author: WILLIAMSON, J,

text:
    Burke v. Schaefer

      April 25, 2013—

      George W. Westervelt, Jr., for plaintiff.

      Carol Schaefer, for defendant.
   WILLIAMSON, J,

I.FINDINGS OF FACT

1. Plaintiff is Jack Burke, owner of real property at 1845 West Main Street, Stroudsburg, Pennsylvania (“premises”).

2. Defendant is Carol Schaefer, who was a tenant at the premises.

3. There was a lease agreement (“lease”) dated October 1, 2006, between Jack Burke as landlord, and Carol Schaefer and Melanie Marshall as tenants.

4. Carol Schaefer and Melanie Marshall signed a personal guaranty, agreeing to be jointly and severally liable under the lease.

5. Ms. Marshall was removed from the lease after the first year.

6. No writing was done to confirm Ms. Marshall’s removal from the lease and obligations thereunder.

7. The initial term of the lease was for one (1) year starting October 1, 2006 at a rental amount of $4,500 per month.

8. There was a two (2) year renewal term thereafter at $5,500 per month.

9. A security deposit of $4,500 was paid at the start of the lease by the defendant to the plaintiff.

10. The lease called for interest of 10% per annum on any unpaid balance, and a late payment fee of $50 on any rental payments not paid within five (5) days of the due date.

11. The lease called for an attorney’s commission of 10% of the unpaid rent and costs if the defendant was in default of the lease.

12. The lease contained an option to renew that required a ninety (90) day written notice from defendant to plaintiff prior to expiration of the initial term.

13. Defendant continued to lease the premises until September 30,2010, when defendant vacated the premises.

14. Defendant paid $4,500 per month rent in the first year of the lease, from October 1, 2006 — September 30, 2007.

15. The parties entered into an oral agreement to reduce the rent to $3,500 per month starting October 1, 2007 due to the condition of the premises and the economy.

16. Defendant made the 2006, 2007, 2008 and 2009 payments due under her agreement with the plaintiff.

17. Defendant did not make the payments due for January 1, 2010 to September 30, 2010.

18. The parties could not reach an agreement with regard to extending terms beyond September 30, 2010.

19. Defendant vacated the premises on or about September 30, 2010.

20. James Reid testified about conversations he had with plaintiff and defendant while he attempted to negotiate with plaintiff to lease the premises after the defendant.

21. Mr. Reid said the plaintiff told him the rent plaintiff would charge him was the same that plaintiff originally was charging the defendant, but that he had lowered the defendant’s rent because he did not want to look for a new tenant while the market was slow.

22. Mr. Reid stated that the defendant also told him the plaintiff had lowered her rent because of the economy and the building condition, and that her actual rent was lower than plaintiff had proposed to Mr. Reid.

23. Mr. Reid believed that plaintiff had suggested he pay rent of $3,500, but he was uncertain of the amount.

24. Neither Plaintiff nor defendant presented copies of cancelled checks.

25. Plaintiff presented tax returns for his corporation, Jack Burke, Inc., in support of the amount he alleged was due.

II. DISCUSSION

Plaintiff presented the lease dated October 1, 2006, a copy of which lacked a signature page. However, both parties acknowledged the lease, that they signed it, and that there was a signed personal guarantee, which was attached. The lease was clear as to the rent to be charged in the first year, starting October 1, 2006, of $4,500 per month. The lease required written notice to renew thereafter. There was a discrepancy in the lease as to whether or not the rent during the renewal periods was to be $5,500 or $6,000. There was no written renewal (option) between the parties as required by the terms of the lease.

The defendant states she met with the plaintiff after the first year of the lease to discuss renewal. She advised the plaintiff that the condition of the building and the economy did not warrant the rent of $5,500 per month (or even the prior year rent of $4,500 per month). The defendant testified she requested a reduction in rent in order for her to continue to lease the premises. She stated the plaintiff agreed, and when she requested they put it in writing, the plaintiff said there was no need to do so, saying “you got it.” In the third year of the lease, the defendant stated the plaintiff agreed again to lease her the premises for $3,500 per month. The defendant said plaintiff did this due to the economy. The plaintiff specifically mentioned to defendant that there were less workers at his employer, Raymour and Flanigan, as an example of the soft economy. There was no testimony as to whether there was a conversation about renewal terms for the fourth (and last) year of the lease. However, the defendant did stay in the premises until the end of year four, on September 30,2010, and there was no evidence that a different rent or terms were agreed to in year four, compared to years two and three.

We find a modification of the lease was made after the first year of the lease. There can be an oral supplemental agreement to a written agreement. Sipowicz v. Olivieri, 174 Pa. Super. 549, 102 A.2d 175 (1954). The burden of proof rests with the party seeking to establish the change in terms. Id. [citing Sferra v. Urling, 324 Pa. 344, 188 A. 185 (1936)]. However, paying a less sum than is owing will not itself defeat a claim for the balance due, unless there is an express or implied agreement to that effect. West Philadelphia Buick Co. v. Shuster, 120 Pa. Super. 329, 183 A. 75 (1936).

We find defendant’s testimony concerning the oral agreement to reduce the rent was credible and convincing. Defendant requested the change or she would have to move out at the end of the first year of the lease, as permitted by the lease, with no penalty. She paid the full amount of the rent called for in the first year of the lease, which was $4,500 per month. The defendant verbally notified plaintiff she would not stay unless the rent was lowered. Furthermore, the defendant did not send the written notice required to exercise the automatic renewal clause. The defendant ultimately paid $3,500 per month for the remainder of the time she occupied the premises. She could have left voluntarily with no penalty if an agreement could not have been reached. Therefore, it is plausible she only stayed upon agreement to a lower amount of rent.

Furthermore, a renewal of the lease, and lease terms, only occurs if the defendant gives written notice to the plaintiff ninety (90) days before expiration of the first year of the lease. There was no testimony of a written renewal, so, the written lease itself, and the terms therein were never renewed, and only a subsequent oral agreement remained in place. The defendant also requested the plaintiff put the reduced rent agreement in writing, but plaintiff assured the defendant it was not necessary. Since no written notice of the renewal option was given to the plaintiff, it would have been in the plaintiff’s best interest to execute a new written agreement, for the terms plaintiff stated he believed were continued after the first year of the lease. However, this was not done.

Although neither party presented cancelled checks, Plaintiff claims he was accepting payment of $3,500 per month, instead of $5,500 or $6,000 per month, as partial payments. Plaintiff continued to do this until she vacated the premises. However, the plaintiff sent no written notice to the defendant for the three years she “underpaid” the rent by $2,000 — $2,500 per month. The plaintiff testified that he told the defendant each month she was behind on the rent.

We note that plaintiff also testified he had been living out of state for a period of time. It was unclear if any of this time coincided with defendant’s tenancy at the premises, or during any of the visits by the plaintiff’s sons to “collect rent” from the defendant. Testimony also showed the plaintiff was present in Pennsylvania for a substantial period of this matter, as he worked in Stroudsburg at Raymour and Flanigan. In any event, we are not convinced that plaintiff was entirely certain of his business transactions with the defendant.

For example, plaintiff produced his 2008, 2009 and 2010 tax returns as proof that the defendant did not pay either $5,500 per month or $6,000 per month rent as referenced in the original lease agreement. Interestingly, the tax returns, which allegedly only showed income from the premises leased to the defendant, shows $42,000 for 2008 and $37,500 for 2009. This correlates to the rent paid by the defendant of $3,500 per month in 2008 and 2009, less $4,500 for some reason in 2009. No testimony was provided as to the discrepancy in the 2009 tax return showing $4,500 less in income to the plaintiff. There was no testimony that defendant either failed to pay that amount in 2009 or if or when the defendant was short on payments. The number does correspond with the security deposit amount paid by the defendant, but nothing else. Furthermore, plaintiff’s tax return shows no income received for 2010, but no other written documentation. Plaintiff had no ledger, or other means of recording payments either received, or not received. There were no copies of checks and no rent payment receipts. There were also no written notices.

