author: LASH, J,

text:
    Missionary Sisters of the Most Sacred Heart of Jesus Inc. v. Berks County Board of Assessment Appeals

      C.P. of Berks County,
    no. 04-13889.

      Paul T. Essig and Molly K. Starr, for appellant.

      Edwin L. Stock, for appellee.
    June 6, 2005
   LASH, J,

The appellant, Missionary Sisters of the Most Sacred Heart of Jesus ínc., has appealed the decision of the Berks County Board of Assessment Appeals granting a partial exemption to real estate owned by Missionary Sisters. The board had assessed the property at $6,186,200, with the taxable portion of the assessment being $1,870,000. Anon-jury trial was held on May 10, 2005. The sole issue raised on appeal is whether the premises is fully exempt from local taxation as an institution of purely public charity.

This court makes the following findings of fact:

I. FINDINGS OF FACT

(1) The appellant, Missionary Sisters of the Most Sacred Heart of Jesus Inc., is a Pennsylvania nonprofit corporation with its principal place of business located at 2811 Moyer Lane, Reading, Berks County, Pennsylvania 19605.
(2) The appellee, Berks County Board of Assessment Appeals, is located at the Berks County Services Center, Third Floor, 633 Court Street, Reading, Berks County, Pennsylvania 19601.
(3) The property that is subject to this appeal is located at 51 Seminary Avenue, Muhlenberg Township, Muhlenberg School District, Berks County, Pennsylvania, and consists of approximately 41.93 acres of land, together with a convent building and cemetery site for the sisters.
(4) The Missionary Sisters have always provided for the care of their sick and elderly members by maintaining its own nursing facilities located in the convent building.
(5) The cost of this care is borne by Missionary Sisters, however, sisters receiving Social Security or SSI benefits transfer these benefits to Missionary Sisters to help defray the costs of their care.
(6) Sisters residing in a personal care service facility receive increased Social Security benefits.
(7) In an effort to better care for their elderly and sick members, the Missionary Sisters opened the convent as a licensed personal care service facility, thereby maintaining their ability to care for those sisters in need of assisted and skilled care and entitling those sisters to additional SSI benefits.
(8) The Missionary Sisters created the Sacred Heart Villa, a Pennsylvania nonprofit corporation, which is controlled by the Provincial Superior and the Provincial Councilors of the order, to operate the licensed personal care services facility.
(9) The Sacred Heart Villa has been designated as a section 501(c)(3) organization by the Internal Revenue Service.
(10) On or about May 21, 2004, the Commonwealth of Pennsylvania, Department of Public Welfare, issued a personal care services license to Sacred Heart Villa.
(11) The Sacred Heart Villa is certified by DPW to operate personal care services for up to 100 persons.
(12) On or about May 27,2004, the missionary sisters entered into a lease agreement with Sacred Heart Villa for the convent building to operate the personal care services facility (subject property).
(13) The number of sisters requiring personal care services has consistently been substantially less than 100 persons. Currently, 57 sisters reside in the convent and utilize the personal care services.
(14) To fill the remaining available beds, and to help defray the costs, Sacred Heart Villa has accepted qualified members of the public as residents.
(15) Sacred Heart Villa has designated 40 beds for the public, located in the front portion of the convent.
(16) A public applicant qualifies to become a resident if the applicant establishes ownership of sufficient assets to pay the cost for his care from the inception of the residency through his estimated life expectancy.
(17) While ownership of sufficient assets must be established to qualify the applicant, the assets are not immediately transferred to Sacred Heart Villa, but remain in the applicant’s possession, who is responsible for paying the monthly residency fee from the assets, or from Social Security or pension benefits received.
(18) Sacred Heart Villa does not require that the assets be escrowed, that a lien be placed upon the assets, or that the resident be otherwise legally bound to transfer the assets to Sacred Heart Villa.
(19) If the resident’s assets are used up and the applicant is unable to continue to pay the costs of the personal care, the resident nevertheless may continue to reside at the convent for the duration of his life, without paying any additional costs.
(20) Sacred Heart Villa leases the space from the Missionary Sisters for an annual rental of $173,166.12.
(21) The Missionary Sisters pay to Sacred Heart Villa resident fees for the care of their elderly members.
(22) In 2004, the Missionary Sisters paid approximately $734,183.81 to Sacred Heart Villa in resident fees for those sisters requiring assisted care.
(23) In 2004, the Missionary Sisters paid approximately $189,600 to Sacred Heart Villa in resident fees for those sisters requiring skilled care.
(24) In 2004, Sacred Heart Villa received approximately $87,585 in resident fees from qualified members of the public for non-skilled living care and $12,000 for skilled living care.
(25) In 2004, Sacred Heart Villa had revenues in an approximate amount of $1,070,624.05.
(26) In 2004, Sacred Heart Villa had expenses in an approximate amount of $1,715,994.14.
(27) In 2004, the Missionary Sisters subsidized the Sacred Heart Villa in an approximate amount of $862,255.60 in order to maintain its operation.
(28) The Assessment Office changed the assessment from a total exemption of $5,737,800 to a partial exemption of $4,316,200 and taxable $1,870,000, for a total assessment of $6,186,200.
(29) On or about July 14, 2004, the Missionary Sisters filed an appeal on the amount of the assessment and on the issue of exemption.
(30) On or about August 16, 2004, the board upheld the determination of the Assessment Office and sent a final notice of the determination on September 2,2004.
(31) On or about September 24,2004, the Missionary Sisters appealed the board’s determination to the Court of Common Pleas of Berks County.
(32) By order dated February 16,2005, this honorable court bifurcated the proceedings and this issue of exemption is now before the court.

II. DISCUSSION

The authority permitting certain real estate to be declared exempt as a purely public charity appears in Article VIII, Section 2(a) of the Constitution of the Commonwealth of Pennsylvania, which provides in part: “The General Assembly may by law exempt from taxation: ... (v)(d) Institutions of purely public charity ....”

From this authority, the General Assembly provided in section 204(a)(3) of the General County Assessment Law that the following properties shall be exempt from all county, city, borough, town, township, road, poor and school tax:

“(3) All hospitals, universities, colleges, seminaries, academics, associations and institutions of learning, benevolence, or charity, including fire and rescue stations, with the grounds thereto annexed and necessary for the occupancy and enjoyment of the same, founded, endowed and maintained by public or private charity; provided, that the entire revenue derived by the same be applied to the support and to increase the efficiency and facilities thereof, the repair and the necessary increase of grounds and buildings thereof, and for no other purposes:..

Interpretation of exemption of real estate owned by public charities is now governed by the Institution of Purely Public Charity Act. To qualify as an institution of purely public charity, section 375(a) sets forth five criteria. First, the institution must advance a charitable purpose. Second, the institution must operate entirely free from a private profit motive. Third, the institution must donate or render gratuitously a substantial portion of its services. Fourth, the institution must benefit a substantial and indefinite class of persons who are legitimate subjects of charity. Finally, the institution must relieve the government of some of its burden.

Missionary Sisters has the burden to establish exemption as an institution of purely public charity. Borough of Homestead v. St. Mary Magdalen Church, 798 A.2d 823, 826 (Pa. Commw. 2002). The board agrees that the second criterion, that Missionary Sisters operates free from a private profit motive, is met. The board argues, however, that Missionary Sisters fails to meet any of the other four criteria. In essence, the board believes that the portion of the building designated for personal care services for the general public should not be included as exempt because these members are subject to paying market rate monthly charges which ultimately may produce profit.

The Sacred Heart Villa is a 501(c)(3) corporation created by Missionary Sisters to provide a personal care facility for sisters of the order, as well as members of the general public. Missionary Sisters leases the St. Michael’s convent building to Sacred Heart Villa, who provides a facility of 100 beds, iurnishing personal care services certified by the DP W. The facility features a large building with a chapel, a social hall, a dining room, well-kept grounds and single and double space rooms for the residents.

Missionary Sisters has historically been responsible for caring for sisters in need of personal or assisted care, including paying the costs for their care. The decision to incorporate Sacred Heart Villa to provide a certified personal care facility subsidized the cost to Missionary Sisters for the care of the sisters in two ways. First, to assist in the cost of their care, any sister eligible for Social Security or SSI benefits would transfer those benefits to Missionary Sisters. Once a sister became a member of a personal care facility, however, she became entitled to an additional allotment from the federal government. Typically, the SSI benefit would increase from $440 to $770 per month.

Secondly, the size of the convent was more than was needed for the care of the sisters. By opening the convent to the public, additional income could be generated. Currently, 57 sisters reside in the convent and utilize the personal care services. There is available space in the front of the convent for up to 40 members of the public.

Currently, the residential fee charged by Sacred Heart Villa to a public resident ranges from $ 1,425 a month up to $3,000 a month. To qualify for a room, an applicant from the public sector must own assets sufficient to pay the cost of his care from the time care commences through his estimated life expectancy. The assets are not turned over to Sacred Heart Villa nor escrowed, but are merely pledged as being available. The resident is charged on a monthly basis, paying costs from the reserved assets, as well as from any Social Security or pension benefits received. The public resident receives the same care and has access to the same programs and facilities as do the sisters residing in the convent.

Sacred Heart Villa operates annually at a loss. The shortfall is assumed by Missionary Sisters. Considering solely the income and expense attributable to the public residency, that portion of the operation also shows a loss. However, if all the beds allotted to the public were filled, it is expected that a net profit would be generated. Nevertheless, all income or profit realized from the public use merely reduces the amount of the subsidy paid by Missionary Sisters to Sacred Heart Villa.

