (“all property held for the owner by any court, public corporation, public authority or instrumentality of the United States, the Commonwealth, or any other state, or by a public officer or political subdivision thereof, unclaimed by the owner for more than five (5) years from the date it first became demandable or distributable” is presumed abandoned and unclaimed); id. at § 1301.13 (“Every person who holds property subject to the custody and control of the Commonwealth shall... pay or deliver to the State Treasurer all property subject to custody and control of the Commonwealth under this article.”)

      . Id. at § 1301.19. The treasurer maintains a website searchable by a claimant’s name, which makes it possible for any person to see if there are funds in the treasurer’s possession to which s/he may be entitled.

      . Id. at § 1301.21.

        . Debbs v. Chrysler Corp., 810 A.2d 137, 163 (Pa. Super. 2002)

      . See id (the appellate court criticized the trial court for certifying “a class whose membership continually changed...over the ten years of litigation in this case.”)

      . The named plaintiffs claim to have lost their properties at sheriff’s sales in 2009 and 2010. If judgment is not rendered in this action until January 2016, then neither of them will still be a member of the Excess Funds Class at that time, and that class will have no representatives.

      . Each year, under DAUPA, an additional tranche of five year old unclaimed funds is sent by the sheriff to the treasurer, who then is responsible for reuniting those funds with legitimate claimants. See 72 P.S. §§ 1301.13, 1301.20. In addition, the sheriff may opt to pay such funds to the treasurer before the five years elapses. See id at § 1301.13.

      . Smolow v. Hafer, 867 A.2d 767, 774 (Pa. Commw. 2005) (“the right to claim unclaimed or abandoned property under [DAUPA] is individual, and it must be pursued individually within the statutory confines of that legislation.”)

      . According to plaintiffs, from 2006 through 2009, the sheriff sold over 8,900 properties from which it accumulated more than $7 million in excess proceeds. Complaint, ¶ 49. Assuming the number of sales each year would be roughly the same for the vaguely defined class periods, the five year Excess Proceeds Class would include more than 11,000 missing persons or their heirs, and the ten year Interest Class would include more than 22,000.

      . The addresses found in the sheriff’s files are usually those of the properties which the former owners abandoned or lost, so mailing information to those addresses or posting it on the property will not give notice to people who no longer reside there.

      . Individualized inquiries implicate the commonality and predominance criteria for class certification and militate against certifying the class. See Samuel-Bassett v. Kia Motors Am., Inc., 34 A.3d 1, 23 (Pa. 2011) (“a class consisting of members for whom most essential elements of its cause or causes of action may be proven through simultaneous class-wide evidence is better suited for class treatment than one consisting of individuals for whom resolution of such elements does not advance the interests of the entire class.”). See also Pa R. Civ. P. 1702, 1708(a)(1).

      . Pa. R. Civ. P. 1702(4).

        . Id. at 1709(2).

      . In the complaint, named plaintiffs s point to only two instances in which they did not receive the excess proceeds they claim are due to them, but there are many other instances in which they did get paid.

      . Samuel-Bassett v. Kia Motors Am., Inc., 34 A.3d 1, 30-31 (Pa. 2011).

      . If the court determines that the sheriff is correct and no excess funds are due to the named plaintiffs, then they are not members of the classes they purport to represent.


author: PICCIONE, J.,

text:
    Pandice v. Kowalczyk

      C.P. of Lawrence County,
    No. 11067 of 2007, C.A.

      Christopher S. Hallock, for plaintiff

      Timothy A. Montgomery, for defendants
    March 21, 2013
   PICCIONE, J.,

Before this court for disposition is the motion for summary judgment (hereinafter, the “motion”) filed on behalf on the Defendants, Thomas Kowalczyk and Russell Standard Corporation (hereinafter, collectively, the “defendants”). A hearing was held in regard to this motion on February 25, 2013. The current action arises from an automobile accident that occurred at the intersection of Potter Run Road and State Route 19 in Lawrence County on June 21, 2006. Defendant Thomas Kowalczyk (hereinafter, “defendant Kowalczyk”) was operating a tractor trailer on behalf of defendant Russell Standard Corporation (hereinafter, “defendant Russell Standard”) on State Route 19. The decedent Donna J. Pandice (hereinafter, the “decedent”) was operating a vehicle on Potter Run Road, which was controlled by a stop sign. The defendants’ vehicle passed through the intersection while the decedent entered the intersection; and the vehicles collided, which resulted in the decedent’s death.

Plaintiff Michael A. Pandice filed a complaint on August 28, 2007 alleging theories of negligence against the defendants. The plaintiff also brings wrongful death and survival actions against the defendants. On August 18, 2009, the defendants filed a motion for summaiy judgment, which the plaintiff refuted by providing the expert testimony of Gabriel Alexander (hereinafter, “Alexander”), an accident reconstructionist who opined that the defendants’ tractor trailer lacked the proper amount of retro-reflective tape and was traveling at an excessive rate of speed. The defendants filed a motion for a Frye hearing pursuant to Pa.R.C.P. 207.1 and Pa.R.E. 703 to exclude expert testimony and reports on August 4, 2011. After several extensive evidentiary hearings during which both parties provided testimony regarding the methodology utilized by Alexander, the court ultimately denied the defendant’s motion and found no reason to exclude Alexander’s testimony or expert report.