We also note that plaintiff’s tax returns where he claimed rent from the defendant was a corporate tax return, in the name of “John R. Burke, Inc.” However, the original lease agreement was between Jack Burke, individually, and the defendant. There was no testimony at trial as to how payments were made by the defendant, other than a reference by the defendant to cancelled checks she neglected to bring to trial. However, in her deposition taken in support of opening the judgment by confession, the defendant stated she was directed to make checks payable to Jack Burke, and that he personally picked up the checks each month. This was confirmed for the most part by the plaintiff, although plaintiff’s sons also went to the premises at times to pick up rent on behalf of the plaintiff. Plaintiff’s testimony and reliance on his corporate tax returns for 2008 and 2009 did not sufficiently support his contention that rent for those years was to be as set forth in the lease.

Plaintiff stated his knowledge that rent was not paid in full was because of his reliance on his tax returns. Plaintiff never sent written notice to the defendant in the three (3) years that she occupied the premises that she was in default of the lease, nor that she was paying less than owed, nor acknowledging that he was accepting her payments as partial payments. Plaintiff’s testimony was that he verbally advised the defendant every month when he collected rent that she was short on payments. Plaintiff took no steps to evict the defendant, nor did he refuse to renew the lease term at the end of 2008 or 2009. This was despite the fact plaintiff alleged defendant owed him $24,000 — $30,000 as of September 30, 2008 and $48,000 — $60,000 as of September 30,2009. No matter how bad the economy, it is not prudent business to keep such a delinquent tenant in a property without taking some course of action, or at least, by not renewing a lease term, or sending a letter of default.

Plaintiff testified he filed suit immediately after defendant vacated the premises. We note the complaint in confession of judgment was filed October 10, 2012 and plaintiff alleges therein that defendant vacated the premises on September 16, 2010. However, we also note that plaintiff sent no letter of default or demand for payment prior to filing the complaint. The defendant also testified she discussed renewal terms with the plaintiff prior to vacating the premises, in which the plaintiff offered to pay a portion of the heat bill because of the high bills and inability for the heat to work properly. If not satisfied with the amount of rent being paid, it would have been more prudent of the plaintiff to refuse to discuss terms of a renewal.

We also find the testimony of James Reid was compelling. Mr. Reid was a business acquaintance of the defendant in the antique field. He inquired about renting the premises from plaintiff for a similar use as the defendant at the end of defendant’s lease term. While negotiating a lease with the plaintiff, the plaintiff told Reid that the rent to be charged to Reid was what he initially was charging the defendant. The plaintiff told Reid that he lowered the rent twice for the defendant because he did not want to look for a new tenant if she moved out, as the market was slow. Plaintiff told Reid he now wanted the rent for a new tenant back to the original amount he wanted from the defendant since defendant was leaving anyway. Reid thought the rent to be charged to him was $3,500, but he was uncertain. He just knew it was more than plaintiff charged defendant, as related to him by the plaintiff. Mr. Reid also spoke to the defendant during this time, and she also advised him that she “re-negotiated” the rent to a lower amount after the initial term.

Mr. Reid was a credible witness. Whether or not he can recall the exact rent plaintiff wished to charge him is of minor importance, as we find his testimony convincing nonetheless. Reid and the plaintiff never came to terms on a lease, because the rent requested was too high for Reid. In the conversation with Reid, plaintiff did not mention that the defendant had failed to make payments, or that she was in default of her obligations. Mr. Reid’s testimony supports the testimony of the defendant. We find the defendant has provided testimony by a preponderance of the evidence that there was an oral agreement for monthly rent in the amount of $3,500.

Finally, we must address the plaintiff’s claim that the defendant did not pay any rent from January 1, 2010 to September 30, 2010. We find the plaintiff did show this by a preponderance of the evidence. Plaintiff filed a complaint soon after defendant vacated, alleging unpaid rent. Testimony showed the defendant was unhappy with the heating situation, and the economic uncertainties. Plaintiff sent no written notice to defendant regarding her default, but plaintiff appeared to be trying to work with the defendant to keep her in the premises, rather than having to look for a new tenant in a down economy. Plaintiff testified he requested rent each month and the defendant concurred this was the usual form of collection, defendant also testified plaintiff’s sons came to her business to request payments (although she expressed that they were harassing her). Although a timeframe was not given, the plaintiff did negotiate with Mr. Reid for a lease of the premises around the time defendant was still there, or had just vacated. Plaintiff’s tax return for 2010, and presumably his tax records, show no payments in 2010. His 2008 and 2009 tax returns showed the amounts defendant did pay in those two years (except an unexplained $4,500 difference in 2009) as agreed to by both parties. Defendant offered no proof of payment, in the form of receipts, cancelled checks, or bank statements, although she said at close of all evidence that she could get canceled checks if permitted. We find plaintiff was credible in his portion of testimony that defendant failed to pay any rent from January 1,2010 to September 30, 2010. We find the rent that should have been paid was $3,500 per month. For the nine months of non-payment, less security deposit of $4,500, the amount due is $27,000.

We find that despite defendant’s failure to pay rent as required for 2010, no attorneys fees, late fees or interest shall be assessed. Due to the re-negotiation of terms of the lease, and the lack of a fully signed lease agreement, we do not find the plaintiff has met his burden for this relief.

III. CONCLUSIONS OF LAW

1. No answer or responsive pleading shall be required in an action to confess judgment. Pa. R.C.P. 2952(b).

2. The proper procedure in an action to confess judgment, where the judgment has been opened, is to proceed to a trial on the merits of the complaint and grounds for the alleged judgment.

3. The plaintiff is unable to show that he is entitled to a judgment on the written lease agreement attached to the complaint for rent due in 2007, 2008 or 2009.

4. Defendant is not in default of the terms of the lease for 2007, 2008 or 2009.

5. Defendant is in default of the terms of the lease for 2010.

6. Plaintiff is not entitled to attorneys fees, late fees or interest.

DECREE NISI

And now, this 25th day of April, 2013, we find as follows:

1. Plaintiff’s verbal motion for default judgment requested at the start of trial in this matter for failure of the defendant to file an answer or other responsive pleading is denied.

2. Plaintiff’s request to enter judgment under the terms of a lease is granted in part and denied in part. We find in favor of the plaintiff and against the defendant in the amount of $27,000.00.

3. Either party may move for a final decree or other relief deemed necessary pursuant to the Rules of Civil Procedure.

      . A lease agreement was attached to plaintiff’s complaint and that copy was made a part of the record. However, that lease agreement did not contain a signature page, and no other copy of the lease was presented to this court.

      . The deposition of the defendant, taken October 31,2011, was filed with the court by praecipe on November 4, 2011.


source: Caselaw Access Project

author: HERRON, J.,

license: Public Domain

text:
    In re Estate of Leonard Brooks

      May 7, 2013-
   HERRON, J.,

Introduction

Darlene Melton has filed an appeal of a December 15, 2011 decree of the register of wills that revoked her letters of administration for the estate of her deceased father, Leonard Brooks. In so doing, the register also issued letters of administration d.b.n. to Angela Landers. This appeal raises the issue of whether the register of wills abused his discretion in making these rulings. For the reasons set forth below, there was no abuse of discretion by the register.

Legal Analysis

Under the PEF code, the register of wills has the authority to grant letters of administration. 20 Pa.C.S. §§ 901 & 711(12). The register also has the authority to revoke these letters of administration, while the orphans’ court has the subsequent power to remove an administrator for cause such as wasting or mismanaging the assets of an estate. See, e.g., 20 Pa.C.S. §§3181 (revocation) & 3182 (removal). In issuing letters of administration, the registrar is guided by the PEF code which provides:

(b) Letters of administration. — Letters of administration shall be granted by the register in such form as the case shall require, to one or more of those hereinafter mentioned and, except for good cause, in the following order:
(1) Those entitled to the residuaiy estate under the will.
(2) The surviving spouse.
(3) Those entitled under the intestate law as the register, in his discretion, shall judge will best administer the estate, giving preference, however, according to the sizes of the shares of those in this class.
(4) The principal creditors of the decedent at the time of his death.
(5) Other fit persons....

20 Pa.C. S. §3155

Alternatively, the PEF code specifies who may not be granted letters of administration:

No person shall be qualified to serve as a personal representative who is:

(1) Under 18 years of age.
(2) A corporation not authorized to act as fiduciary in the Commonwealth.
(3) A person, other than an executor designated by name or description in the will, found by the register to be unfit to be entrusted with the administration of the estate. 20 Pa.C.S. §3156.