By finding the property partially exempt, the board concedes that the personal care services provided for the sisters fully meet the criteria of the Act. They contend, however, that the services provided to public residents should be analyzed separately merely because those residents are required to pay market rates and must qualify for residency through the pledging of owned assets sufficient to cover the costs of residency through their life expectancy.

We disagree. The benefits received by the public here cannot be considered separate and apart from the benefits provided to the sisters. The primary goal of the Missionary Sisters is to provide personal care services for the sisters in a pleasant and attractive setting. Were it not for the pursuit of this purpose and the fact that there is substantial additional space available, personal care services for public residents would not have been made available. The public residents’ dependence upon the larger purpose is manifest in the standard of care provided consistent with that received by the sisters and free access to the same facilities and programs available to the sisters. Most importantly, the subsidy provided by Missionary Sisters cover the loss incurred by Sacred Heart Villa in providing residency to the public.

The board’s position that the payor status of the public residents is sufficient to disqualify the Missionary Sisters as a public charily is not accurate. The financial qualifications are based on life expectancy. If a resident exceeds his life expectancy, Sacred Heart Villa continues to care for the resident at no additional cost. Secondly, while the value of the assets must be sufficient at the time of application, Sacred Heart Villa does not require the resident to bind himself to maintain the assets for eventual payment for the costs of the care. Thus, if the resident transfers or squanders his assets before they are exhausted through payment to Sacred Heart Villa, he nevertheless may continue in his residency at no additional cost. Finally, all income generated from the residents’ assets, Social Security and pension merely defray the cost of the operating expenses of Sacred Heart Villa, which nevertheless operates at a substantial loss, requiring subsidy from Missionary Sisters.

As stated in the case of Grace Center Community v. County of Indiana, 796 A.2d 1008, 1011 (Pa. Commw. 2002), an institution which collects fees or charges for its services and absorbs only a fraction of its cost can qualify for tax exemption as a purely public charity. The Commonwealth Court in Grace Center cites the Pennsylvania Supreme Court in the case of Presbyterian Homes Tax Exemption Case, 428 Pa. 145, 236 A.2d 776 (1968), stating:

“In Presbyterian Homes, our Supreme Court held that a rest home qualified for charitable tax-exempt status where many residents paid their way completely and covered 80 percent of the operational costs of the rest homes. The court stressed that the rest home had never in any year realized a profit and, even more important, if there were profit, it would not go to an individual or to a corporation operated for private profit. Presbyterian Homes, 428 Pa. at 153-54, 236 A.2d at 780. Our Supreme Court noted:
“ ‘The courts have long recognized and declared that charity is not limited to giving alms, is not confined to relief of the poor, may extend to the rich in areas where they are not able to care for themselves, and extends to those social objectives which promote the general welfare and would be served by the government in the absence of philanthropic enterprises such as homes for the aged. Historically, and well-nigh unanimously, the courts have found homes for the aged to be charitable institutions where conducted at cost or less. They have also recognized that man, especially the old, does not live by bread alone; that though he be able to pay for all material wants he nevertheless may be dependent upon his fellow man or the government to protect him from the haunting fear of loss of all his property with resultant poverty, fear of illness or other physical disability overtaking him with no one near to help, fear of the loneliness arising from absence of social contacts, fear of any of the tragedies of old age where there is no one standing by to help.’
“Id. at 152,236 A.2d at 779-80. (emphasis added) (citations omitted)” Grace Center, supra at 1012.

Looking specifically at the criteria under the Act, we find that Missionary Sisters has met its burden. First, Missionary Sisters advances a charitable purpose. A charitable purpose does not require the resident to be destitute. City of Washington v. Board of Assessment Appeals of Washington County, 550 Pa. 175, 704 A.2d 120 (1997). As already cited, homes for the aged have been found to be charitable institutions where conducted at cost or less. In Lutheran Home at Topton v. Schuylkill County Board of Assessment Appeals, 782 A.2d 1 (Pa. Commw. 2001), the Commonwealth Court affirmed the trial court regarding a retirement home who required the resident to pay a processing fee of $100, and to have sufficient assets to pay privately for services for a reasonable period of time, with the rates being higher per square foot than market price. Those without the ability to pay at time of application were denied admission. The court found that the retirement home advanced a charitable purpose because care for the residents continued even when they became unable to pay for the services.

Secondly, there is no doubt that Missionary Sisters donates substantial funds for the personal care services. According to undisputed documentation, Sacred Heart Villa experienced a loss of $862,955.35 for 2004. The projected loss for 2005 is $662,505. Looking solely at the public population, the projected loss for 2005 is $26,3 82.16. Should the payments from the public population eventually generate a profit, that profit would nevertheless be subsumed within the overall loss of the operation upon which the public population is dependent.

Regarding the next criterion that the charity benefit a substantial and indefinite class of persons who are legitimate subjects of charity, the board contends, once again, that the public residents are not part of this class because “these are people with assets and sources of income.” However, for reasons already set forth, these residents are also legitimate subjects of charity. As stated in In re City of Washington, 550 Pa. 175, 185, 704 A.2d 120, 125, “There is no requirement, however, that all of the benefits bestowed by a purely public charity go only to the financially needy.” (emphasis in original)

Sacred Heart Villa continues to care for those whose assets are exhausted. This alone is sufficient to qualify the residents as subjects of charity. See Presbyterian Homes and Lutheran Home at Topton, supra. Further, while the assets and income may be sufficient for admission, the assets and income may not be sufficient to cover prevailing fees for comparable facilities. “Persons who are financially secure may nevertheless be ‘poor’ in relation to the outlays needed to obtain certain services in the absence of charity.” Hahn Home v. York County Board of Assessment Appeals, 778 A.2d 755, 762 (Pa. Commw. 2001), citing City of Washington, 550 Pa. at 184, 704 A.2d at 124. Thus, the costs of the care which the public residents share with the sisters may be significantly more affordable over the course of their life than would be the case if they were relegated to obtaining services from a noncharitable organization. This court finds that this criterion is met.

Finally, we find that the last criterion, that Missionary Sisters relieves the government of some of its burden, is satisfied. On similar facts, the Commonwealth Court affirmed the trial court in the case of Lutheran Home at Topton, supra at 6-7, noting that the institution “was found to relieve the government of some of its burden by providing the ‘costs of meeting a resident’s most basic needs ... free of charge if he runs out of funds’ and by providing the ministries programs to the community.” In support, the Commonwealth Court cited St. Margaret Seneca Place v. Board of Property Assessment Appeals and Review, 536 Pa. 478, 640 A.2d 380 (1994), as follows:

“ ‘ [T]he public will fund the patient’s care at a public institution.... [which] is deemed to be a public responsibility. The aged in need of medical care are legitimate objects of charity.... The partial subsidy of the costs of caring for an elderly patient is unquestionably a charitable act.’ St. Margaret, 536 Pa. at 485,640 A.2d at 383-84. A finding that the institution has fully funded the care of some people who would otherwise be fully funded by the government is not required in determining whether an institution has relieved the government of some of its burden. The test is whether the institution bears a substantial burden that would otherwise fall to the government. Id. at 488, 640 A.2d at 385.
“ ‘ [T]he absence of indigent residents who receive no government support is not surprising, and is certainly not, standing alone, enough to disqualify a nursing home from an exemption as a purely public charity. In modem America it is hard to find any person in need of nursing home care who is uninsured, unable to pay, and wholly ineligible for government support in the form of Medicare or Medicaid coverage.’
“Id. at 483, 640 A.2d at 382.” Lutheran Home at Top ton, supra at 6.

This court holds that Missionary Sisters qualifies as a purely public charity under the Act and is, therefore, entitled to total exemption for the subject property. Accordingly, we enter the following order:

ORDER

And now, June 6,2005, upon consideration of the appeal of Missionary Sisters of the Most Sacred Heart of Jesus Inc., from the decision of the Board of Assessment Appeals of Berks County, Pennsylvania, and after trial held, the decision of the Board of Assessment Appeals granting appellant a partial exemption for the property located at 51 Seminary Avenue, Muhlenberg Township, Berks County, Pennsylvania, pin no. **_****_.**_**_ ****-***, is reversed. Appellant shall receive full exemption from property tax assessment for the aforesaid property.

      . 72 P.S. §5020-204(a)(3).

      . Purely Public Charity Act, 1997, November 26, P.L. 508, no. 55, §1, 10 P.S. §371.

      . 10 P.S. §375(a).


source: Caselaw Access Project

author: NORDENBERG, Member,

license: Public Domain

text:
    Office of Disciplinary Counsel v. Weaver

      Disciplinary Board Docket no. 56 D.B. 2004.
    March 4, 2005
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

NORDENBERG, Member,

Pursuant to Rule 208(d) (2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

On April 8,2004, Office of Disciplinary Counsel filed a petition for discipline against respondent, Carol J. Weaver. The petition charged respondent with misappropriation and commingling of entrusted funds. Respondent did not file an answer to petition.

A disciplinary hearing was held on September 9,2004, before Hearing Committee 2.10 comprised of Chair Anna M. Durbin, Esquire, and Members Karen J. Schular, Esquire, and Raymond Peppelman Jr., Esquire. Respondent did not appear for the hearing.