The defendants filed the instant motion for summary judgment (hereinafter, the “motion”) alleging the plaintiff has failed to show negligence on the part of either defendant; if negligence that is found on behalf of defendant Kowalczyk, he is entitled to invoke the sudden emergency doctrine; since fault allegedly cannot be attributed to defendant Kowalczyk, the plaintiff’s claims against defendant Russell Standard must fail as a matter of law; and the plaintiff cannot establish conscious pain and suffering on the part of the decedent. The defendants request this court dismiss the plaintiff’s complaint with prejudice. The plaintiff argues that genuine questions of material facts exist, and the motion should be denied. The defendants also filed the supplement to defendants’ motion for summary judgment (hereinafter, the “supplemental motion”) on January 9, 2013, wherein the defendants argue that since the plaintiff’s own expert found that had the decedent fully stopped at the stop sign, defendant Kowalczyk would have cleared the intersection. A hearing was held in this court on this matter on February 25,2013. For the reasons set forth below, the defendant’s motion is denied.

Under Pennsylvania law, the standard for summary judgment is set forth by Rule 1035.2 of the Pennsylvania Rules of Civil Procedure:

After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.

Pa.R.C.P. No. 1035.2.

The rule explains that summary judgment is appropriate only in those instances where “there is no genuine issue of any material fact as to a necessary element of the cause of action or defense that could be established by additional discovery” and the moving party is entitled to judgment as a matter of law. Fine v. Checcio, 870 A.2d 850, 857 (Pa. 2005); see also Pa.R.C.P. 1035.2. The moving party bears the burden of proving that no genuine issue of material fact exists. Rush v. Philadelphia Newspapers, Inc., 732 A.2d 648, 650 (Pa. Super. 1999). Bald, conclusory allegations can neither create an element necessary to establish a prima facie case nor produce a genuine issue of material fact. Golaschevsky v. Comm., Dept. of Environmental Resources, 683 A.2d 1299, 1302 (Pa. Cmwlth. 1996). For the purposes of summary judgment, material facts are those that have a direct effect on the outcome of the case. Kuney v. Benjamin Franklin Clinic, 751 A.2d 662, 664 (Pa. Super. 2000).

In determining whether summary judgment is appropriate, the trial court is required to view the record in a light most favorable to the non-moving party, and “all doubts as to the existence of a genuine issue of material fact must be resolved in favor of the nonmoving party.” P.J.S. v. Pennsylvania State Ethics Comm’n, 723 A.2d 174 (Pa. 1999) (citing Kapres v. Heller, 640 A.2d 888 (Pa. 1994)). A trial court should only grant a motion for summary judgment when the facts of record are so clear that reasonable minds could not disagree on the outcome. Basile v. H & R Block, Inc., 761 A.2d 1115, 1118 (Pa. 2000) (citing Cochran v. GAF Corp., 666 A.2d 245, 248 (Pa. 1995). It is not the function of the court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Pennsylvania Securities Commission, 579 A.2d 1358, 1363 (Pa. Cmwlth. 1990).

“[I]f a defendant is the moving party, he may make the showing necessary to support the entrance of summaiy judgment by pointing to materials which indicate that the plaintiff is unable to satisfy an element of his cause of action.” Basile v. H&R Block, Inc., 777 A.2d 95, 100 (Pa. Super. 2001). Therefore, if a plaintiff fails to present sufficient evidence of any element of the cause of action, the defendant is entitled to judgment as a matter of law. Ertel v. Patriot-News Co., 674 A.2d 1038, 1042 (Pa. 1996).

The basic elements of a negligence action are: (1) a duty or obligation recognized by law; (2) a subsequent breach of such duty; (3) an actual injury or damage suffered by the plaintiff; and (4) a causal connection between such injury or damage and the breach of the duty. Lux v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286 (Pa. Super. 2005). Failure to establish one of the elements of negligence is valid grounds for summary judgment. McMahon v. Pleasant Valley West Ass’n, 952 A.2d 731, 735 (Pa. Commw. 2008). The mere existence of negligence and the occurrence of an injury are insufficient to impose liability as there remains to be proved the link of causation. Taylor v. Jackson, 643 A.2d 771, 775 (Pa. Commw. 1994). Whether a defendant’s negligence is the cause of an accident is ordinarily a question for the fact-finder, but, if the relevant facts are not in dispute, the question becomes one of law. Behney v. Bolich, 986 A.2d 944 n.1 (Pa. Commw. 2009). The court must then evaluate the facts and refuse to find an actor’s conduct was the cause of the harm “when it appears to the court highly extraordinary that the actor’s conduct should have brought about the harm.” Holt v. Navarro, 932 A.2d 915, 921 (Pa. Super. 2007) (citing Brown v. Philadelphia College of Osteopathic Medicine, 760 A.2d 863, 868 (Pa. Super. 2000)).