In granting letters of administration, the register is acting in a quasi-judicial capacity. Friese’s Estate, 317 Pa. 86, 88, 176 A. 225, 226 (1934). If the register’s decree issuing letters of administration is challenged by appeal to the orphan’s court, that court’s standard of review is limited to determining whether the register abused his discretion. Estate of Dodge, 361 Pa. Super. 188, 189. 522 A.2d 77, 78 (1987); Martin Estate, 5 Pa. D. & C. 4th 421, 425 (Phila. O.C. 1990); Simmons-Carter Estate, 63 Bucks Co. Law Rep. 52, 53 (Bucks Cty. C.P. 1993), aff’d 434 Pa. Super. 641, 644 A.2d 791 (1994). Under ordinary circumstances, the register has the discretion to appoint an administrator “from within the class of persons eligible for that appointment.” Estate of Klink, 743 A.2d 482, 484 (Pa. Super. 1999). The exact parameters of this review of the issuance of letters of administration by the Register is not entirely clear. Typically, a court reviewing an appeal from the register’s decree appointing an administrator focuses on the record before the register to determine whether there was an abuse of discretion. See, e.g., Simmons-Carton Estate, 63 Bucks Co. Law Rep. at 53. Some courts emphasize that review of the register’s decree for an abuse of discretion does not entail a de novo hearing. Instead they focus strictly on the record before the register. Estate of Dodge, 361 Pa. Super. 188, 189, 522 A.2d 77, 78 (1987) (orphans’ court “refused a request for a hearing de novo and limited its review to the record established before the register of Wills”). Other courts, in contrast, have held hearings that still focus strictly on the record before the register, by taking that evidence as an exhibit at the orphans’ court hearing. Martin Estate, 5 Pa.D & C 4th 421 (Phila. O.C. 1990). There have also been instances where courts have held hearings that consider evidence in addition to the record that was before the register. Barrett Estate, 21 Fid Rep. 2d 183, 185 (Carbon Cty. O.C. 2001). In such cases, if the court goes beyond that register’s record and holds a hearing that considers additional evidence, the orphans’ court findings would be given the same weight and effect as a jury verdict.

In the present case, the record transmitted by the register consists solely of the December 15, 2011 decree vacating the letters of administration that were granted to Darlene Melton, an inventory dated November 18, 2011 listing a bank account in the amount of $31.97, proof of publication of the letters of administration that had been granted to Darlene Melton and, most importantly, a petition for the grant of letters filed by Darlene Melton. In that petition for probate and grant of letters, Darlene Melton listed only herself as the surviving intestate heir to Leonard Brooks. The register issued letters of administration to Ms. Melton on July 18, 2011, but a few months later the register vacated those letters and granted letters of administration d.b.n. to Angela Landers on December 15, 2011. In so doing, the decree states that it is “issued solely to appoint the named fiduciary.”

In appealing this December 15, 2011 decree, Angela Landers had sought to vacate register’s grant of letters granted to Ms. Melton on the grounds that Leonard Brooks had other heirs whom Ms. Melton had failed to acknowledge. To rebut this assertion, Ms. Melton submitted to the register Angela Landers’s birth certificate which did not identify Leonard Brooks as her father but instead identified her parents as Grandville Erwin Landers and llene Levene Ortiz.

Angela Landers, in contrast, maintains that Leonard Brooks had four children: Della Landers, Len Landers, Angela Landers and Darlene Melton. She emphasizes that at the hearing held by the register on November 9, 2011, she presented the register with evidence that Darlene Melton had previously concealed the existence of Leonard Brooks’s other children when Ms. Melton filed a petition in August 2010 with this court to have Leonard Brooks adjudicated an incapacitated person. In that petition, Darlene Melton listed only herself and Len Landers as his children. In response, Angela Landers filed an answer to alert this court that Leonard Brooks had four children. In support of this claim, she presented a certification by Judge Lederer of the family court division of the Philadelphia Court of Common Pleas that in the matter of Commonwealth v. Leonard Brooks on April 5, 1978 “deft admits paternity for children Della (10-28-68), Len (4-11-70) & Angela (3-30-71)” In addition, Angela Landers presented documentation dated May 22, 1978 that Leonard Brooks had filed an application for social security children’s benefits for Della Landers, Len Landers and Angela Landers.

In the course of the incapacity proceedings, Darlene Melton explicitly challenged Angela Landers’s standing on the grounds that she was not the legal child of Leonard Brooks. Upon analysis of the facts presented during the hearings and relevant PEF code provisions, this court concluded that Angela had standing to object in the incapacity hearing. In making this determination the PEF code was crucial. Under the PEF code, standing in an incapacity hearing is linked to the notice provisions which require that notice must be given “to all persons residing within the Commonwealth who are sui juris and would be entitled to share in the estate of the alleged incapacitated person if he died intestate at that time....” 20 Pa.C.S. § 5511(a).

Consequently, the test to determine whether Angela Landers had standing in the incapacity hearing that this court applied is the same test the register of wills would apply to determine whether she would qualify for letters of administration as a putative intestate heir of Leonard Brooks. Under the rules of intestacy, where a decedent dies without a spouse — as did Leonard Brooks — his entire estate would pass to his issue. 20 Pa.C.S. §2103. There are, moreover, special rules for children bom out of wedlock.

Where it is alleged that certain persons are the child of a deceased father, the following rule applies:

Persons bom out of wedlock
(c) Child of father — For purposes of descent by, from and through a person born out of wedlock, he shall be considered the child of his father when the identity of the father has been determined in any one of the following ways:
(1) If the parents of a child bom out of wedlock shall have married each other;
(2) If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence;
(3) If there is clear and convincing evidence that the man was the father of the child which may include a prior court determination of paternity.

20 Pa.C.S. §2107(c).

The certification of Judge Lederer that Leonard Brooks had admitted paternity to Della, Len and Angela Landers satisfied the requirement of 20 Pa.C.S. §2107(c) as “clear and convincing evidence that the man was the father of the child” as a “prior court determination of paternity.” This evidence convinced this court that Angela Landers had standing vis a vis the incapacity hearing of Leonard Brooks. It would also constitute sufficient evidence for a determination by the register that Angela Landers would have the same consanguinity as Darlene Melton which is one of the factors considered in the granting of letters of administration. 20 Pa.C.S. § 3155(b)(3). Under Pennsylvania precedent, the register of necessity has the authority to determine paternity in deciding who should receive letters of administration in cases of intestacy. Martin Estate, 5 Pa.D. & C 4th at 425-26. Equally important, Ms. Melton’s failure to acknowledge the existence of these other claimants in her petition for probate and grant of letters before the register clearly cast serious doubt on her trustworthiness in administering her father’s estate. This would be an important consideration for the register in exercising his discretion because the PEF code prescribes that “no person shall be qualified to serve as personal representative” who is “unfit to be entrusted with the administration of the estate.” 20 Pa.C.S. 3156(3).

For all of these reasons, the register did not abuse his discretion in this matter. In reaching this conclusion that the Register did not abuse his discretion with his December 15, 2011 decree, the limits of this holding need to be emphasized. As the register’s decree explicitly stated: “This decree is issued solely to appoint the named fiduciary.” As numerous Pennsylvania cases have underscored, a ruling as to an appropriate fiduciary is not tantamount to a ruling as to the proper distribution of the estate assets. See, e.g., Estate of Dodge, 361 Pa. Super. at 193, 522 A.2d at 79(“A determination regarding appellant’s right to receive letters of administration will not be res judicata with respect to a claim that she is the decedent’s widow for purposes of taking under the intestate law”). See also Boytor’s Estate, 130 Pa. Super. 591, 198 A.484 (1938); Maseloff Estate, 2 Pa. D & C 2d 120, 127 (Phila. 1955).

In her appeal to revoke the letters of administration granted to Angela Landers, Ms. Melton goes on to raise issues that are more appropriate for a petition to remove Angela Landers. Consequently, this ruling is without prejudice to the filing of an appropriate petition seeking removal.

      . Estate of Klink, 743 A2d. at 484.

      . See, e.g., 12/14/12 Darlene Melton petition, ¶ 4,; 2/25/13 Angela Landers answer, ¶2.

      . 12/14/12 Darlene Melton petition, at ¶¶ 3-6 & ex. B. According to Angela Landers, the register convened a hearing on November 9,2011 to consider her challenge to the issuance of letters to Ms. Melton. 2/25/13 Angela Landers answer, ¶2.