The committee filed a report on December 6, 2004, finding that respondent violated the Rules of Professional Conduct as charged in the petition for discipline, and recommending that respondent be suspended from the practice of law for a period of one year and one day.

No briefs on exceptions were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting of January 19, 2005.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is situated at Suite 1400, 200 North Third Street, Harrisburg, PA 17101, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.
(2) Respondent, Carol J. Weaver, was bom in 1956 and was admitted to practice law in the Commonwealth of Pennsylvania in 1983. She maintains her office at 644 Walnut Street, Easton, PA 18042, and also resides at that address.
(3) Respondent is subject to the jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.
(4) Respondent has a prior history of discipline consisting of two informal admonitions administered in 1999.
(5) During the time period in question, respondent maintained an IOLTA Trust Account at First Union National Bank, titled Carol J. Weaver, Attomey-at-Law, attorney trust account.
(6) On April 6, 1998, respondent received $30,000 from Robert J. Szeman.
(7) Respondent deposited Mr. Szeman’s monies into her escrow account and agreed to hold those monies in trust on behalf of Mr. Szeman.
(8) By letters dated June 4, 2002, and June 11, 2002, Mr. Szeman requested respondent to provide him with the entire balance of the monies that respondent was holding in her escrow account, minus any legal fees.
(9) On June 25,2002, respondent provided Mr. Szeman with a handwritten document that respondent signed and endorsed.
(10) Respondent’s document represented that there were no legal fees as of June 25, 2002, and the balance in her escrow account as of June 25,2002, was $20,000.
(11) By letter dated July 3,2002, Mr. Szeman requested respondent to provide him with a check for the balance of his monies and the packages of his confidential papers he had provided to respondent.
(12) Respondent provided Mr. Szeman with a letter dated July 9,2002, which stated that “As I told you, and you agreed to, I will look to a solution of this request. When I find one, I will be in touch.”
(13) By letter dated July 10, 2002, Mr. Szeman requested respondent to set up an appointment for him to pick up the $30,000 cash, or an amount of cash close to $30,000.
(14) Mr. Szeman mailed a copy of the July 10, 2002 letter to respondent on the following dates: July 18, July 29, August 7, August 14, August 26, September 4, September 17, October 10, October 21, December 6, 2002, and January 11, January 20, January 28, February 10 and February 23, 2003.
(15) Respondent has not responded in any manner to Mr. Szeman’s letters.
(16) By letter dated March 23,2003, sent by certified mail, return receipt requested, Mr. Szeman requested respondent to provide him with his $20,000 being held in respondent’s escrow account, and his two packages of documents he sent to respondent on April 7, 1999 and December 4, 2001.
(17) Respondent has not responded in any manner to Mr. Szeman’s letter of March 23,2003.
(18) The last contact respondent had with Mr. Szeman was the letter dated July 9, 2002 that respondent provided to Mr. Szeman.
(19) To date, respondent has ignored Mr. Szeman’s request for delivering the funds he is entitled to receive.
(20) To date, respondent has not provided a full accounting to Mr. Szeman of the funds that she is holding on Mr. Szeman’s behalf.
(21) At various times from at least December 31,1997 to the present, respondent was required to maintain funds inviolate on behalf of the following clients or third parties: Robyn Fatebene, E. Frantz Estate, Walter Pomroy, Robert Szeman and Sal Gillen Jr., Trust.
(22) At various times and in various amounts, respondent’s escrow account balance was below the aggregate amount respondent was required to maintain on behalf of her clients or third parties. (See exhibit “A”.)
(23) Respondent issued checks from her escrow account, payable to herself, at a time when the actual balances in her escrow account were below the balances she was required to maintain on behalf of her clients or third parties. (See exhibit “B”.)
(24) Respondent withdrew and expended funds from her escrow account for her personal benefit when the actual balance in the escrow account was below the balance she was required to maintain on behalf of her clients or third parties. (See exhibit “C”.)
(25) On the following dates respondent’s escrow account was assessed fees by her bank for unavailable funds/overdraft charge: July 2,2001, July 26,2001, July 27, 2001, August 1, 2001, August 3, 2001, and August 10, 2001.
(26) OnNovember 19,2001, respondent’s bank closed her escrow account on the basis that it was overdrawn.
(27) Respondent was served with the petition for discipline by regular and certified mail on April 13, 2004. The certified mailing was returned as “unclaimed” and the regular mail was not returned.
(28) On April 29,2004, personal service was attempted by Office of Disciplinary Counsel Investigator Joseph Leipert, and a copy of the petition was left at respondent’s office in her mailbox.
(29) On July 15, 2004, respondent was served with notice of the pre-hearing conference and disciplinary hearing by regular and certified mail. The certified mail was returned as unclaimed. The regular mail was not returned. On July 28,2004, Investigator Leipert left notice of the hearing at respondent’s office by attaching it to the front door.
(30) Respondent did not appear or participate in the disciplinary hearing.

III. CONCLUSIONS OF LAW

By her conduct as set forth above, respondent violated the following Rules of Professional Conduct:

(1) R.P.C. 1.3 — A lawyer shall act with reasonable diligence and promptness in representing a client.
(2) R.P.C. 1.4(a) — A lawyer shall keep a client informed about the status of a matter and promptly comply with reasonable requests for information.
(3) R.P.C. 1.4(b) — A lawyer shall explain a matter to the extent necessary to permit the client to make informed decisions regarding the representation.
(4) R.P.C. 1.15(a) — A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property.
(5) R.P.C. 1.15(b) — Upon receiving funds or other property in which a client or third person has an interest, the lawyer shall promptly notify the client or third person. The lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive, and upon request by the client, to promptly render a full accounting regarding such property.
(6) R.P.C. 1.15(c) — When, in the course of representation, a lawyer is in possession of property which both the lawyer and another person claim interest, the property shall be kept separate by the lawyer until there is an accounting and severance of their interest. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved.
(7) R.P.C. 8.4(b) — It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty.
(8) R.P.C. 8.4(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

IV. DISCUSSION

This matter is before the board on a petition for discipline filed against respondent charging her with violations of the Rules of Professional Conduct arising from allegations of mishandling of client funds. Respondent did not respond to the petition for discipline, and the facts averred in the petition are deemed to be admitted. Respondent did not appear at the disciplinary hearing. The record is clear that respondent received proper notice of the petition for discipline and the date and time of the disciplinary hearing.

Petitioner met its burden of proof by clear and satisfactory evidence that respondent engaged in professional misconduct. Office of Disciplinary Counsel v. Surrick, 561 Pa. 167, 749 A.2d 441 (2000). Respondent failed to respond to the request of her client, Mr. Szeman, to return documents to him, and she failed to provide an accounting of his monies which she was holding in her escrow account. Furthermore, she converted the funds of Mr. Szeman and various other clients to her own use by writing checks from her escrow account to herself for personal expenses. The total amount of money converted was $21,000.

Respondent’s acts of misconduct are extremely serious, as they involve unauthorized dealings with client money. Precedent has established that public discipline is warranted in such cases. In re Anonymous No. 124 D.B. 97, 47 D.&C.4th 338 (1998). Review of the case law reveals that the Supreme Court of Pennsylvania has imposed a wide range of suspensions on attorneys who have converted entrusted funds. The number of conversions, length of time involved and attorney’s attempts to make restitution are pertinent factors. In Office of Disciplinary Counsel v. Olshock, no. 28 D.B. 2002, no. 862 Disciplinary Docket no. 3 (Pa. Oct. 24,2003), the attorney converted over $22,000 from an estate by issuing to himself checks signed in blank by the executor, in addition to the fees which he charged. Prior to the disciplinary investigation, the attorney disclosed to the heirs his withdrawal of monies and made restitution. The Supreme Court suspended him for a period of three years. In the matter of In re Anonymous No. 32 D.B. 89, 13 D.&C.4th 478 (1992), a three-year suspension was imposed on a lawyer who misappropriated approximately $7,500 in fees over a period of three and one-half years.

Under the circumstances presented, including respondent’s failure to appear at the hearing and her two prior informal admonitions, the board is persuaded that a suspension of three years is appropriate.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, Carol J. Weaver, be suspended from the practice of law for a period of three years.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Member Saidis dissented and would recommend disbarment.

ORDER

And now, May 27, 2005, upon consideration of the report and recommendations of the Disciplinary Board dated March 4, 2005, it is hereby ordered that Carol J. Weaver be and she is suspended from the bar of this Commonwealth for a period of four years, and she shall comply with all the provisions of Rule 217, Pa.R.D.E.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.

Mr. Justice Nigro dissents and would suspend respondent for a period of five years.


author: CLARK JR., J,

text:
    Miller v. Twin Arches Ltd.
    C.P. of Dauphin County,
    no. 2002 CV 2654.

      Daniel Pollock, for plaintiff.

      William E. Dengler, for defendant.
    August 5, 2005
   CLARK JR., J,

INTRODUCTION

Before the court for disposition is the summary judgment motion of the defendant, Twin Arches Ltd. (McDonald’s). The plaintiff is alleging that on June 15,2000, at approximately 6 p.m., after exiting a McDonald’s restaurant (located at 2270 Harrisburg Pike, Middletown, Dauphin County, Pennsylvania) holding a food item, he slipped and injured himself in the driveway adjacent to the parking lot. In his complaint, the plaintiff is alleging that McDonald’s was negligent in failing to properly maintain the walkways and parking lot of its business premises free from slip hazards.