First, the defendants argue that summary judgment is appropriate because the plaintiff has failed to sustain a claim of negligence on the part of either defendant. The defendants do not argue that defendant Kowalczyk owed a duty to the decedent and other motor vehicles while he was operating the tractor trailer. In the amended complaint, the plaintiff avers the injuries and damages sustained by the decedent were the direct and proximate result of the defendants’ breach of that duty for the following reasons: (1) operating the tractor trailer at an excessive rate of speed; (2) operating the tractor trailer without having the vehicle under proper control; (3) operating the tractor trailer without being able to bring it to a stop within the assured clear distance ahead; (4) in being fatigued and inattentive; (5) failing to sound a warning of his approach; (6) operating the tractor trailer in violation of the Motor Vehicle Code of the Commonwealth of Pennsylvania with regard to the operation of motor vehicles on public throroughfares; and (7) operating the tractor trailer in violation of the Motor Vehicle Code of the Commonwealth of Pennsylvania by disregarding a PennDOT warning advisory sign as a recommended speed of 35 m.p.h. at approaching the intersection.

The defendants argue that the decedent’s injuries and damages were not the direct and proximate cause of defendant Kowalczyk’s actions because he was faced with a sudden emergency. The sudden emergency doctrine “relates to the standard of conduct applied to a driver who, although driving in a prudent manner, is confronted with a sudden or unexpected event[,] which leaves little or no time to apprehend a situation and act accordingly[,] should not be subject to liability because another perhaps more prudent course of action was available.” Shiner v. Ralston, — A.3d —, (Pa. Super. 2013) (internal citations omitted). Essentially, “a person confronted with a sudden and unforeseeable occurrence, because of the shortness of time in which to react, should not be held to the same standard of care as someone confronted with a foreseeable occurrence.” Lockhart v. List, 655 A.2d 1176, 180 (Pa. 1995). “The sudden emergency doctrine is frequently employed in motor vehicle accident cases wherein a driver was confronted with a perilous situation requiring a quick response in order to avoid a collision.” Id. Moreover, “[i]t is important to recognize, however, that a person cannot avail himself of the protection of this doctrine if that person was himself driving carelessly or recklessly.” Id. (citing Chadwick v. Popadick, 159 A.2d 907 (Pa. 1960). He “will not be fully excused from liability where he responded to a sudden emergency in a reckless or otherwise unreasonable manner[.]” Kukowski v. Kukowski, 560 A.2d 222, 226 (Pa. Super. 1989).

The defendants rely upon the deposition testimony of Trooper David L. Tyler (hereinafter, “Trooper Tyler”) of the Pennsylvania State Police to assert that Defendant Kowalczyk was not negligent. Trooper Tyler testified as follows:

Q. I take it you did not conclude that Mr. Kowalczyk was operating the tanker at an excessive speed?
A. Yes, I didn’t conclude excessive speed.
Q. I take it you did not believe he failed to have his vehicle under control.
A. That’s correct.
Q. And if I understand you correctly, you do not believe he had an opportunity to stop or take any evasive action.
A. Yes.
Q. And you don’t believe he was fatigued or inattentive in operating his vehicle?
A. Yes.
Q. And you do not believe he had an opportunity to warn her prior to this incident occurring.
A. Yes.

(Depo. of Trooper Tyler. Pg. 28-29). Therefore, Trooper Tyler refutes the plaintiff’s allegations of negligence on the part of defendant Kowalczyk. Trooper Tyler also believed that the decedent did not properly stop at the posted stop sign. The defendants also rely on the testimony of Mr. Steven Rickard (hereinafter, “Rickard”). Rickard is a consultant and instructor in traffic accident reconstruction. He opined that the alleged lack of retro-reflective tape did not cause the accident as there was no light source to make the tape noticeable as the vehicles were traveling on perpendicular roads.

As a result of the Frye hearings, the plaintiff is permitted to present expert testimony from Alexander. Alexander reconstructed the accident at issue and concluded that defendant Kowalczyk was operating the tractor trailer at an excessive rate of speed when the accident occurred. Alexander also addressed the issue of conspicuity of the tractor trailer and concluded that it lacked the proper amount of retro-reflective tape. Additionally, the plaintiff argues that the person upon whom the defendants rely, Trooper Tyler, is not an accident reconstructionist expert, nor has he had any special training as such. The plaintiff argues that his opinions on the ultimate issue of which party was at fault should not be accepted.