      . 2/25/13 Angela Landers answer, ¶2 & Ex. E.

      . 2/25/13 Angela Landers answer, Ex. F.

      . See 1/26/11 N.T. In re Estate of Leonard Brooks, O.C. No. 1309 AI of 2010, attached as Ex. K to 2/25/13 Angela Landers answer.


author: WILLIAMSON, J.,

text:
    Smith v. VNA/Hospice of Monroe County, Inc.

      May 28, 2013

      David A. Miller, for plaintiff.

      Fred B. Buck, for defendant.
   WILLIAMSON, J.,

— Plaintiff commenced this action by filing a complaint on January 22, 2013. Defendant filed the preliminary objections to plaintiff’s complaint that are before this court on March 19, 2013. Oral argument was heard on May 6, 2013. Briefs from both parties have been received and we are now ready to dispose of the preliminary objections.

This matter arises out of the nursing, wound care, and home care provided by the defendant to the decedent, Muriel Smith. Plaintiff asserts a cause of action in the nature of professional liability and wrongful death against defendant which caused the decedent to sustain severe injuries including an infected stage IV sacral pressure ulcer which plaintiff alleges directly led to the decedent’s death. Plaintiff’s complaint seeks punitive damages for the alleged outrageous, willful, wanton, and reckless conduct.

PRELIMINARY OBJECTION

In ruling on preliminary objections, “all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences deducible 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 opinions.” Penn Title Ins. Co. v. Deshler, 661 A.2d 481, 483 (Pa. Cmwlth. 1995).

Defendant’s preliminary objections ask this court to dismiss plaintiff’s claims for punitive damages on the grounds that plaintiff’s complaint is legally insufficient to state a claim for punitive damages.

I. Preliminary Objection: Failure to State a Claim for Punitive Damages

Defendant’s preliminaiy objection is in essence a demurrer. Defendant argues that there are no material facts plead to support a claim of punitive damages. A demurrer may be sustained only if it is clear on the face of the pleading that the law will not provide or permit the recovery sought. Morgan v. McPhail, 672 A.2d 1359 (Pa. Super. 1996). If there is any doubt, it should be resolved by overruling the demurrer. Mellon Bank N.A. v. Fabinyi, 650 A.2d 895 (Pa. Super. 1994).

The Pennsylvania Supreme Court, in Tayar v. Camelback Ski Corp., Inc., 47 A.3d 1190 (2012), used the Restatement (Second) of Torts definition of “reckless disregard” and its explanation of the distinction between ordinary negligence and recklessness. The Restatement (Second) of Torts defined “reckless disregard” as follows:

The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that Which is necessary to make his conduct negligent.

Id. at 1200-1201, citing Restatement (Second) of Torts §500 (1965).

Reviewing plaintiff’s complaint as a whole, there are sufficient facts plead to support aclaim for punitive damages at this early stage of litigation. Defendant cites paragraph 38 of the complaint as insufficient, even if believed by a jury, to support an award of punitive damages. Defendant, however, completely ignores the preceding paragraphs of the complaint, namely those under a bold-centered headline titled “FACTS”. These paragraphs, numbered 11 through 29, when read in conjunction with the rest of the complaint, certainly allege the required material facts to support a claim for punitive damages.

Here, at this early point in litigation, we cannot say as a matter of law that defendant’s conduct, if proven as alleged in the complaint, was not reckless. See McClellan v. Health Maint. Org. of Pa., 604 A.2d 1053, 1061 (Pa. Super. 1992) (explaining it would be premature to dismiss plaintiff’s claim for punitive damages in medical malpractice action based on allegations contained in complaint), appeal denied, 616 A.2d 985 (Pa. 1992). Defendant has the opportunity to determine before trial whether the evidence which the Plaintiffs believe establishes reckless conduct is sufficient to submit the claim for punitive damages to the jury. See Moran v. G. & W.H. Corson, Inc., 586 A.2d 416, 422, 422-425 (Pa. Super. 1991) (determining evidence of alleged outrageous conduct was insufficient to permit issue of punitive damages to jury). A jury could conceivably find that the defendant acted in reckless disregard for the safety of the decedent when the defendant or it’s agents knowingly failed to provide the decedent with appropriate care. Furthermore, a jury could find that in allowing blame to be pointed toward the decedent’s family during the investigation into her condition, that the defendant acted in a willful, wanton, and outrageous manner. Therefore, it is premature, based upon the allegations contained in the complaint, to dismiss the basis for punitive damages. Defendant’s preliminary objections are overruled.

ORDER

And now, this 28th day of May, 2013, it is hereby ordered that the defendant’s preliminary objections to plaintiff’s complaint are overruled.


author: TERESHKO, J,

text:
    Burley v. University City Science Center

      June 4, 2013

      Anthony Lopresti, for appellant

      Allen Richard Bunker, for appellee University City Science Center

      Brian Leo Calistri, for appellee Parkway Corp.

      John T. Donovan, for appellee Intermodal Container
   TERESHKO, J,

— Plaintiff appeals this court’s orders dated August 12, 2011, granting the motions for summary judgment submitted by defendants University City Science Center and Parkway Corporation.

FACTUAL BACKGROUND

Plaintiff commenced this action by filing her complaint on April 24, 2009. (Complaint, ¶4). On December 21, 2008, plaintiff was employed as a security guard by Spectra Guard Acquisitions d/b/a Allied Barton (hereinafter “Spectra Guard”) at 3665 Market Street. (Complaint, ¶ 5). The building and garage at 3665 Market Street were owned by University City Science Center. (Complaint, ¶ 5). University City Science Center (hereinafter “UCSC”) contracted with plaintiff’s employer, Spectra Guard for security services at 3665 Market Street. (UCSC’s motion for summary judgment, ¶ 2). The property manager of the parking garage at 3665 Market Street was defendant Parkway Corporation (hereinafter “Parkway.”)

Upon beginning her shift on December 21, 2008, plaintiff was informed by the previous shift supervisor that there was an accumulation of ice in the garage. (Answer to Parkway Corporation’s motion for summary judgment, ¶¶ 20-22). As a shift supervisor, plaintiff was trained to look for safety hazards in the parking garage, including ice and snow. (Deposition of Sheena Epps attached as exhibit “C” to Parkway’s motion for summary judgment, pg. 33, 5-15, pg. 72 lines 1-10).

If a shift supervisor observed a safety hazard in the parking garage, company procedure required notification of the site supervisor and account manager. (Deposition of Sheena Epps attached as exhibit “C” to Parkway’s motion for summary judgment, pg. 72, lines 11-15). Once the shift supervisor notified the account manager that the tour could not be conducted completely due to the hazards presented by the ice, the account manager would instruct the shift supervisor how to proceed. (Deposition of Sheena Epps attached as exhibit “C” to Parkway’s motion for summary judgment, pg. 29, lines 20-22; pg. 72, lines 19-24).

While plaintiff was making her rounds on the night of the accident, she observed the ice her coworker warned her about, and rather than notify the site supervisor or account manager as dictated by company procedure, she proceeded to traverse the ice, (Plaintiff’s deposition attached as exhibit “A” to answer to parkway’s motion for summary judgment, pg. 49, lines 13-24; pg. 29, lines 17-22; pg. 33, lines 1-13). Plaintiff then slipped on the ice, sustaining injury. (Complaint, ¶5).

Plaintiff commenced this action by filing her complaint on April 24, 2009. (See docket). On June 5, 2009, UCSC filed a joinder complaint against Spectra Guard. (See docket). UCSC filed an answer to the complaint on July 24, 2009, and Spectra Guard filed an answer to the complaint on July 29, 2009. (See docket).

Spectra Guard filed a motion for summary judgment on February 24,2010. (See docket). UCSC filed an answer to the motion for summary judgment on March 28,2011 and subsequently filed a motion for partial summary judgment against Spectra Guard on March 29, 2011. (See docket). On April 14, 2011, UCSC filed a joinder complaint against Intermodal Container Corporation and Parkway. (See docket). On April 29, 2011, this court denied Spectra Guard’s motion for summaty judgment and granted UCSC’s motion for partial summary judgment. (See docket).