This incident occurred while it was raining outside. The plaintiff admits that he did not notice any oily substance on the macadam driveway and parking areas when he entered the McDonald’s. He also states that he noticed the floor inside the restaurant was wet and greasy. At the time the plaintiff exited the restaurant, the driveways and parking lot were wet. The plaintiff exited through the same door he had entered while holding a food item, walked across a walkway, and took two steps onto the wet macadam parking lot when he slipped and fell.

After falling, the plaintiff claimed that he then noticed an oily substance on the wet macadam in the vicinity of the area where he fell. The plaintiff claims that McDonald’s was negligent for allowing the oily substance on its parking lot. The plaintiff also has proposed expert testimony that the slope of the parking lot was too steep of a grade for safe walking, especially in wet conditions.

At the plaintiff’s deposition on September 3,2003, he admitted that he never actually touched the oil, could not tell what color the oil was, nor did he notice any oil stains on the clothes he was wearing that day (although he did not really look at the clothes but threw them away after the fall because the hospital personnel had cut them off his body). The plaintiff did have the sneakers he was wearing that day, but there were no allegations of any oil marks on the sneakers. He also admitted that he did not know if the oily substance on the macadam was an oil puddle or if it was an oily film. He further did not know how deep the oil was or how far on the parking lot the oil extended. Finally, he also did not know how long the oil had been on the macadam.

When asked specifically by the defendant’s counsel, “Do you know what caused your foot to slip?” the plaintiff answered:

“Do I know? What happened was the — yeah, I slipped. How do you word a slip? I don’t know. My heel slipped, yes. I most definitely slipped.” Deposition, September 3, 2003, p. 53 11. 6-12.

Of critical importance, we note that nowhere in the complaint does the plaintiff say that the oil (or any other substance) caused him to slip. With regard to the slope of the parking lot, although the plaintiff’s proposed expert claims the slope is unsafe, nowhere does the plaintiff, in either his complaint or deposition, claim that the slope caused him to fall.

The defendant is moving this court for summary judgment for the reasons listed below:

DEFENDANT’S ISSUES FOR SUMMARY JUDGMENT

The defendant’s motion, and as amplified in the brief in support thereof, alleges the following reasons why it is entitled to summary judgment:

(1) The defendant is not liable for plaintiff’s personal injuries due to the fact that plaintiff cannot prove what caused him to fall.
(2) Defendant is not liable because plaintiff cannot prove defendant had actual or constructive notice of the alleged substance.

DISCUSSION

1. The Defendant Is Not Liable for Plaintiff’s Personal Injuries Due to the Fact That Plaintiff Cannot Prove What Caused Him To Fall

The standard to be utilized in addressing a motion for summary judgment is set forth by Pa.R.C.R 1035.2 which provides:

“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. 1035.2.

We further note that we must view the record in the light most favorable to the non-moving party. DeWeese v. Anchor Hocking, 427 Pa. Super. 47, 50, 628 A.2d 421, 422 (1993). All well-pleaded facts of the non-moving party must be accepted as true, and all reasonable inferences to be drawn from those facts must be construed in favor of the non-moving party. Id.

The defendant is alleging that the plaintiff does not have sufficient evidence to make a prima facie case. Its claim is that there is no direct proof that the oil, the steep slope, or any other alleged negligent condition of the defendant’s property caused the plaintiff’s fall. The defendant claims it is just as likely that the plaintiff fell for a non-negligent reason.

The plaintiff counters that the cause of his fall is a question of fact which should be determined by the trier of fact. He cites to Kelly v. Curwensville Area High School, 141 Pa. Commw. 449, 595 A.2d 787 (1991), as an example of a case where summary judgment was denied because the Commonwealth Court determined that it was a factual issue for the jury to determine the cause of the plaintiff’s fall.

In Kelly, Mr. Kelly was a roofer hired by the high school to do repairs. He was injured when he fell through a skylight into the cafeteria. The trial court granted summary judgment after ruling that Mr. Kelly merely tripped. The Commonwealth Court, however, after reviewing the pleadings, stated that Mr. Kelly alleged that the school negligently placed his ladder too close to the skylight causing him to hit his head and fall. The Commonwealth Court remanded the case for a jury to determine how he fell.

There is a major difference between Kelly and the case at bar. In Kelly, the plaintiff claimed that he knew and could testify and explain exactly why he fell, and therefore a jury must determine if that indeed occurred. In the case at bar, the plaintiff does not know why he fell. When asked by the defendant’s counsel what caused him to fall he merely replied that he slipped.

We agree, however, that there are cases when a plaintiff may not have any direct evidence as to why he fell and a jury may be allowed to make this determination based upon circumstantial evidence. The Pennsylvania Supreme Court has stated with regard to circumstantial evidence:

“We have said many times that the jury may not be permitted to reach its verdict merely on the basis of speculation or conj ecture, but that there must be evidence upon which logically its conclusion may be based.... Clearly this does not mean that the jury may not draw inferences based upon all the evidence and the jurors’ own knowledge and experiences, for that is, of course, the very heart of the jury’s function. It means only that the evidence presented must be such that by reasoning from it, without resort to prejudice or guess, a jury can reach the conclusion sought by plaintiff, and not that that conclusion must be the only one which logically can be [sought].” Smith v. Bell Telephone Co., 397 Pa. 134,138, 153 A.2d 477, 479-80 (1959). (citations omitted) (emphasis in original)

Thus, the proper application of circumstantial evidence depends on the nature of the evidence in the case. For example, there could be a situation of res ipsa loquitur, i.e., a case where other non-negligent causes are sufficiently eliminated from being responsible for the plaintiff’s slip. See Gilbert v. Korvette’s Inc., 457 Pa. 602, 327 A.2d 94 (1974), on res ipsa generally. Or there could be a case where the jury could reasonably infer the cause of the plaintiff’s fall based upon a proper evidentiary foundation. For example, in Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991), the Pennsylvania Supreme Court allowed the jury to infer the cause of the plaintiff’s fall.

In Marks, the plaintiff, Mr. Marks was legally blind and was walking with his friend, Mr. Codell, on the sidewalk in front of the defendants’ office. Mr. Codell was walking in front of the plaintiff when the plaintiff tripped and fell. Mr. Codell did not see what caused the plaintiff to fall (and neither did the plaintiff because of his disability). However, Mr. Codell did see the plaintiff immediately after he fell and did see the plaintiff’s feet in a depression in the sidewalk. The plaintiff then sued the defendants for not properly maintaining the sidewalk in front of their office.

The defendants filed amotion for summary judgment on the grounds that the plaintiff had no direct evidence as to how he fell. However, the Pennsylvania Supreme Court denied the motion. The court stated that “it could logically and reasonably be inferred,” by a jury that the plaintiff fell because of the defective sidewalk. Marks, 527 Pa. at 137, 589 A.2d at 207.

The main differences between Marks and the case at bar is that, although Mr. Marks did not know what made him trip, he knew it was something other than himself. In other words, he tripped on a foreign object. A jury now has to identify what that object was. A jury is further assisted because there was a witness who positively identified that Mr. Marks’ feet were in the sidewalk depression immediately after the accident. They could reasonably infer that the sidewalk caused Mr. Marks to trip.

In the case at bar, we generally agree that it is possible for someone to slip and fall because there is oil on the ground. However, just because it is possible for someone to slip on oil does not prove that the alleged oil is actually what caused the plaintiff to slip. There must be some proof that the oil caused the slip, otherwise it is just conjecture. In this case, the plaintiff himself does not even know why he fell. Further, he has no physical evidence or eyewitness testimony to support any theory of why he fell. A jury may only draw inferences based on evidence. In this case, there is no evidence for any explanation as to why the plaintiff fell, short of speculation, conjecture or mere guess.

In Houston v. Republican Athletic Association, 343 Pa. 218, 22 A.2d 715 (1941), the decedent died by falling down a flight of stairs. There were no witnesses, so no one knew how the decedent tripped. The decedent’s wife sued the owner of the building, the building’s lessee, and others because she proved that the stairs had a large splinter sticking up on the third stair, and upon which the decedent might have likely tripped. The Pennsylvania Supreme Court affirmed a compulsory nonsuit in this case.

Our Supreme Court stated, “the circumstances relied upon are at least equally consistent with theories of the case attributing the accident to a variety of causes, not excluded by the evidence, for none of which any of the appellees could conceivably be held liable,... ‘Where a defendant is liable only for one of two or more equally probable causes and to say which is a mere guess, there can be no recovery.’ ” Id. at 221. (citations and quotations omitted) See also, McNeil v. Ginsberg, 28 D.&C.4th 531 (Montg. Cty. 1996), “a cause of action cannot be premised upon mere speculation or conjecture.” Id. at 537.

We find that the case at bar is much more similar to Houston than to Marks. It is just as likely that the plaintiff slipped on the wetness on the macadam surface caused by a naturally occurring condition, i.e., the rain, or that he merely lost his footing, as it is that he slipped on the alleged oil. (The theory that the plaintiff lost his footing is not implausible considering that he had a hip replacement and was carrying a food item.) Just like in Houston, this is a case where it is impossible to prove by circumstantial evidence (short of employing the prohibited speculation, conjecture or mere guess) what caused the plaintiff to slip.