In the defendants’ supplemental motion, the defendants argue that the plaintiff cannot prove that defendant Kowalczyk was negligent since the plaintiff’s own expert witness testified that had the decedent properly stopped at the stop sign, defendant Kowalczyk’s tractor trailer would have cleared the intersection and the accident would have been avoid. Alexander did testify that based upon his methodology, one calculation determined that the tractor trailer could have cleared the intersection had the decedent fully stopped at the stop sign; however, Alexander concluded that defendant Kowalczyk’s speed and the tractor trailer’s failure to comply with regulations regarding conspicuity markings and reflective tape were contributing factors to the accident. The plaintiff’s expert therefore does not conclude, as the defendants suggest, that the decedent’s violation of the Motor Vehicle Code by failing to stop at a stop sign was the sole cause of the accident.

The testimony and arguments presented to the court by both parties indicate that they have competing experts with differing conclusions on the ultimate issues. There are genuine issues of material fact as of the manner in which the accident occurred and whether defendant Kowalczyk and/or the decedent were negligent in the manner in which they were operating the vehicles. It is for the jury to decide which expert’s testimony it decides to rely upon in rendering a decision. Because a genuine issue of material fact exists with regard to whether defendant Kowalczyk was negligent, it is improper for this court to determine whether he is protected under the sudden emergency doctrine.

Next, the defendants argue that since the plaintiff’s claims against defendant Russell Standard are based upon vicarious liability, they must fail because defendant Kowalczyk was not negligent. However, as stated supra, a genuine issue of material fact exists as to whether defendant Kowalczyk was negligent in causing the accident. Additionally, the plaintiff alleges defendant Russell Standard was negligent beyond the actions of defendant Kowalczyk. Specifically, the plaintiff alleges that the tractor trailer was not equipped with the proper reflective tape. As stated above, both parties have presented conflicting expert testimony regarding this issue. It is proper for a jury and not the court to decide which parties’ expert’s testimony it decides to rely upon in rendering a decision.

Finally, the defendants assert they are entitled to summary judgment on the plaintiff’s survival action on behalf of the decedent. In the survival claim, the plaintiff asserts a claim for pain, mental anguish, and suffering. The defendants argue that there is no evidence to suggest the decedent experienced conscious pain and suffering.

The Superior Court in Nye v. Com., Dept. of Transp., 480 A.2d 318, 321 (Pa. Super. 1984), explained the law in this Commonwealth that “where a decedent is killed instantaneously, there can be no recovery for pain and suffering in a survival action.” Where death is instantaneous, obviously a decedent could not have suffered so damages for such would be unwarranted. “The same rule applies where a decedent is not conscious between the time of injury and the time of death.” Id. When a decedent is killed during an automobile accident, “there must be sufficient evidence to support a finding that the decedent was conscious at any time after the accident.” Id. (emphasis in original). “Thus, where the decedent is unconscious for the entire period between the time of injury and the time of death, there can be no recovery for pain and suffering in a survival action.” Id.

The plaintiff argues that he has established the decedent suffered conscious pain and suffering to substantiate the survival case of action. First, the plaintiff asserts that defendant Kowalczyk indicated to the paramedic, Michelle Eaton, that “he saw her move.” Secondly, defendant Kowalczyk indicated during his deposition that he asked the decedent if she were all right, and after a few seconds he saw the decedent’s left hand, arm, and head move. The plaintiff argues that these motions were voluntary and in response to defendant Kowalczyk’s inquiry. Thirdly, the plaintiff argues that Dr. Karl Williams (hereinafter, “Dr. Williams”), the forensic pathologist who conducted an autopsy on the decedent, concluded that there is a possibility that the decedent had some vital activity after the accident, Dr. Williams opined, “Although no evidence of soot was found in the upper airways, this finding suggest the possibility of some vital activity after the accident.”

The above testimony suggests that the decedent may have been conscious of pain before her death. As a result, “it is the duty [of the jury] to consider this ... testimony and, based upon it, decide whether or not decedent had any pain and suffering.” Williams v. Southeastern Pennsylvania Transpo. Authority, 741 A.2d 848, 859 (Pa. Cmwlth. 1999). It is a question for the jury to decide “whether decedent was conscious of pain, even though his condition may have rendered him incapable of communicating that suffering to others.” Id. As such, a question of fact exists regarding whether the decedent was conscious of pain. Summary judgment is therefore inappropriate.

Based upon the foregoing, the defendant’s motion for summary judgment is hereby denied.

ORDER OF COURT

And now, March 21, 2013, this case being before the court on February 25, 2013 for the defendants’ motion for summary judgment, with Christopher S. Hallock, Esquire, appearing and representing the plaintiff, and with Timothy A. Montgomery, Esquire, appearing and representing the defendants, it is hereby ordered and decreed as follows:

1. The defendant’s motion for summary judgment is hereby denied pursuant to the attached opinion.

2. The Prothonotary shall properly serve notice of this order and attached opinion upon counsel of record; and if a party has no counsel, then upon said party at their last known address as contained in the court’s file.


author: MINORA, J.,

text:
    Ward v. Edwards

      C.P. of Lackawanna County,
    No. [ AXX-XX-XXXXX ]-C.