On May 4, 2011, Parkway filed preliminary objections to the second joinder complaint of UCSC, and this court granted the preliminary objections, dismissing the joinder complaint. (See docket). Parkway filed a motion for summary judgment on May 19,2011. (See docket). UCSC filed a motion for summary judgment on June 1, 2011. (See docket). Spectra Guard filed a motion for summary judgment on June 7, 2011. (See docket). Plaintiff filed answers to UCSC and parkway’s motions for summary judgment on July 1, 2011 and July 7, 2011 respectively. (See docket). On August 9, 2011, this court granted motions for summary judgment submitted by Parkway, Allied Barton and UCSC. (See docket).

On September 6, 2011, plaintiff appealed this court’s orders of August 9, 2011, granting the motions for summary judgment submitted by Parkway and UCSC. (See docket). On September 12, 2011, plaintiff filed a praecipe to withdraw the notice of appeal in the lower court and filed two more appeals to Superior Court on the same date challenging the August 9, 2011 orders. (See docket). The appeals at 2605 EDA 2011 and 2565 EDA 2011 were quashed as interlocutory by order of the Superior Court dated November 8, 2012.

On April 25, 2013, plaintiff filed a praecipe to dismiss the remaining defendant, Intermodal Container Corporation with prejudice, making this court’s August 9, 2011 orders final and appealable. (See docket). Thereafter, plaintiff again appealed this court’s August 9, 2011 orders granting defendants UCSC and Parkway’s motions for summary judgment. (See docket).

On May 14, 2013, the court directed plaintiff to file a concise statement of errors complained of on appeal, and plaintiff complied on May 30, 2013. Id. The issues to be addressed on appeal are:

1) Whether this court erred by granting UCSC’s motion for summary judgment.
2) Whether this court erred by granting Parkway’s motion for summary judgment.

LEGAL ANALYSIS

Summary judgment is governed by Pennsylvania Rule of Civil Procedure 1035.2, which states,

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 juiy. Pa. R.C.P. 1035.2

In determining whether summary judgment is proper, the record is viewed in the light most favorable to the non-moving party, and all doubts as to whether a genuine issue of material fact exists are resolved against the moving party. Pennsylvania State Univ. v. County of Centre, 532 Pa. 142, 615 A.2d 303, 304 (Pa. 1992). The appellate court’s scope of review is plenary. O ’Donoghue v. Laurel Savings Ass ’n, 556 Pa. 349, 728 A.2d 914, 916 (Pa. 1999). A trial court’s decision to grant or deny a motion for summary judgment will only be reversed where the lower court committed an error of law or abused its discretion. Cochran v. GAF Corp., 542 Pa. 210, 666 A.2d 245, 248 (Pa. 1995). Additionally, “[although the question of whether a danger was known or obvious is usually a question of fact for the jury, the question may be decided by the court where reasonable minds could not differ as to the conclusion.” Carrender v. Fitterer, 503 Pa. 178, 185-6, 469 A.2d 120, 124(1983).

Plaintiff makes the same arguments in her answers to UCSC and Parkway’s motions for summaiy judgment and therefore the merits of these arguments can be addressed jointly. First, plaintiff asserts that this court erred by granting Parkway and UCSC’s (collectively “defendants”) motions for summary judgment because defendants failed to warn plaintiff of the dangerous condition. However, plaintiff was placed on notice of the icy conditions by the previous shift supervisor, and plaintiff admitted that she observed the ice before she proceeded to walk across it. Additionally, there were no Parkway personnel on the premises on the weekends per the parties’ agreement. (Deposition of Sheena Epps attached as exhibit “C” to Parkway’s motion for summary judgment, pg. 72, lines 2-10). Thus, unless a Parkway employee was contacted by someone on the premises, Parkway would not have any knowledge of the condition of the property.

The facts in the instant matter are similar to those set forth in Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983). In Carrender, the appellee parked her car next to a patch of ice in appellants’ parking garage despite the availability of other parking spots that were free of ice and despite the knowledge that slippery conditions posed a significant risk to a person with a prosthesis. Appellee then proceeded to walk across the ice to appellants’ chiropractic clinic for her appointment. Upon returning to her car, the appellee slipped and sustained a fracture of her left hip.

The court observed, “Appellee’s own testimony showed not only that the existence of the ice was obvious to a reasonably attentive invitee, but also that appellee herself was aware of the ice and appreciated the risk of traversing it.” Id. at 186, 124, “By voluntarily proceeding to encounter a known or obvious danger, the invitee is deemed to have agreed to accept the risk and to undertake to look out for himself.” Id. at 188, 125. Thus, the court concluded that the appellants did not have a duty to warn appellee about the patch of ice in the parking lot as the danger presented would have been apparent, and appellee recognized the inherent risk. Id. at 184, 123.

Plaintiff cites Fierman v. SEPTA, 277 Pa. Super. 252, 419 A.2d 757 (1980), for the premise that an accumulation of ice is relevant to comparative negligence but is not a basis to deny recoveiy. However, Fierman involved the appropriateness of a compromise verdict as a result of inconsistent evidence and contradictory testimony presented by plaintiff at trial. The court held that a compromise verdict was permissible because it was within the province of the jury to weigh the evidence and resolve the inconsistencies presented at trial in order to reach an amount of damages that would adequately compensate the plaintiff. Id. at 255,759. The facts presented by the parties in the instant matter are not contested and the matter turns on issues of law. Rather, plaintiff disputes whether or not, on the basis of the facts alleged, defendants owed plaintiff a duty that was breached by defendants’ failure to warn.

Plaintiff also cites Slobodzian v. Beighley, 401 Pa. 520, 164 A.2d 923 (1960), finding that familiarity with the property did not defeat a plaintiff’s ability to recover. Here, however, defendants are not alleging that plaintiff’s familiarity with the property precludes recovery. Recovery is unwarranted because plaintiff proceeded in the face of a known risk. Plaintiff was informed about the existence of ice in the parking garage, observed the ice, and proceeded to walk across it. Therefore, plaintiff’s actions relieved defendants of any duty that may have been owed.

Second, plaintiff asserts that this court erred by granting defendants’ motion for summaiy judgment because defendants owed a duty to the plaintiff. However, plaintiff knowingly encountered an open and obvious risk after being warned of the potential danger by her co worker and despite the availability of alternate routes.

Plaintiff observed the risk she had been advised of and chose to encounter it. The risk was obvious and known because as the court in Long v. Norriton Hydraulics stated, “Ice is always slippery and a person walking on ice always runs the risk of slipping and falling.” In addition to the fact that plaintiff was warned about the ice, and ice is a known and obvious risk, plaintiff had a choice in encountering the risk. Plaintiff testified in her deposition that there was ice everywhere and thus no alternate route; however, per company procedure, plaintiff should have called the site supervisor to say she couldn’t complete her rounds and turned back. By admitting that she observed the ice and recognized the risk and chose not to take an alternate path, Plaintiff assumed the risk of injury, Seewagen v. Vanderkluet, 338 Pa. Super. 534, 543 (1985).

Furthermore, plaintiff’s status as an independent contractor relieved defendants of a duty to warn. Despite the fact that defendants had no duty to warn plaintiff of the obvious danger presented by the ice, plaintiff was in fact warned of the ice by her coworker at the start of her shift. The court in Fortune v. Hamilton described the duties owed to an independent contractor as follows:

[A] possessor has no obligation to warn an independent contractor of dangers that would be at least as obvious to the contractor as the owner. Gutteridge v. A.P. Green Services, 2002 Pa. Super. 198, 804 A.2d 643, 657 (2002), citing Colloi v. Philadelphia Electric Co., 481 A.2d 616, 620 (1984). Pennsylvania courts have synthesized these principles to explain, ‘The question of whether a landowner owes a duty to warn an independent contractor of dangerous conditions on the premises turns on whether the owner possesses ‘superior knowledge’ or information which places him in a better position to appreciate the risk posed to the contractor or his employees by the dangerous conditions.’ Gutteridge, 804 A.2d at 657-658, citing Colloi, 481 A.2d at 620.

Fortune v. Hamilton, 81 Pa. D.&.C 4th 401, 406-407 (2007).

As the risk posed by ice is obvious, neither defendant possessed superior knowledge placing them in a better position to appreciate the risk posed by the ice.