This is also why the evidentiary doctrine of res ipsa loquitur would not apply to the plaintiff’s case. The res ipsa doctrine states that a jury could infer negligence if an occurrence happens that would not normally occur absent negligence. See Gilbert v. Korvette’s Inc., 457 Pa. 602, 327 A.2d 94 (1974). However, in order to make this inference, the doctrine requires that “other [non-negligent] responsible causes, including conduct of the plaintiff and third persons, [must be] sufficiently eliminated by the evidence.” Gilbert, 457 Pa. at 613, 327 A.2d at 100.

In this case, other non-negligent causes certainly cannot be eliminated. The plaintiff himself absolutely does not know why he fell, and therefore cannot deny that he might have slipped on the rainwater or he might simply have lost his footing. “Proving that an accident happened, or the existence of an opportunity for it to happen is entirely insufficient to establish negligence.” Hillelson v. Renner, 183 Pa. Super. 148, 151, 130 A.2d 212, 214 (1957). (citation omitted)

Thus, when we read all the evidence in the case in the light most favorable to the plaintiff, we must conclude that no legally recognizable claim has been made. Also, the plaintiff’s own deposition testimony shows that he does not know why he slipped. Further, and even more salient to this inquiry, the plaintiff’s complaint contains no averments that his (plaintiff’s) injuries were caused by the aforesaid alleged negligent condition(s) of the defendant’s property.

Indeed, the plaintiff’s complaint states in relevant part:

“(18) Upon taking that second step, Mr. Miller slipped and fell to the driveway.
“(19) Mr. Miller’s fall to the driveway resulted in him breaking his right femur and his right replaced hip.
“(20) While lying on the wet pavement, while waiting for medical attention, Mr. Miller noticed an oily substance on the top of the pavement.” Complaint, June 12, 2002, paragraphs 18, 19 and 20.

Unfortunately for the plaintiff, his complaint utterly fails to even directly assert any factual cause for the plaintiff’s slip, fall and subsequent injuries. A fair reading of the plaintiff’s complaint reveals that at no point does it state that the alleged oil on the macadam surface caused the fall; it merely states that the plaintiff noticed the oil residue after he fell. The same is true as to any other possible cause(s) i.e., the grade of the ramp or the construction of the driveway and parking lot surface, for the plaintiff’s unfortunate mishap.

In short, a jury would be required to engage in speculation, conjecture, or guess in order to determine the cause of the plaintiff’s slip and fall. It is bedrock law in this Commonwealth that a jury is not permitted to engage in any of those methods of determination. “Where the evidence in the case affords no greater basis for a jury’s verdict than a guess or conjecture, the evidence is legally insufficient to support a verdict, and the case must be withdrawn from the jury.” 9 Std. Pa. Practice 2d. §58:11. (citations omitted)

2. Defendant Is Not Liable Because Plaintiff Cannot Prove Defendant Had Actual or Constructive Notice of the Alleged Substance

Since the plaintiff cannot prove that any defects on the defendant’s property caused him to fall, it would be ordinarily irrelevant whether or not the defendant had actual or constructive notice of the alleged defects. However, to fully dispose of the issues at bar, we will now address the issue of notice.

The Restatement of Torts states,

“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it and (c) fails to exercise reasonable care to protect them against the danger.” Restatement (Second) of Torts §343.

With regard to the liability of the owner of a business for negligence, it is well established that “the jury may not consider the owner’s ultimate liability in the absence of other evidence which tends to prove that the owner had actual notice of the condition, or that the condition existed for such a length of time that in the exercise of reasonable care the owner should have known it.” Porro v. Century III Associates, 846 A.2d 1282, 1286 (Pa. Super. 2004).

In Porro, the plaintiff slipped down the stairs while he was at the mall. He claimed that there was a wet soapy spot at the top of the stairs. The Superior Court affirmed summary judgment because the plaintiff did not know how long the soapy substance had been there, or that the mall employees dropped the substance or should have been aware of its existence.

In the case at bar, the plaintiff cannot establish that the defendant had notice of the alleged oily film on the restaurant driveway. Again we turn to the plaintiff’s deposition, wherein he states:

“Q. You don’t know whether it was a puddle or film that covered the entire parking lot?
“A. No.
“Q. Do you know how long the oily substance had been on the macadam?
“A. Why would I know that?
“Q. Do you know?
“A. No.
“Q. Do you know how it came to be there?
“A. No.” Deposition, September 3,2003, p. 53 1.24 to p. 54 1. 13.

It is not surprising that the plaintiff has no idea how the alleged oily substance appeared on the driveway and parking lot area, or how long it had been there. These are the types of questions that a defendant’s counsel would obviously pursue with fervor while conducting a deposition of a plaintiff. However, in the normal progression of a lawsuit involving a slip and fall concerning a business invitee (such as the plaintiff), it is imperative that these questions be answered, and, that the answers must meet the standard set forth in the Restatement, above, in order to withstand a motion for summary judgment.

A defendant cannot be held liable for a condition of which it has no notice. Since McDonald’s cannot be proven to have had notice of the alleged slippery condition, which condition is inferred by the plaintiff to have been caused by the presence of the alleged oily film, it (McDonald’s) cannot be found liable for negligence.

The plaintiff apparently cannot produce direct or circumstantial evidence of either causation or of notice. These are facts which are essential to the successful assertion of a cause of action in the fact scenario set forth in the plaintiff’s complaint, and the lack of same are fatal to his case. We are always reluctant to take a case away from a plaintiff prior to trial. However, there are situations where we cannot allow the matter to proceed; and this case, unfortunately for this plaintiff, is one of those situations. Therefore, for the reasons enumerated above, the defendant’s motion for summary judgment must be granted, and we issued a separate order, of even date herewith, reflecting the same.

Issued at Harrisburg, August 5, 2005.


author: ABRAMSON, J,

text:
    Schnader Harrison Segal & Lewis LLP v. Popowich

      C.P. of Philadelphia County,
    July Term 2004,
    no. 0037.

      David I. Grunfeld, for plaintiff.

      Joel S. Luber and Richard L. Caplan, for defendant.
    October 17, 2005
   ABRAMSON, J,

Before the court is the joint motion for summary judgment filed by plaintiff Schnader Harrison Segal & Lewis LLP and third-party defendant Albert Momjian against defendant Maury Popowich. For the reasons set forth below, said motion is denied.

BACKGROUND

This dispute arises from a divorce action, in which plaintiff Schnader Harrison Segal & Lewis LLP (Schnader), represented defendant Maury Popowich from approximately October 1999 to July 2002 during his divorce proceedings. In or about October or November 1999, Popowich’s wife at that time, Deena Gerson, allegedly used Popowich’s credit card to pay $10,000 for her counsel fees and costs in her divorce action. See Popowich’s counterclaim, ¶17. In addition, on or about February 28, 2001, Popowich paid $50,000 to Gerson’s attorneys pursuant to a written agreement between himself and Gerson. See Popowich’s counterclaim, ¶18. Popowich alleges that he contemporaneously advised his attorney, third-party defendant Albert Momjian, that his agreement to pay $60,000 for Gerson’s benefit was contingent upon Momjian’s assurance that Popowich would maintain the right to seek recapture of the payment in the equitable distribution or settlement of the divorce action. See Popowich’s counterclaim, ¶19.

On March 6, 2002, Popowich and Gerson agreed to a comprehensive settlement before a master to end the divorce action (the settlement). See Popowich’s counterclaim, ¶20. The settlement was not in writing, but rather was read orally on the record by Momjian and Gerson’s attorney. See Popowich’s counterclaim, ¶21. Popowich alleges that, while the settlement was being recited on the record, he interrupted Momjian to verify that Popowich expected Momjian to confirm that each party was to bear his or her own attorneys’ fees and costs incurred in the divorce, including those incurred prior thereto. See Popowich’s counterclaim, ¶22. Popowich contends that Momjian responded by expressly agreeing to accomplish this objective. See Popowich’s counterclaim, ¶23. Popowich alleges that Momj ian breached this oral agreement, and “intentionally recited on the record only that each litigant was to bear his or her own attorneys’ fees and costs without clarifying that this requirement applied to the $60,000 in attorneys’ fees and costs that Popowich had previously parted with to support Gerson’s divorce action.” See Popowich’s counterclaim, ¶24. The final settlement stated that “Each party will pay his or her own counsel fees and expenses.” See settlement, March 6, 2002 at 30:20-21. Thus, Popowich contends that he believed that his concern about the reimbursement of $60,000 had been properly addressed. See deposition of Maury Popowich, January 7,2005 at 35:16-37:21.

Later, when Popowich was transferring his assets to Gerson pursuant to the settlement, he allegedly asked Momjian whether he should offset his transfer by $60,000, to which Momjian responded that he should not. See Popowich’s counterclaim, ¶25. On December 9, 2003, Popowich wrote a letter to Gerson demanding the reimbursement of the $60,000, but Gerson refused to return the $60,000 to Popowich. See Popowich’s counterclaim, ¶¶27, 28. Thereafter, on February 20, 2004, Popowich filed a petition to enforce equitable distribution settlement, enforce arbitration award, and for reimbursement of attorneys’ fees and costs (the petition) in the Court of Common Pleas of Montgomery County, seeking from Gerson reimbursement of the $60,000 pursuant to the settlement language. On October 26, 2004, the Montgomery Court denied Popowich’s petition, stating that “the phrase ‘Each party will pay his or her counsel fees and expenses,’ clearly and unambiguously meant as to wife, any counsel fees and costs incurred by her exclusive of the $50,000 paid to her pursuant to the [written agreement between Popowich and Gerson regarding the payment of Gerson’s counsel fees].”