      Robert W. Munley, 111, for plaintiff

      Michael Gallacher, for defendant
    April 5, 2013
   MINORA, J.,

Before this court is defendant Magdy Mekhail’s (“defendant”) motion for summary judgment. The matter is ripe for disposition and after review, the motion for summary judgment is denied and dismissed.

FACTUAL SUMMARY

On August 27,2011, as plaintiff Bob Ward (“plaintiff’) was walking along a sidewalk to his apartment when he was allegedly bitten by a German shepherd owned by defendant’s co-defendant Michael Edwards (“Edwards”). Both plaintiff and Edwards lived in the apartment. Edwards’ dog resided there with him. Plaintiff suffered serious and permanent injuries from the attack. Defendant controlled the property where plaintiff was attacked. The property was managed by defendant’s sister, Mary Rizkalla (“Rizkalla”). Rizkalla allegedly became aware of the dog’s dangerous propensities when she collected rent and arranged repairs, bills, and maintenance of the apartment. In her capacity as agent, Rizkalla informed her brother of the dog’s dangerous propensities.

Rizkalla worked with her brother to manage the property by collecting rent and giving him the bills. Rizkalla dep. at 14; Mekhail dep. at 18-19. She threatened to evict tenants who did not pay their monthly rent and put notes on their door indicating the same. Rizkalla dep. at 15, 29. Rizkalla gave renters her phone number and they contacted her when there were problems with the building or repairs needed. Rizkalla dep. at 15,29; Mekhail dep. at 18-19,25-26. After tenants contacted Rizkalla with any problems, she communicated the issues to her brother, either by phone or during visits to him in New Jersey. Rizkalla, at 29-30; Mekhail dep. at 18-19, 25-26. Defendant would arrange to pay bills after Rizkalla informed him of costs. Rizkalla dep. at 30.

Testimony by defendant’s tenants likewise indicates how Rizkalla served as his agent. Edwards, owner of the dog, testified that he rented his apartment from Mary Rizkalla and considered her landlord of the building. Id. at 9-10. Plaintiff said he gave his rent to Rizkalla and wrote his rent checks to defendant because Rizkalla told him to. Id. at 36-37. Edwards testified that he heard Rizkalla say she was property manager to a magistrate judge at an eviction hearing. Id. at 9-10, 21-22, 23, 36-37. These facts could support a jury’s finding that Rizkalla was defendant’s agent.

A jury could also find that Rizkalla was aware of the dog’s vicious propensities when she acted as defendant’s agent and relayed this information to defendant in her capacity as his agent. While being deposed, Rizkalla, a veterinarian for 40 years, testified that she “did not like the idea of having the dog.” Rizkalla dep. at 8, 23; See also, Mekhail dep. at 23-24. She also testified that she recognized the dog as unfriendly and unsociable before the incident at issue in this case. The first time the dog growled at her when she walked by it, she told Edwards to get rid of it. Id. at 21-22. Tenants voiced complaints about the dog to Rizkalla prior to its attack on plaintiff, and told her they tried to avoid the dog and would not go outside when they knew it was there. Id. at 23, 25-26. Edwards testified that Rizkalla told him other tenants were scared of the dog and complained about it to her. Edwards dep. at 16-17.

A jury could also find that Rizkalla communicated to defendant her awareness of the dog’s dangerous propensities and tenants’ complaints and reactions to it during the scope of her agency with him. Defendant testified that his sister informed him that the dog growled and threatened other tenants before the dog bite at issue in this case. Defendant also testified that Rizkalla informed him that she told Edwards several times before the incident to get rid of the dog. Id. at 29-30, 45. Defendant does not recall how long before the incident he and Rizkalla had these conversations. Id. at 45. However, Defendant’s testimony indicating his awareness of the dog through conversations with Rizkalla is conflicting; he says later in this same examination by counsel that he did not know prior to the incident that Edwards had a dog or about the dog’s propensities. Id. at 51-52.

PROCEDURAL SUMMARY

Defendant filed this motion for summary judgment on November 26, 2012 and filed a brief in support of the motion on January 2, 2013. Plaintiff responded to the motion on December 6,2012. Plaintiff’s brief in opposition to the motion for summary judgment was filed on January 22, 2013.

ARGUMENT OF THE PARTIES

Defendant’s Argument

Defendant’s argues he neither had knowledge of the dog’s vicious propensities nor controlled the dog that attacked plaintiff. Defendant acknowledges that Pennsylvania permits recovery to an injured plaintiff when a landlord has actual knowledge of the animal’s vicious propensities, but denies there is evidence to support that he knew the dog was dangerous. Defendant also argues that a landlord who does not control the premises cannot be liable for a tenant’s dog, and that the Pennsylvania Dog Law does not apply to an individual who does not own or control a dog.

Plaintiff’s Argument

Defendant’s motion for summary judgment should be denied because Rizkalla’s knowledge of the dangerous dog can be imputed to defendant, her principal. Rizkalla, as agent, was aware of the dog’s dangerous propensities and allegedly relayed that information to defendant.