Therefore, because defendants had no duty to warn plaintiff of a risk which was both known and obvious, plaintiff had alternate routes available to her, and company procedure required her avoid the ice, plaintiff has no right to recover from defendants for her injuries.

CONCLUSION

For the foregoing reasons, this court respectfully requests that its decision to grant defendants Parkway Corporation and University City Science Center’s motions for summary judgment be affirmed.

      . This procedure was recorded in the read-file memo. (Deposition of Sheena Epps attached as exhibit “C” to Parkway’s motion for summary judgment, pg. 33 lines 14-22).

      . Spectra Guard’s motion for summaty judgment was unopposed.

      . The claim against Intermodal Container Corporation remained at this point in time.

      ~443 Pa. Super. 532, 537, 662 A.2d 1089, 1091 (1995)

      . The court in Seewagen concluded that assumption of the risk remains a viable defense in Pennsylvania.


author: DOZOR, J.,

text:
    Ford v. Ford

      June 20, 2013—

      Joseph A. Agozzino, for appellant

      Joseph J. Del Sordo, for appellee
   DOZOR, J.,

NATURE AND HISTORY OF THE CASE:

This appeal is an appeal from this court’s final order denying plaintiff’s petition to set aside property settlement agreement and open equitable distribution, and an appeal of this court’s order sustaining defendant’s preliminaty objections to petitioner plaintiff’s preliminary objections to petitioner plaintiff’s petition to set aside property settlement agreement and open equitable distribution and cancelling the April 3, 2013 trial date, dated March 26, 2013. The nature and history of the case is as follows:

On October 22, 2001, Patricia M. Ford (“appellant wife”) commenced a divorce action against Gary D. Ford (“appellee husband”). Appellant wife was independently represented by legal counsel of her selection, Michael R. Sweeney, Esquire, at the time of filing the divorce action, in the negotiation, preparation and execution of the property settlement agreement (“PSA”), in the entry of the final divorce decree (May 13,2003), and thereafter. On January 24,2003, the parties signed a PSA. At the time of signing the PSA, appellant wife was still represented by Mr. Sweeney.

On May 12,2003, appellant wife and appellee husband were divorced from bonds of matrimony by decree of this court. Appellant wife, through her attorney, caused the PSA to be incorporated in the divorce decree. The PSA was modified and ratified, in writing, by addendums four times before it was incorporated into the final divorce decree (on January 24, 2003, February 5, 2003, February 28, 2003, and March 14, 2003) and, during all of these modifications, Mr. Sweeney continued to represent appellant wife. The PSA was still modified and ratified, in writing, an additional two times after it was incorporated into the divorce decree (on December 22, 2003, and June 24,2004). On or before June 24,2004, appellant wife was paid all she was owed under the PSA.

Appellant wife filed a petition to set aside property settlement agreement and open equitable distribution on February 17, 2012, and an amended petition to set aside property settlement agreement and open equitable distribution on October 2, 2012.

This court held a hearing on the petition to set aside property settlement agreement and open equitable distribution and the preliminary objections to that petition on February 4, 2013. Following the hearing, the attorneys submitted to this court proposed findings of fact and conclusions of law as well as proposed orders. On March 26,2013, this court issued an order denying appellant wife’s petition to set aside the property settlement agreement and denied the request to open the equitable distribution hearing. This court also sustained appellee husband’s preliminary objections to appellant wife’s petition to set aside the property settlement agreement and denied the request to open the equitable distribution hearing. Finally, this court’s March 26, 2013 order cancelled the February 4, 2013 trial date.

On April 30, 2013, appellant wife filed a notice of appeal. On May 6, 2013, this court issued an order requesting a statement of errors complained of on appeal pursuant to Pa.R.A.P 1925(b). In response to the 1925(b) request, appellant wife submitted the following issues on appeal:

1. The court erred in sustaining husband’s preliminary objections since the property settlement agreement in issue herein lacked full and fair disclosure of the parties’ fair financial status in that it failed to provide values for the individual assets it disclosed.
2. The court erred in sustaining husband’s preliminary objections since Wife alleged fraud with the adequacy and specificity required to overcome a preliminary objection related thereto.
3. The court erred in sustaining husband’s preliminary objections since wife stated a cause of action for recovery of funds still due to her under the property settlement agreement with the adequacy and specificity required to overcome a preliminary objection related thereto.

FACTS:

Appellant wife is an adult individual currently residing at 13 Reservation Trail, Media, Pennsylvania. Appellee husband is an adult individual currently residing at 416 Turner Road, Media, Pennsylvania 19063. The parties were formerly husband and wife, having lawfully married on May 18, 1984. See property settlement agreement (“PSA”), page 1. The parties were divorced by court order, signed by this court, on May 12, 2003. This court notes that the property settlement agreement, includes the addendums dated January 24, 2003, February 5, 2003, February 28, 2003, March 14, 2003, a fifth addendum of March 14, 2003 signed and dated by the parties on December 22, 2003, and finally, a sixth addendum dated July 24,2004 signed and dated by the parties June 24,2004. The divorce decree specifically states, “Said Agreement shall not merge with, but shall survive this Decree.” This court notes that the sixth addendum signed on June 24, 2004 specifically states:

WHEREAS, the parties have agreed to settled the two remaining issues. One, being the cash owed second, the proceeds of the sale of the Howarth Property.
WHEREAS, the parties have agreed to settled both in the amount of (Sixty Thousand dollars) $60,000.00.

The PSA disposes of all of the claims that either party may have had against the other by reason of their marital relationship and otherwise, and releases the other from any such claims. The PSA had no income tax returns (as exhibits), or any other indication of the income generated by Ear 2 Ear, in the body of the agreement. While the PSA does not state a dollar value of any asset, it fully and meticulously identifies and discloses, in painstaking detail, all of the property being disposed of therein as well as the assets and monies to be received by each party and the methodology for such disposition.

The petition, which this court denied, was filed nine years after the last PSA was modified and nine years after the last payment was received by appellant wife. Appellant wife took no action to challenge or overturn the PSA from the time it was initially signed on January 24, 2003, until the time she filed a petition to set aside property settlement agreement and open equitable distribution on February 17, 2012, a period of over nine years.

In her petition, appellant wife did not specifically identify, nor specifically allege that a single marital asset was not disclosed in the property settlement agreement. Appellant wife did not allege the value of a single asset. Appellant wife did not allege that the value of the assets and benefits that appellee husband received under the PSA was disproportionate to what she received. Appellant wife did not allege that the PSA failed to make reasonable provisions for her.

This court notes that appellant wife acknowledged that she fully understood each and every provision of the PSA and its legal consequence, and appellant wife concurred that the PSA was fair and equitable, that it was being entered into freely and voluntarily, and that it was not the result of any fraud, coercion duress, undue influence or collusion, nor induced by any improper or illegal means whatsoever. Additionally, appellant wife did not allege that the PSA was unfair, unjust or inequitable under the circumstances.

Additionally, appellant wife did not allege any articulable fraud such that would affect what appellant wife received under PSA. Appellant wife did not aver with particularity any fraud or misrepresentation such as would have affected a disclosure of any martial property.

This court notes that as of June 24, 2004, appellant wife was fully paid all that she was due under the PSA. Appellant wife waited over nine years from the signing of the PSA (and nearly eight years after receiving full payment under the PSA) before first making her claim. Appellant wife alleged and testified that a non-party, Ron Ottaviano, was convicted of a crime; however, appellant wife did not provide this court with evidence as to how that conviction, if true, affects the agreement reached by the parties. This court notes that Mr. Ottaviano was a trustee of marital property and assisted appellee husband in establishing certain trusts that are contained in the PSA. appellant wife alleged that it was as a result of her receiving correspondence from the New Jersey District Court Probation Office, Division of New Jersey, regarding Mr. Ottaviano, that caused her to seek counsel to review the January 24, 2003 property settlement agreement. Appellant wife did not provide this court with any specific crimes committed by Mr. Ottaviano. This court is not permitted to speculate that any fraud or crime might have been committed that affects the petitoner.

DISCUSSION:

It is well-settled law in Pennsylvania that a husband and wife are free to determine their property rights and support obligations by contract called a property settlement agreement. See 23 Pa.C.S. §3105. A property settlement agreement and its addendums will be enforced by the courts in accordance with the same rules of law applicable to contract interpretation. Gocek v. Gocek, 417 Pa. Super. 406, 409, 612 A.2d 1004, 1006 (1992), citing Kleintop v. Kleintop, 291 Pa. Super. 491, 495, 436 A.2d 223, 225 (1981).