In the meantime, in July 2004, Schnader brought the present suit against Popowich for collection of unpaid legal fees of over $63,000 arising from its representation of Popowich in the divorce action. See Schnader’s complaint. On October 21, 2004, Popowich filed a counterclaim against Schnader for breach of contract alleging that Momjian breached the oral agreement between himself and Popowich regarding the recapture of the $60,000. See Popowich’s counterclaim, ¶24. Popowich’s counterclaim also alleges that Schnader violated the fiduciary duty that Schnader owed to Popowich inherent in its agreement to provide Popowich with competent legal services. See Popowich’s counterclaim, ¶35.

On November 29, 2004, Popowich filed a third-party complaint against Momjian alleging legal malpractice. Specifically, Popowich alleges that Momjian breached his professional duty owed to Popowich by failing to clarify, during oral recitation of the terms of the settlement, that Gerson would be required to repay the $60,000 that Popowich had advanced to her. See Popowich’s third-party complaint, ¶21. Further, Popowich alleges that Momjian did not fully explain to Popowich that the provision regarding responsibility for attorneys’ fees and costs might be construed to only have a prospective effect. See Popowich’s third-party complaint, ¶¶14, 22.

Schnader and Momjian (collectively, movants) now move for summary judgment on Popowich’s counterclaim and third-party complaint, respectively.

SUMMARY JUDGMENT STANDARD

Pursuant to Pennsylvania Rule of Civil Procedure 1035.2, a 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. 1035.2.

Summary judgment is granted when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate that there exists no genuine issue of material fact. Merriweather v. Philadelphia Newspapers Inc., 453 Pa. Super. 464, 471, 684 A.2d 137, 140 (1996). Summary judgment may be entered only in those cases where the record clearly demonstrates that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Dean v. PennDOT, 561 Pa. 503, 507, 751 A.2d 1130, 1132 (2000). The record must be viewed in the light most favorable to the opposing party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Id.

DISCUSSION

Movants seek summary judgment on two grounds. First, they contend that Popowich’s claims are barred by the statute of limitations. Second, they contend Popowich’s claims arising from dissatisfaction with the settlement are barred by the doctrines set forth in the relevant case law. The court will address each in turn.

I. Statute of Limitations

Movants argue that the statute of limitations should run from the date that the settlement was recited on the record, March 6,2002, on the basis that Popowich knew at that time that the settlement did not include a specific reference to the recapture of the $60,000. See movants’ brief in support of its motion for summary judgment at p. 4. Therefore, they contend that Popowich has acted too late in asserting his counterclaim and third-party complaint. Conversely, Popowich argues that the statute of limitations should begin when he learned of his injury. He argues that he learned of Momjian’s negligence only upon receipt of the adverse decision on Popowich’s petition by the Montgomery court’s order of October 26, 2004. See Popowich’s brief in opposition to motion for summary judgment at p. 7. Therefore, he contends that his third-party complaint is not time barred.

The question of whether the statute of limitations has run on a claim is ordinarily a question of law for the trial judge; however, where the issue involves a factual determination, the question is for the finder of fact. Fiorentino v. Rapoport, 693 A.2d 208, 219 (Pa. Super. 1997), citing Hayward v. Medical Center of Beaver County, 530 Pa. 320, 325, 608 A.2d 1040, 1043 (1992). “Specifically, the point at which the complaining party should reasonably be aware that he has suffered an injury is generally an issue of fact to be determined by the jury; only where the facts are so clear that reasonable minds cannot differ may the commencement of the limitations period be determined as a matter of law.” Id.

The court finds that there are issues of material fact regarding the determination of the applicability of the statute of limitations in this matter. The crux of the issue is determining when Popowich was aware, or should have reasonably been aware, that he was injured by Momjian. Reasonable minds could differ concerning the point in time that Popowich learned, or should have learned, of his injury. The court cannot determine, as a matter of law, that Popowich knew or should have known, at the time the settlement was recited on the record, that the phrase “Each party will pay his or her own counsel fees and expenses,” only acted prospectively from the date of the settlement. Reasonable minds could differ on whether that phrase meant prospectively, retroactively, or both prospectively and retroactively. Therefore, summary judgment is not appropriate.

II. Muhammad’s Impact on Barring a Claim Arising From Dissatisfaction With the Settlement

Movants rely on the case of Muhammad v. Strassburger, 526 Pa. 541, 587 A.2d 1346 (1991), in support of their claim that Popowich should not be able to bring suit based on his dissatisfaction with the settlement. In Muhammad, plaintiffs in a medical malpractice action agreed to accept a monetary settlement from defendants in exchange for dismissing their lawsuit. Id. at 547, 587 A.2d at 1349. After they agreed to the settlement, plaintiffs changed their minds and decided that the settlement amount was not enough money. Id. Plaintiffs sued their attorneys for legal malpractice because plaintiffs were dissatisfied with the monetary settlement. The Pennsylvania Supreme Court stated that a client cannot sue his attorney for legal malpractice when the client is simply dissatisfied with the terms of the settlement, unless the client can show that he was fraudulently induced to settle the original action. Id. at 546,587 A.2d at 1348. Movants in the present case argue that, since there is no allegation by Popowich of any fraudulent inducement, his claims should be disallowed.

However, six years later, in McMahon v. Shea, 547 Pa. 124, 688 A.2d 1179 (1997), the Pennsylvania Supreme Court expressly limited Muhammad to the facts of that case. Furthermore, Muhammad is distinguishable from the present case. In the case at bar, Popowich is suing because he is dissatisfied with Momjian’s representation by not following his specific directive. He does not claim dissatisfaction with the settlement on any other terms. Instead, Popowich alleges that he relied on Momjian’s representations that the phrase in the settlement that “each party will pay his or her own counsel fees” addressed his concern of the reimbursement of the $60,000 from Gerson. Unlike the plaintiffs in Muhammad, Popowich did not simply change his mind about the monetary amount of the settlement. Instead, he is claiming that his attorney breached a contractual duty or a duty of care in crafting the settlement agreement itself. See Popowich’s brief in opposition to motion for summary judgment at p. 9. For these reasons, movants’ reliance on Muhammad is misplaced, and their motion for summary judgment is denied.

CONCLUSION

For all the foregoing reasons, Schnader and Momjian’s motion for summary judgment is denied. The court will enter a contemporaneous order consistent with this opinion.

ORDER

And now, October 17, 2005, upon consideration of plaintiff Schnader, Harrison, Segal & Lewis LLP and third-party defendant Albert Momjian’s motion for summary judgment, and response thereto, and in accordance with the court’s contemporaneously filed opinion, it is hereby ordered and decreed that said motion is denied.

      . The Montgomery court did not address in its order the $10,000 that Gerson allegedly charged on Popowich’s credit card for her counsel fees.

      . Popowich appealed the denial of his petition. On August 23, 2005, the Superior Court of Pennsylvania affirmed the October 26, 2004 order of the Montgomery court on the grounds that “Popowich waived any right he previously retained to claim a $60,000 credit against the estate by entering into the settlement agreement and subsequent divorce decree without specifically raising this issue.” The Superior Court further found that the phrase “will pay his or her own fees” acted prospectively from the settlement agreement. See Gerson v. Popowich, no. 3226 EDA 2004.

      . It is noted that Popowich filed his counterclaim on October 21, 2004. The Court of Common Pleas of Montgomery County issued its order on October 26, 2004. Therefore, Popowich filed his counterclaim against Schnader, as opposed to his third-party complaint against Momjian, before he learned of the Montgomery court’s decision on his petition. Thus, Popowich arguably knew of his cause of action against Schnader before the Montgomery court rendered its decision.

      . Specifically, the court stated, “It appears that confusion has arisen in this area of the law due to the unwarranted expansion of Muhammad ... In summary, we find that the analysis of Muhammad is limited to the facts of that case.” McMahon, 547 Pa. at 131, 688 A.2d at 1182.


author: MOSCHETTA, J,

text:
    Mazur v. Washington County Redevelopment Authority

      C.P. of Washington County,
    no. 2005-2455.

      Peter M. Suwak, for plaintiffs.

      Falco A. Muscante, for defendant Trinity Area School District.

      James H. McCune, for defendants Washington County Redevelopment Authority and William McGowen.

      Thomas A. Lonich, for defendant South Strabane Township.

      Mary J. Drewitz, for defendant Washington County.
    September 20, 2005
   MOSCHETTA, J,

This matter is before the court on defendants’, Washington County Redevelopment Authority, William R. McGowen, Trinity Area School District, Washington County and South Strabane Township, joint motion for judgment on the pleadings and plaintiffs’, Edward Mazur, Jeffrey Bull, and Citizens Against Tax Incremental Financing, cross motion for judgment on the pleadings.

This matter arises out of meetings held by a Tax Incremental Financing (TIF) Committee. The TIF Committee consists of representatives from Washington County, Trinity School District, South Strabane Township and the Washington County Redevelopment Authority. On May 9, 2005, plaintiffs filed a complaint alleging that defendants violated provisions of the Sunshine Act, 65 Pa.C.S. §701 et seq., by holding TIF Committee meetings that were not open to the public.