LEGAL ANALYSIS

Motion for Summary Judgment

When deciding a motion for summary judgment, the rules require that there be no genuine issues of material fact and that the moving party be entitled to judgment as a matter of law. Deutsche Bank Nat. Trust Co. v. Smith, 2010 WL 2940767 (Ct. Com. Pl. July 22, 2010) (citing Pa.R.C.P. 1035.2(1)); Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010). A material fact is one that directly affects the outcome of the case. Kuney v. Benjamin Franklin Clinic, 751 A.2d 662, 664 (Pa. Super. 2000). A proper grant of summary judgment depends upon an evidentiary record that either: 1) shows that the material facts are undisputed; or 2) contains insufficient facts to make out a prima facie cause of action or defense and therefore, there is no issue to submit to jury. Gateway Towers Condominium Ass’n v. Krohn, 845 A.2d 855, 858 (Pa. Super. 2004); See also Pa.R.C.P. 1035.2.

In a motion for summary judgment, the record must be viewed in the light most favorable to the non-moving party and any doubt must be resolved against the moving party. Deutsche Bank Nat. Trust Co. v. Smith, 2010 WL 2940767, supra. A nonmoving party may not rely merely upon allegations in pleadings, or his answers to survive summary judgment, but must set forth specific facts by way of affidavit or in some other way to demonstrate that genuine issue of material fact exists. Banks v. Trustees of University of Pennsylvania, 666 A.2d 329 (Pa. Super. 1995); See also Pa.R.C.P. 1035.2; JP Morgan Chase Bank, N.A. v. Murray, 2013 WL 1092850 (Pa. Super. 2013); Aurora Loan Services LLC v. Molina, 2008 WL 8745691 (Ct. Com. Pleas 2008).

Landlord’s Liability for Knowledge of Dangerous Animal on his Property

In order to establish a cause of action in negligence against a landlord for injuries caused by his tenant’s dog, it must be proven that the landlord owed a duty of care, breached that duty, and that the injuries sustained were proximately caused by the breach. Rosenberry v. Evans, 48 A.3d 1255 (Pa. Super. 2012) (citing Martin v. Evans, 551 Pa. 496, 711 A.2d 458 (1998)). A duty to use reasonable care will attach to prevent such injuries if the landlord has knowledge of a dangerous animal on the rented premises and if the landlord enjoyed the right to control or remove the animal by retaking the premises. Rosenberry v. Evans, 48 A.3d 1255 (Pa. Super. 2012); Palermo by Palermo v. Nails, 334 Pa. Super. 544, 483 A.2d 871 (1984) (hereinafter “Palermo"); cf. Feld v. Merriam, 314 Pa. Super. 414, 461 A.2d 225 (1983). In Pennsylvania, a landlord out of possession is not liable for attacks by animals kept by his tenant on leased premises when the tenant has exclusive control over the premises. Palermo, 334 Pa. Super. 544, 483 A.2d 871 (1984) (citing Collins v. Otto, 149 Colo. 489, 369 P.2d 564 (1982); Denagy v. Doscher, 40 Misc.2d 643, 243 N.Y.S.2d 575 (1963); cf. Juarbe v. City of Philadelphia, 288 Pa. Super. 330, 431 A.2d 1073 (1981)).

A landlord’s knowledge of the presence of a dangerous animal can be inferred from facts and circumstances. Rosenberry, supra; see also, Underwood ex rel. Underwood v. Wind, 954 A.2d 1199, 1207 (Pa. Super. 2008). In Palermo, 334 Pa. Super. 544, 483 A.2d 871, the court found a landlord liable for appellee’s injuries sustained from an attack by a tenant’s vicious dog because the landlord, owner of the property, had almost exclusive control over the premises, had formed a close relationship with the tenant who owned the dog, visited the premises on numerous occasions, and allowed the dog’s owner to live there with the dog even though the landlord had actual knowledge that the dog was vicious. The landlord could have taken steps to remove the dog and prevent injury to appellee, but did not. Palermo, 334 Pa. Super, at 547-48, 483 A.2d at 873-874. Facts supporting the landlord’s actual knowledge of the dog’s dangerous propensities in Palermo are similar to facts described in testimony in the present case regarding defendant’s apparent knowledge of the dangerous dog, as will be discussed hereinafter.

Imputing an Agent’s Knowledge to the Principal in Landlord-Tenant Relations

A landlord’s knowledge of a dog’s dangerous and vicious propensities can also be imputed to a principal through an agent’s knowledge of the dangerous dog. In Rosenberry, the Pennsylvania Superior Court explained that an agent’s knowledge of a dog’s dangerous propensities can be imputed to the landlord. The court’s rationale was that “knowledge of an agent, acting within the scope of his authority, real or apparent, may be imputed to the principal.