“[T]he paramount goal of contract interpretation is to ascertain and give effect to the parties’ intent.” Bianchi v. Bianchi, 859 A.2d 511, 515 (Pa. Super. 2004), citing Lang v. Meske, 850 A.2d 737, 739 (Pa. Super. 2004). In Pennsylvania, property settlement agreements are presumed to be valid and binding on the parties. McGannon v. McGannon, 241 Pa. Super. 45, 359 A.2d 431 (1976). When interpreting a property settlement agreement, the court will determine that the former husband and wife will be bound by their agreements, absent proof of fraud, misrepresentation or duress. Sabad v. Fessenden, 825 A.2d 682, 688 (Pa. Super. 2003). Additionally, the former husband and wife will be bound “without regard to whether the terms were read and fully understood and irrespective of whether the agreements embodied reasonable or good bargains.” Id. at 688. A court may construe or interpret a property settlement agreement as it would a contract; however, that same court has neither the power nor the authority to modify that property settlement agreement unless there is conclusive proof of fraud or mistake. See Bianchi v. Bianchi, 859 A.2d 511, 515 (Pa. Super. 2004).

In drafting the property settlement agreement, the husband and wife are required to provide to each other a full disclosure and fair disclosure of their financial resources,Stoner v. Stoner, 572Pa. 665, 673, 819 A.2d 529, 533 (2003). Therefore, in order for this court determine that there was no error in denying the petition to set aside the property settlement agreement and that there was no error in granting the preliminary objections, the parties property settlement agreement must contain a full and fair disclosure of their respective financial positions. Colonna v. Colonna, 791 A.2d 353, 355 (Pa. Super. 2001), citing Simeone v. Simeone, 525 Pa. 392, 402, 581 A.2d 162, 167 (1990).

The pertinent question therein becomes: what constitutes full and fair disclosure?

The Pennsylvania Supreme Court has held that because the parties to a property settlement agreement stand in a relation of mutual confidence and trust, the disclosure of their financial positions in preparation of the property settlement agreement must be full and fair; however, it need not be exact. Simeone v. Simeone, 525 Pa. at 402, 581 A.2d at 167. Therefore, a full and fair disclosure in the property settlement agreement merely requires sufficient disclosure to allow the intended party to make an informed decision. Busch v. Busch, 732 A.2d 1274, 1278 n.5 (Pa. Super. 1999), citing Gula v. Gula, 380 Pa. Super. 249, 254, 551 A.2d 324, 327(1988).

If there is no full and fair disclosure in a property settlement agreement, a party may assert that there has been a material misrepresentation in the inducement for entering into a property settlement agreement. Sobad, v. Fessenden, 825 A.2d at 68. Pennsylvania courts have determined that there is a presumption of full disclosure when a property settlement agreement specifically provides that full disclosure of the parties’ financial assets has been made. Porreco v. Porreco, 571 Pa. 61, 69, 811 A.2d 566, 570 (2002). With a presumption of full disclosure, the burden falls on the party seeking to invalidate the property settlement agreement to show that a fraudulent misrepresentation occurred. Porreco v. Porreco, 571 Pa. at 69, 811 A.2d at 570 (2002). “If a spouse attempts to rebut this presumption through an assertion of fraud or misrepresentation then this presumption can be rebutted [only] if it is proven by clear and convincing evidence.” Simeone v. Simeone, 525 Pa. at 403, 581 A.2d at 167 (1990), citing Hillegass Estate, 431 Pa. 144, 152-53, 244 A.2d 672, 676-77 (1968).

This court’s concern wim this allegation is that appellant wife appears to be taking issue with the underlying inequity of the property settlement agreement, but is expressing that concern by way of a fraudulent misrepresentation claim. After all, parties to a property settlement agreement are bound “without regard to whether the terms were read and fully understood and irrespective of whether the agreements embodied reasonable or good bargains.” Sabad v. Fessenden, 825 A.2d at 688. However, a court may find that a party is not bound to a contractual provision, if the court deems that provision to be unconscionable. See Colonna v. Colonna, 791 A.2d 353, 357 (Pa. Super. 2001). In order for a court to find a contractual provision unconscionable, it must determine “that the contractual terms are unreasonably favorable to the drafter” and that there [was] no meaningful choice on the part of the other party regarding acceptance of the provisions.’” Colonna v. Colonna, 791 A.2d 353, 357 (Pa. Super. 2001), citing Todd Heller Inc. v. United Parcel Service Inc., 754 A.2d 689, 701 (Pa. Super. 2000).

That brings this court to examine the property settlement agreement at hand. Overall, this court finds that this agreement is not unconscionable because appellant wife has failed to show that both parties were not of equal bargaining power. All properties and trusts created relating to those properties are specifically listed in the property settlement agreement. See property separation agreement, ¶12, Pages 8-9. Therefore, we find that appellee husband made a full and fair disclosure of his financial position at the time the agreement was executed. We further find that appellant wife has failed to present any evidence of fraudulent misrepresentation on the part of appellee husband. As such, we are compelled to uphold the agreement under Pennsylvania law.

First and foremost, this court notes that appellant wife waived her right to any claim not contained in the property settlement agreement, and she is therefore precluded from bringing this action. Also, pursuant to the terms of the property settlement agreement, wife’s time for voiding it expired on April 15, 2003, or after she received $195,000 (at the latest, June 24, 2004), both passed approximately ten (10) years ago. Thus, it is this court’s position that wife waived her right to bring this action, and is therefore precluded from pursuing it. Even in light of the above, this court will individually address each issue complained of on appeal.

The first issue complained of on appeal is that this court erred in sustaining preliminary objections because the property settlement agreement at issue lacked full and fair disclosure of the parties’ financial status in that it failed to provide values for the individual assets it disclosed. We determine that there was adequate disclosure of the parties’ financial status, and that disclosure was full and fair, without the explicit inclusion of dollar amounts. As discussed above, while financial disclosure must be full and fair, it need not be exact. See Simeone v. Simeone, 525 Pa. at 4012, 581 A.2d at 167. Therefore, full and fair disclosure merely requires sufficient disclosure to allow the intended party to make an informed decision. Busch v. Busch, 732 A.2d at 1278 n.5, citing Gula v. Gula, 380 Pa. Super, at 254, 551 A.2d at 327.

This court so finds such full and fair disclosure because, first, appellant wife was represented by her own hand picked, competent legal counsel in the preparation and execution of the property settlement agreement. Second, both parties and their respective attorneys jointly prepared the property separation agreement; therefore all disclosures are the joint disclosures of both parties, not just appellee husband. Third, the property settlement agreement, which does not state a dollar value of any asset, still meticulously identifies and discloses, in painstaking detain, all of the property being disposed of therein as well as the assets and monies to be received by each party and the methodology for such disposition. Wife therefore cannot now complain about husband’s alleged failure to disclose anything to her satisfaction. Additionally, wife acknowledged that she carefully read and fully considered the property settlement agreement and all of the statements, terms, conditions and provisions thereof prior to signing. Section 29 of the property settlement agreement consists of a waiver, which explicitly states:

Each of the parties is fully cognizant of his or her respective right to a full and fair disclosure of the nature, value and extent of the assets, income, expectancies and liabilities of the other, however owned, designated or titled, prior to the execution of this Agreement.

Furthermore, wife, by signing the property settlement agreement, acknowledged that she was intimately familiar with the assets, income, expectancies and liabilities of the other, however designated or titled, that she possesses all knowledge she desires regarding the same, that she has been given the unrestricted opportunity to obtain any information she desires through whatever process she desires, that she elected to waive any further itemization, enumeration, or further disclosures.

In order to ensure such a full and fair disclosure, wife either used such methodology of discovery to her satisfaction, or elected not to do so at that time, and cannot now complain about not doing so or to the absence of placing such values in the property settlement agreement. As section 45 of the property settlement agreement states

this Agreement contains the entire understanding of the parties, and there are no representations, warranties, covenants or undertakings other than those expressly set forth herein.