In reviewing a motion for judgment on the pleadings, the court may consider only the pleadings, admissions and any documents properly attached to the pleadings presented by the party against whom the motion is filed. School Security Services Inc. v. Duquesne City School District, 851 A.2d 1007, 1011 n.2 (Pa. Commw. 2004). Judgment on the pleadings may only be granted where the moving party’s right to succeed is certain and the case is so free from doubt that trial would be a fruitless exercise. School Security Services Inc., 851 A.2d at 1011.

In their complaint, plaintiffs allege that the TIF Committee’s purpose is to gather information concerning a proposed TIF and to presumably report to their governing bodies the information shared during the meetings to allow the governing bodies to cast a vote concerning the approval of the proposed TIF. The complaint continues by stating that the TIF Committee is an “agency.” The complaint also states that the TIF Committee itself consists of committees of individual governing bodies that are authorized to render advice to the main board.

Plaintiffs’ complaint also goes on to contend that TIF Committee meetings were held on or about April 8,2005 and April 29, 2005 and that these meetings violated the Sunshine Act, 65 Pa.C.S. §701 et seq., because the meetings were not open meetings with information available to the public. The complaint did not specifically allege that the TIF Committee took votes, adopted policies or took any official actions during the closed meetings. Plaintiffs requested relief pursuant to 65 Pa.C.S. §713, asking the court to find actions taken at the TIF Committee meetings invalid.

The Sunshine Act defines agency as: “The body, and all committees thereof authorized by the body to take official action or render advice on matters of agency business, of all the following:... any state, municipal, township or school authority, school board ... or pursuant to a statute which declares in substance that the organization performs or has for its purpose the performance of an essential governmental function____” 65 Pa.C.S. §703.

Defendants had representatives serving on the TIF Committee, however, this TIF Committee is not a committee consisting solely of representatives from one municipality, township or school authority. The TIF Committee itself is not a political subdivision of the Commonwealth. Instead, it is a committee made up of representatives from Washington County, South Strabane Township, and Trinity School District, which are three separate taxing bodies, along with representatives from the redevelopment authority. Also, the TIF Committee itself is not a named defendant in this action. If the TIF Committee was an agency under the definition of the Sunshine Act, it would also need to be a named defendant in the complaint.

However, even if the TIF Committee is an agency under the Sunshine Act, the actions of the TIF Committee did not violate the Sunshine Act. The closed meetings held by the committee did not result in “official action” by the TIF Committee or any of the defendants. Official action, according to the Sunshine Act, consists of (1) recommendations made by an agency pursuant to statute, ordinance, or executive order; (2) the establishment of policy by an agency; (3) the decisions on agency business made by agency; (4) the vote taken by any agency on any motion, proposal, resolution, rule, regulation, ordinance, report or order. 65 Pa.C.S. §703.

The TIF Committee did not establish policy, make decisions on agency business, or take votes. The purpose of the TIF Committee was to discuss the TIF proposal and convey the information discussed regarding Tax Incremental Financing to the defendants. The discussions of the TIF Committee did not amount to deliberations or recommendations by an agency. The Sunshine Act defines deliberation as being the discussion of agency business for the purpose of making a decision. 65 Pa.C.S. §703. In defendant Trinity’s response and new matter to plaintiffs’ complaint, it stated that the TIF Committee has no decision-making authority. Plaintiffs did not specifically deny this allegation in their reply to new matter.

The Sunshine Act does not foreclose agency representatives from informally debating issues with others. Conners v. West Greene School District, 131 Pa. Commw. 95, 104, 569 A.2d 978, 983 (1990). The Sunshine Act allows agency representatives to inquire, question and learn about issues outside of public meetings. Conners, 131 Pa. Commw. at 135, 569 A.2d at 983. The Sunshine Act requires actions, deliberations, votes and decision-making to occur at public meetings. The actions of the TIF Committee, in discussing various TIF proposals that could be presented to the representatives’ respective governing bodies, does not violate the Sunshine Act. 65 Pa.C.S. §703.

However, even if the closed meetings of the TIF Committee violated the provisions of the Sunshine Act, the violation could be cured by a subsequent public meeting on the issue. In Lawrence County v. Brenner, 135 Pa. Commw. 619, 582 A.2d 79 (1990), two separate actions were brought against the county to nullify decisions made by county commissioners during an executive session. The Commonwealth Court held that the decisions made by the county commissioners at the executive session came within the purview of the Sunshine Act. Brenner, 135 Pa. Commw. at 629, 582 A.2d at 84. The court went on to state that, short of fraud, decisions reached at a closed meeting which violate the Sunshine Act could be cured by subsequent ratification at a public meeting. Brenner, 135 Pa. Commw. at 629, 582 A.2d at 84. The court in Brenner also found that, by adopting the resolution the county commissioners discussed in the executive session, at a regularly scheduled public meeting, after allowing public comment, the purported Sunshine Act violation was cured. Id.

Likewise, in the present action, any violation of the Sunshine Act that may have occurred as a result of the closed meetings of the TIF Committee were subsequently cured. Prior to any of the defendants voting on the TIF proposals, a public meeting on the matter took place on July 11, 2005. This July 11, 2005 meeting was open to the public and allowed public discussion and comment on potential TIF proposals. This public meeting and the subsequent public votes on the proposals by the taxing bodies cured any Sunshine Act violations that may have occurred on this issue.

After reviewing the record and considering the pleadings, admissions and documents attached to the pleadings, this court believes that the defendants’ right to succeed is certain. Therefore, the defendants’ motion for judgment on the pleadings is hereby granted. Plaintiff’s cross motion for judgment on the pleadings is hereby denied.

ORDER

And now, September 20, 2005, after reviewing the record and based upon the briefs filed in the above case, defendants’ motion for judgment on the pleadings is hereby granted. Plaintiff’s cross motion for judgment on the pleadings is hereby denied.


author: DiFRANCESCO, J.,

text:
    Stopko v. PennDOT

      C.P. of Cambria County,
    no. 1820-2005.

      Michael J. Czonka, for appellant.

      Denise Farkas, for appellee.
    August 15, 2005
   DiFRANCESCO, J.,

This matter is before the court as a result of the appellant’s filing of an appeal from denial of restoration of operating privileges/denial of restoration of driver’s license. A hearing on this matter was held on July 14, 2005, at which time arguments of counsel were heard. Both parties have subsequently filed briefs, which the court has thoroughly reviewed.

DISCUSSION

The appellant, Joseph Brian Stopko, is a resident of Johnstown, Cambria County, Pennsylvania. On December 11,2003, the appellant was convicted for a violation of 75 Pa.C.S. §3731 (Driving under the influence of alcohol— DUI). As a result of the conviction, the appellant’s driving privileges were suspended by the appellee (PennDOT) beginning on December 11, 2003 through March 19, 2005. The said conviction was the appellant’s second conviction for DUI with the first being on February 17,1996.

In a “restoration letter” dated January 6, 2005, PennDOT notified the appellant that his driving privileges were eligible for restoration on March 19, 2005, upon PennDOT’s receipt of a restoration fee and a submission of “proof of insurance” for all vehicles owned by the appellant. On March 21, 2005, the appellant submitted the aforementioned fee and information through an authorized agent/notary service of Penn-DOT. Shortly thereafter, the appellant received a second “restoration requirement letter” dated March 21, 2005, stating in part that “In order to have your driving privileges restored, you must apply for an ignition interlock license.”

On April 18, 2005, the appellant filed the within appeal of his license suspension contending that PennDOT’s requirement that he apply for an interlock ignition license in order for his driving privileges to be restored is invalid and unlawful. Specifically, the appellant notes that the statute authorizing PennDOT to require ignition interlock licenses of individuals who accumulate a second DUI has been revoked (42 Pa.C.S. §7003). Thus, the appellant asserts that his driving privileges be restored, because of his compliance with the original January 6, 2005 requirement letter from PennDOT.

In support of his contention, the appellant has referred the court to the Commonwealth Court’s decision in Hess v. PennDOT, 821 A.2d 663 (Pa. Commw. 2003), which held in part that a breakdown in the administrative process of PennDOT justified an appeal nunc pro tunc by a motorist who was denied restoration of his driving privileges as a result of his failure to install the ignition interlock systems.

PennDOT has countered with the Commonwealth Court’s decision in Freedman v. PennDOT, 842 A.2d 494 (Pa. Commw. 2004), which reversed a trial court’s decision to allow a licensee’s untimely appeal of the suspension of motor vehicle license pursuant to the ignition interlock systems.

The court is quite familiar with both the decisions in Hess and Freedman. To begin, Judge Leadbetter’s decision in Freedman sets forth the procedure to challenge PennDOT’s requirement of an ignition interlock to a motor vehicle:

“The proper procedure to challenge the department’s imposition of the ignition interlock device requirement is to file an appeal from the notice of suspension. Schneider at 366 n.7; Turner v. PennDOT, 805 A.2d 671, 674 (Pa. Commw. 2002); Hess v. PennDOT, 821 A.2d 663, 665 (Pa. Commw. 2003). It is well settled that a licensee must file his appeal within 30 days from the date the department mails suchnotice. 75 Pa.C.S. §1550; 42 Pa.C.S. §§5571(b), 5572; PennDOT v. Stollsteimer, 156 Pa. Commw. 64, 626 A.2d 1255, 1256 n.3 (1993). The department correctly notes that an untimely appeal deprives common pleas of subject matter jurisdiction, Hudson v. PennDOT, 830 A.2d 594, 598 (Pa. Commw. 2003), an issue which may be raised at any time. Id. at 598 n.7.” Freedman v. PennDOT, 842 A.2d 494, 498 (Pa. Commw. 2004).