. .and therefore, knowledge of the agent is knowledge of the principal.” Rosenberry, 48 A.3d at 1262; See Evening Bulletin, 445 A.2d 1190 (Pa. 1982). “The key and distinctive feature of an agency relationship is the agent’s power to affect the legal relationship of the principal with third parties: e.g., entering into contracts for them, buying or selling goods for them, or subjecting the principal to tort liability. ” Wisiniski v. Brown & Brown Ins. Co. of Pa. 906 A.2d 571, 577 (Pa. Super. 2006) (emphasis added). However, knowledge of an agent acting in the scope of his authority is not imputed to the principal when the facts known by the agent are not material to his duties to the principal.” Id. (emphasis added). In Rosenberry, because

the record suggest[ed] that the dog had been on the property only several weeks, no more than a couple months, when this incident occurred; there was no evidence that the dog displayed any obvious vicious characteristics; the record was devoid of any evidence that Landlord ever witnessed the occasional teeth clenching; the dog owner’s rental was for a trailer with surrounding property, not an apartment in a building, [hence] one could not infer that in visiting the premises, Landlord would have been in such close proximity to the dog to see the tic displayed or hear the clenching sound produced; [and] there were no dangerous dog signs posted on the property and no complaints of the dog’s viciousness or dangerousness,

the Superior Court affirmed the trial court’s order granting summary judgment. Based on the above facts, there was “no evidence from which one could reasonably infer that Landlord had actual knowledge of the dog’s alleged dangerous propensities to impose a duty of care.” Id. at 1264 (citing Zator v. Coachi, 939 A.2d 349, (Pa. Super. 2007) (summary judgment proper when evidentiary record contains insufficient evidence of facts to make out a prima facie cause of action or defense)).

Nanty-Glo Rule: Testimony Alone is Not Sufficient for Motion for Summary Judgment

Courts inquiring into a landlord’s knowledge of a tenant dog’s dangerous propensities on a motion for summary judgment have applied the “Nanty-Glo” rule to analyze whether there is a genuine issue of material fact as to the landlord’s knowledge, when that knowledge is illustrated only through oral testimony. See Rosenberry, 48 A.3d at 1260 (Pa. Super. 2012). Nanty-Glo was recently applied by the Pennsylvania Superior Court in a case regarding a landlord’s liability for a tenant’s vicious dog in 2012. Rosenberry v. Evans, 48 A.3d 1255 (Pa. Super. 2012) (noting Nanty-Glo was reaffirmed and expanded to encompass summary judgment) (internal citations omitted). In Borough of Nanty-Glo v. American Surety Co. of New York, 309 Pa. 236, 163 A. 523, 524 (1932), the Pennsylvania Supreme Court held that a directed verdict could not be entered where the moving party relied exclusively on oral testimony, either through affidavits or deposition, even if uncontradicted, to establish the absence of a genuine issue of material fact. Nanty-Glo, 309 Pa. 236, 163 A. 523 (Pa. 1932); See also Garcia v. Savage, 402 Pa. Super. 324, 586 A.2d 1375, 1377-78 (1991). The rationale behind Nanty-Glo is that “testimonial affidavits of the moving party or his witnesses,... will not afford sufficient basis for the entry of summary judgment, since the credibility of the testimony is still a matter for the jury.” Scalice v. Pennsylvania Employees Benefit Trust Fund, 883 A.2d 429, 432 & n.5 (Pa. 2005) (reversing summary judgment); Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989). An exception to Nanty-Glo is when the moving party relies upon uncontradicted testimony of another party, even a co-defendant, who is an adverse party and equally liable to plaintiff. Rosenberry v. Evans, 48 A.3d at 1259-60 (Pa. Super. 2012) (internal citations omitted). In Rosenberry, pursuant to Nanty-Glo, the court denied defendants’ motion for summary judgment when co-defendants offered the same testimony about the dog’s dangerous propensities, and all had the same interest in showing that the dog was not dangerous. Rosenberry, 48 A.3d at 1260.

Nanty-Glo Applies, and the Court Must Allow a Jury to Determine What Defendant Knew About the Dog. Defendant’s Motion for Summary Judgment is Denied.

Both Rizkalla and MekhaiPs testimony strongly suggests that Rizkalla communicated her awareness of the dangerous dog to defendant in her capacity as agent to him. This testimony also suggests that defendant was aware of the dog’s dangerous propensities since Rizkalla informed him on several occasions of the dog’s viciousness in the scope of her agency with him. Rizkalla dep. at 8, 23; Mekhail dep. at 21-26, 29-30, 45. The only evidence supporting defendant’s claim that he was not informed of the vicious propensities of the dog is from his deposition testimony. Mekhail dep. at 51-52. This oral testimony alone is insufficient to remove the issue of material fact from the jury’s consideration. Therefore it provides an insufficient basis for the requested entry of summary judgment. This is so because credibility of the testimony remains a matter for the jury. See, e.g. Scalice, 883 A.2d at 432 & n.5; See also Nanty-Glo, 309 Pa. 236 at 523. The court must therefore defer to the jury as fact finder to determine and conclude whether or not defendant knew of the dangerous dog either directly or vicariously through his agent. Therefore we deny defendant’s motion for summary judgment. An appropriate order follows.