In light of the above, it appears that wife was given ample opportunity to challenge the depth, objectivity, or substance of the disclosure provided in the property settlement agreement, and with competent assistance of counsel, voluntarily agreed to enter into the agreement at issue. Therefore, regardless of the parties’ exclusion of dollar amounts, there was a full and fair disclosure of the parties’ financial status.

The second issue complained of on appeal is that the court erred in sustaining husband’s preliminary objections since wife alleged fraud with the adequacy and specificity required to overcome a preliminary objection related thereto. As Pennsylvania law has outlined, full and fair disclosure is presumed when a property settlement agreement specifically provides that full disclosure of the parties’ financial assets has been made. Porreco v. Porreco, 571 Pa. at 69, 811 A.2d at 570. That presumption of full and fair disclosure may be overcome by proving fraud or misrepresentation, and such fraud or misrepresentation must be proven by clear and convincing evidence.” Simeone v. Simeone, 525 Pa. at 403, 581 A.2d at 167, citing Hillegass Estate, 431 Pa. at 152-53, 244 A.2d at 676-77. While appellant is correct that the property settlement agreement may be set aside by proving fraud or misrepresentation, the mere allegation of fraud or misrepresentation does not give cause to summarily set the agreement aside. Wife must prove by clear and convincing evidence that such fraud of misrepresentation existed, and no such evidence has been presented. Appellant has not, and is likely unable to present clear and convincing evidence that and such fraud or misrepresentation existed in the instant case.

Appellant wife alleges a fraudulent misrepresentation occurred because appellee husband fraudulently converted marital property in to trusts to divest her of her interest in said marital property. The allegations precedes thusly; 1) husband allegedly owned no less than fourteen properties, as well as other valuable personal items, all listed in the property settlement agreement; 2) these items were allegedly purchased during the course of the marriage, and are thus marital property even though those properties and items were titled to husband alone; 3) that husband intentionally transferred these properties and items into fourteen trusts in order to divest wife’s interest in those properties and items; 4) the alleged trusts had no assigned value or contents listed in the property settlement agreement; 5) that a Mr. Ronald Ottaviano assisted husband in the creation of the trusts at issue, and he currently, or formerly served as a trustee of Howarth Trust, one of the trusts at issue; 6) Sometime in 2011 Mr. Ottaviano was convicted on a number of federal crimes, all related to trusts created by Mr. Ottaviano’s company, Mid-Atlantic Trustees and Administrators.

In light of the above, and in addition to ample testimony heard on Februaiy 4, 2013, this court determines that the appellant has not provided clear nor convincing evidence or testimony that would rise to the level of fraud or misrepresentation, and that the evidence and testimony provided to this court is circumstantial, at best. First, we note again, that appellant wife was represented by competent counsel in the preparation and execution of the property settlement agreement. Second, both parties and their respective attorneys jointly prepared the property separation agreement; therefore all disclosures (including the trusts at issue) are the joint disclosures of both parties, not just husband. Additionally, we again point to section 29, which explicitly states:

Each of the parties is fully cognizant of his or her respective right to a full and fair disclosure of the nature, value and extent of the assets, income, expectancies and liabilities of the other, however owned, designated or titled, prior to the execution of this Agreement.

Wife had furthermore been given the unrestricted opportunity to obtain any information she desired through whatever process she desired, that she elected to waive any further itemization, enumeration, or further disclosures, including the trusts at issue. Wife had the opportunity to use such methodology of discovery to uncover the contents and value of the trusts, or elected not to do so at that time. Wife further acknowledged in paragraph 32 that the property settlement agreement:

is not the result of any fraud, coercion, duress, undue influence or collusion, nor induced by any improper or illegal means whatsoever.

Appellant wife cannot now, nearly ten (10) years after the fact, complain that her oversight and failure to fully investigate the contents and value of the trusts qualifies as clear and convincing proof or fraud or misrepresentation and warrants that the property settlement agreement should be voided.

Furthermore, wife has not provided, and is likely unable to provide any clear or convincing evidence, aside from her word, that said trusts contained any of the properties or items listed in her petition, and that any of those items were, in fact, marital property. Lastly, beyond bald allegations and mere speculation, wife has not, beyond any reason of doubt, proven that Mr. Ottaviano, outside of setting up these trusts, played any role in the alleged plot to misrepresent appellee husband’s assets.

However, as outlined above, even if there is no clear and convincing proof of fraud or misrepresentation, a court may find that a party is not bound by a contractual provision if the court deems that provision to be unconscionable, or, “that the contractual terms are unreasonably favorable to the drafter” and that there [was] no meaningful choice on the part of the other party regarding acceptance of the provisions.’” Colonna v. Colonna, 791 A.2d at 357, citing Todd Heller Inc. v. United Parcel Service Inc., 754 A.2d at 701. This court finds that the standard of unconscionability, in the case at hand, is impossible to meet, because both parties, with the assistance of counsel, drafted the property settlement agreement. As such, it would be impossible for the terms to unreasonably favor the drafter. Furthermore, as outlined above, appellant wife made a meaningful, and deliberate choice regarding of acceptance of provisions. Not only did counsel represent appellant wife throughout the negotiation, drafting, and signing of the document, but paragraph 32 of the property settlement agreement specifically acknowledges:

that this Agreement is, under the circumstances, fair and equitable, that it is being entered into freely and voluntarily.

Accordingly, because the parties were of equal bargaining power, and appellant wife meaningfully chose to accept the provisions of the property settlement agreement, there and be no finding of unconscionability. Furthermore, appellant wife, with the assistance of counsel, later amended the property separation agreement six (6) separate times without once complaining that the agreement was unfair or unconscionable. The sixth addendum specifically states:

WFEEREAS, the parties have agreed to settled the two remaining issues. One, being the cash owed second, the proceeds of the sale of the Howarth Property.
WHEREAS, the parties have agreed to settled both in the amount of (Sixty Thousand dollars) $60,000.00.

Therefore, because appellant wife had ample opportunity, with assistance of counsel, to investigate the true contents and value of the trusts at issue, and has not shown any evidence that any of the items listed in her petition are held in those trusts, are even marital property, or that Mr. Ottaviano improperly assisted appellee husband in creating or administrating said trusts, appellant wife has failed to adequately meet her burden of providing clear and convincing evidence of fraud or misrepresentation. Furthermore, because both parties were of equal bargaining power, and wife willfully and knowingly entered into, and meaningfully chose to accept the provisions of the property settlement agreement, there can be no finding that the agreement is unconscionable. Therefore, this court determines that the presumption of full and fair disclosure stands, and the property settlement agreement of January 24, 2003 must remain in place.

The third issue complained of on appeal is that, the court erred in sustaining husband’s preliminaiy objections since wife stated a cause of action for recovery of funds still due to her under the property settlement agreement with the adequacy and specificity required to overcome a preliminary objection related thereto. This is simply not the case. Wife has not stated any claim with particularity. Wife merely claims that she is owed money, “in excess of twenty thousand dollars ($20,000.00).” However, aside from a generic dollar amount, wife has failed to show more specifically how much she is owed, and most importantly, appellant wife has not made this court aware, in her petition or otherwise, of why appellee husband still owes her money. She has not referenced a provision that appellee has not complied with, nor has she alleged what financial obligation appellee has failed to meet. Therefore, for the reasons set forth above, wife has not stated a claim upon which relief can be granted.

In conclusion, this court finds that this agreement is not unconscionable because appellant wife has failed to show that both parties were not of equal bargaining power. Furthermore, we find that appellee husband made a full and fair disclosure of his financial position at the time the agreement was executed. We further find that appellant wife has failed to present any evidence of fraudulent misrepresentation on the part of appellee husband. As such, we are compelled to uphold the agreement under Pennsylvania law.

Therefore, this court did not err in determining that appellee husband’s preliminary objections were sustained and that appellant wife’s petition to set aside the property settlement agreement and open equitable distribution was denied and dismissed. Since this court has denied and dismissed the petitions and sustained the preliminary objections, the trial date of April 3, 2013 was properly cancelled.

CONCLUSION:

For all of the foregoing reasons, the trial court’s order of March 26, 2013 should be affirmed.

      . See property separation agreement ¶12, pages 8-9

      . A review of the property settlement agreement reveals that wife was aware of the existence of the trusts and the contents thereof, at the signing of the initial PSA, and every addendum thereafter

      . This court notes that the property separation agreement, ¶12, pages 8-9, specifically lists the contents of each trust.