In Freedman, a motorist pled guilty to his second DUI offense. Shortly thereafter in April 2002, PennDOT notified the motorist that his operating privilege would be suspended for one year and that, prior to the restoration of his operating privilege, he would need to have an ignition interlock device installed on his vehicles. The motorist did not appeal from this suspension notice within the statutory period. In January 2003, PennDOT sent the motorist a “restoration requirements letter” outlining the steps needed to restore his operating privileges, including that he equip his vehicles with an ignition interlock device. On February 6, 2003, the motorist filed an appeal challenging PennDOT’s authority to require the ignition interlock devices on his vehicles. The trial court held in favor of the motorist, holding that it could consider the appeal nunc pro tunc, and that PennDOT lacked the authority to require installation of an ignition interlock device absent a court order. PennDOT appealed.

The Commonwealth Court vacated the trial court’s decision noting that the lower court’s rationale was in contradiction to the Supreme Court’s holding in Commonwealth v. Mockaitis, 575 Pa. 5,834 A.2d 488 (2003), which held in part that “ ‘whether and when repeat DUI offenders are entitled to conditional restoration of their operating privileges,’ is not a function of the court, but rather the unique authority and responsibility of [Penn-DOT].” Freedman, 842 A.2d at 498, quoting Mockaitis, 575 Pa. 5, 26, 834 A.2d 488, 500. Based on Mockaitis, the Commonwealth Court vacated the lower court’s decision, and quashed the motorist’s appeal.

In Hess v. PennDOT, 821 A.2d 663 (Pa. Commw. 2003) (a decision noted in Freedman), the court held that a breakdown in the administrative process justified a nunc pro tunc appeal by a motorist. In Hess, a motorist was notified by letter mailed February 28, 2001, that PennDOT was suspending his driving privileges for one year effective April 4,2001, as a result of his conviction for DUI on January 30,2001. The notice stated that the motorist was required to have all vehicles owned by him equipped with an approved ignition interlock system before his driving privileges could be restored. If the motorist failed to comply with this requirement, his driving privileges would be suspended for an additional year. PennDOT promised to send “more information regarding this requirement approximately 30 days before [licensee’s] eligibility date.” Hess, 821 A.2d at 664.

On April 4, 2002, the motorist filed a nunc pro tunc appeal with the trial court challenging PennDOT’s decision not to restore his driving privileges at the end of the suspension period absent the installation of ignition interlock systems. The trial court held a hearing on the matter, at which PennDOT filed a motion to quash the appeal as untimely. The trial court denied the motion to quash and sustained the motorist’s appeal pursuant to the Commonwealth Court’s decision in Schneider v. PennDOT, 790 A.2d 363 (Pa. Commw. 2002), which held that PennDOT lacked authority to impose interlock device requirements where the sentencing court failed to do so. Id. at 664-65.

On appeal, the Commonwealth Court affirmed the trial court’s decision to sustain the motorist’s appeal. In affirming, the court noted that the motorist sought a nunc pro tunc appeal, and such appeal is “appropriate where the licensee shows that the delay in filing the appeal was caused by fraud or a breakdown in the administrative process.” Id. at 665, citing Anderson v. PennDOT, 744 A.2d 825 (Pa. Commw. 2000).

In finding a “breakdown in the administrative process,” the court provided the following analysis:

“On the first page of DOT’S notice of suspension, DOT informs licensee of the ignition interlock system requirement and sets forth the penalty for failure to comply with the requirement. The notice then states, ‘You will receive more information regarding this requirement approximately 3 0 days before your eligibility date. ’ (R.R. at 18a.) The final section of the notice indicates that licensee has the right to appeal ‘this action’ within 30 days. (R.R. at 21a.) The notice then reminds licensee ‘this is an OFFICIAL NOTICE OF SUSPENSION.’ (R.R. at 21a.) Because the notice promises more information about the ignition interlock system requirement, the notice suggests that the suspension and the ignition interlock system requirement are different actions. Thus, it is not clear whether the right to appeal ‘this action’ in 30 days includes the right to appeal the imposition of the ignition interlock system requirement. For that reason, we conclude that there has been a breakdown in the administrative process that justifies a nunc pro tunc appeal in this case.” Id. (footnotes omitted)

The court also noted in footnote 2 that “The notice provides no other information about the requirement; the notice even lacks a citation to the statute.” Id. (emphasis in original) Further, in footnote 3, the court noted, “Licensee is not appealing the suspension here.” Id.

In the present matter, this court is guided by the Commonwealth Court’s holding in Hess, and finds that the appellant’s nunc pro tunc appeal is permitted as a result of a breakdown in the administrative process of PennDOT in issuing a series of contradictory notices to the appellant. Specifically, the court notes that in the notice of suspension letter dated December 11, 2003, the appellant is informed by PennDOT of the ignition interlock requirements; however, in a “restoration requirements letter” dated January 6, 2005, PennDOT sets forth the requirements for the appellant’s driving privileges to be restored. The said letter required the appellant to pay a $25 restoration fee and provide proof of insurance of all vehicles owned. The letter concluded by stating: “This letter identified [sic] the requirements necessary to restore your driving privilege and we are looking forward to working with you to do this.” See page 2 of exhibit A of appellant’s supporting brief.

The court notes with emphasis that nowhere in PennDOT’s January 6, 2005 letter was there a requirement that the appellant was required to obtain an ignition interlock license despite the letter’s concluding paragraph that stated these were the requirements necessary to restore his driving privileges.

As such, the court is troubled that, upon the appellant’s compliance with PennDOT’s January 6,2005 letter, that the said agency sent an additional letter requiring the appellant obtain an ignition interlock license as an additional requirement to restore his driving privileges. This additional letter contradicts the January 6,2005 letter of PennDOT, which specifically provided that it contained the requirements for the appellant to obtain his driving privileges. Accordingly, the court finds that these contradictory letters constitute an administrative breakdown on the part of PennDOT which warrants a nunc pro tunc appeal by the appellant which is sustained upon his compliance with the original January 6, 2005 letter from PennDOT.

PennDOTs reliance on Freedman in the present matter is misplaced. The motorist in Freedman based his appeal on PennDOT’s authority to require that he install ignition interlock devices on his vehicle whereas the appellant in the present matter based his appeal on the administrative breakdown on the part of PennDOT which justifies a nunc pro tunc appeal per the Commonwealth Court’s holding in Hess (again, this court notes úraXHess was cited by the Commonwealth in Freedman).

In ruling in favor of the appellant, this court is mindful of the Commonwealth Court’s more recent decision (referenced by PennDOT in their brief) of Dwyer v. PennDOT, 849 A.2d 1274 (Pa. Commw. 2004) which vacated a trial court’s decision affirming a motorist’s appeal based on Hess. The court in Dwyer essentially reaffirmed Hess by differentiating the factual scenario from its case from Hess:

“Moreover, the trial court’s reliance on Hess to grant a ‘now for then’ appeal was misplaced. In Hess the licensee sought a ‘now for then’ appeal. 821 A.2d at 665. We observed such an appeal is permitted only ‘where the licensee shows that the delay in filing the appeal was caused by fraud or a breakdown in the administrative process.’ Id. We concluded the requested relief could be allowed because the notice of suspension issued by PennDOT was unclear as to when he was required to appeal the interlock requirement.
“Here, however, Dwyer neither claimed nor offered to prove that any PennDOT communication confused her about the time to appeal the interlock requirement. In fact, Dwyer never requested a ‘now for then’ appeal, and she offered no evidence at the hearing before the trial court. Rather, Dwyer’s argument was that PennDOT lacked the independent authority to impose the ignition interlock requirement. R.R. at 5a-6a (petition), 9a-18a (transcript of argument before trial court). Not surprisingly, the trial court did not find Dwyer was confused by the notice of suspension or by the subsequent restoration requirements letter. Accordingly, the trial court’s reliance on Hess was misplaced, because here the issue was not properly raised, no proof of confusion was offered, and no finding of confusion was made.” Dwyer, 849 A.2d at 1276.

The decision in Dwyer supports this court’s decision to find in favor of the appellant, as the appellant is seeking an appeal based on the breakdown of the administrative process of PennDOT, that being the series of contradictory letters. Unlike the motorists in Freedman and Dwyer, the appellant is not challenging PennDOT’s authority to require the ignition interlock license.

In summary, the court finds that the appellant’s nunc pro tunc appeal is warranted based on the breakdown of the administrative process by PennDOT, specifically that being its requirement that the appellant obtain an ignition interlock license after notifying him in a prior letter of the requirements needed to regain his driving privileges without mention of the said interlock ignition requirements. As such, the appellant has complied with the requirements to regain his driving privileges per the first letter issued by PennDOT, and accordingly, they should be restored. Furthermore, the court notes that it is also troubled and mindful of the precarious situation that PennDOT places motorists with local police departments by requiring an ignition interlock license when under this factual scenario there is no longer a statutory requirement for such a device as the interlock section of the Act existing at the time of the offense has been declared unconstitutional.

Accordingly, the following order is hereby entered.

ORDER

And now, August 15, 2005, the court finds that the appellant has complied with the requirements to restore his driving privileges, and therefore, his appeal is sustained.