ORDER

And now, this 5th day of April, 2013, it is hereby ordered and decreed that defendant’s motion for summary judgment is hereby denied and dismissed.

      . The Restatement (3d) of Agency Section 1.01 defines agency as “the fiduciary relationship that arises when one person (a “principal”) manifests assent to another person (an “agent”) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act.


author: ZULICK, J.,

text:
    Platukis v. Pocono Segway Tours LLC

      C.P. of Monroe County,
    No. 6941 CV 2012.

      Daniel J. McCarthy, for plaintiffs

      John M. Solt, for defendants
    April 8, 2013
   ZULICK, J.,

On August 19, 2010, Alison and Jude Platukis (together “plaintiffs”) took part in a Segway tour provided by Pocono Segway Tours LLC (“Pocono Segway”) in exchange for a fee. The “tour guide” was Dante Mariano (“Mariano”). While driving her Segway, Mrs. Platukis was involved in a collision. Plaintiffs alleged that Mariano crashed his Segway into the one operated by Mrs. Platukis. Further, plaintiffs alleged that Mariano was using a cellular phone at the time of the collision, and was operating the Segway at an excessive rate of speed. Plaintiffs filed suit against both Mariano and Pocono Segway, alleging negligence on behalf of Mariano, seeking vicarious liability against Pocono Segway, punitive damages against both defendants, and loss of consortium damages for Mr. Platukis.

Defendants filed preliminary objections, seeking to strike the prayer for punitive damages from the complaint with prejudice. The parties filed briefs and argued their positions on April 1, 2013.

DISCUSSION

Defendants’ preliminary objections to the request for punitive damages are in the nature of a demurrer. In considering preliminary objections, “all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences deductible therefrom, must be accepted as true.” Wurth by Wurth v. City of Philadelphia, 584 A.2d 403, 407 (Pa. Cmwlth. 1990). The “court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion.” Penn Title Insurance Co. v. Deshler, 661 A.2d 481, 483 (Pa. Cmwlth. 1995).

Punitive damages are an ‘extreme remedy’ available only in the most exceptional circumstances.
Additionally, punitive damages may be appropriately awarded only when the plaintiff has established that the defendant has acted in an outrageous fashion due to either the defendant’s evil motive or his reckless indifference to the rights of others.

Phillips v. Cricket Lighters, 584 Pa. 179, 188 (2005) (internal citations omitted). “The trial judge must determine in the first instance whether the plaintiff has presented sufficient evidence to support a punitive damage claim, which requires evidence on which the jury might reasonably conclude that outrageous conduct has been established by a preponderance of the evidence.” Rizzo v. Michener, 584 A.2d 973, 979 (Pa. Super. 1990).

As plaintiffs have not alleged Mariano to have an evil motive, they must show that Mariano actions were outrageous and that outrageous behavior was due to Mariano’s reckless behavior.

A defendant acts recklessly when his conduct creates an unreasonable risk of physical harm to another and such risk is substantially greater than that which is necessary to make his conduct negligent. Thus, a showing of mere negligence, or even gross negligence, will not suffice to establish that punitive damages should be imposed.

Phillips, 584 Pa., at 188 (internal citations omitted).

Taken in the light most favorable to plaintiffs, the following occurred. The Segway driven by Mariano collided with that driven by Ms. Platukis. Mariano was distracted as he was using his cell phone at the time of the collision, and was driving at excessive speeds given the conditions. Plaintiffs had never before used a Segway, and Mariano was aware of that. Plaintiffs were not given adequate safety equipment.

Even if true, these facts would not give rise to punitive damages. “When assessing the propriety of the imposition of punitive damages, the state of mind of the actor is vital; the act, or the failure to act, must be intentional, reckless or malicious.” Hutchinson ex. rel. Hutchinson v. Luddy, 582 Pa. 114, 122 (2005) (citations omitted). The amended complaint does not speak at all to Mariano’s state of mind, beyond superficial allegations that Mariano acted in a reckless manner. Mariano’s alleged actions are not substantially riskier than would be necessary to show that his conduct was negligent. While using a cellular phone while operating a motor vehicle is undoubtedly risky, that alone still does not give rise to the state of mind necessary to find Mariano acted recklessly. Therefore, a jury could not reasonably find that Mariano’ behavior and actions were outrageous by a preponderance of the evidence. Accordingly, defendants’ preliminary objection is granted.

ORDER

And now, this 8th day of April, 2013, upon consideration of defendants’ preliminary objection, plaintiffs’ response, and the argument by both parties, it is ordered that defendants’ preliminary objection is granted. Plaintiffs’ request for punitive damages is stricken without prejudice. Defendants are directed to file an answer to the complaint within twenty (20) days.