author: COX, J.,

text:
    Pavelko v. Unitrin Direct Auto Insurance
    C.P. of Lawrence County,
    No. 11190 of 2012

      Daniel I. Herman, for plaintiff.

      Joseph A. Hudock, Jr., for defendant.
    June 12, 2014
   COX, J.,

Before the court for disposition are the preliminary objections filed on behalf of the defendant Unitrin Direct Auto Insurance a/k/a Unitrin Direct Property and Casualty Company, which argue the plaintiff’s amended complaint is legally insufficient as an insurance provider does not have a duty to adjust the amount of medical expenses due in order to postpone the exhaustion of first party benefits nor is the insurance provider required to pay medical bills according to the fee schedule amount as provided in 75 Pa.C.S.A. § 1797.

The plaintiff Valerie Pavelko maintained an automobile insurance policy with the defendant when she was involved in a motor vehicle collision on October 16,2008, in which she sustained injuries. She received treatment at Jameson Memorial Hospital on October 17, 2008, for her injuries in the amount of $2,956.25. The plaintiff also received a bill from Jameson Memorial Hospital in the amount of $515.00 on October 22, 2008, and another bill in the amount of $170.00 on November 1, 2008. The plaintiff received bills from Penn Imaging Associates, P.C., on October 17, 2008, in the amounts of $105.00, $117.00 and $160.00. On November 1, 2008, the plaintiff received another bill from Penn imaging Associates in the amount of $30.00. University of Pittsburgh Medical Center Emergency Medicine billed the plaintiff in the amount of $330.00. She also received bills from Dr. Paul Sung in the amounts of $100.00 and $80.00. The defendant paid all of these bills in full without re-pricing. It must be noted that the total amounts paid, according to the amended complaint, are $4,563.25, which is less than $5,000.00, but the plaintiff asserts that her policy limit has been exhausted. As a result, the plaintiff currently owes money for unpaid medical bills, which she claims could have been paid by her first party benefits if the defendant would have adjusted the amounts owed instead of paying 100 percent of the amount due. The plaintiff contends that the defendant’s failure to re-price the amounts of medical expenses was in violation of the Motor Vehicle Financial Responsibility Law and is in breach of the insurance contract.

The defendant contends that the amended complaint is legally insufficient as an insurance provider is not required to re-price the amount of medical expenses due in order to postpone the exhaustion of first party benefits nor is the insurance provider required to pay medical bills according to the fee schedule amount as provided in 75 Pa.C.S.A. § 1797.

“A preliminary objection in the nature of a demurrer is properly granted where the contested pleading is legally insufficient.” Cooper v. Frankford Health Care System, Inc., 960 A.2d 134, 143 (Pa. Super. 2008) (citing Cardenas v. Schober, 783 A.2d 317, 321 (Pa. Super. 2001)). A demurrer must be resolved based solely on the pleadings, no testimony or evidence outside of the complaint may be considered to dispose of the legal issue presented. Id. “All material facts set forth in the pleading and all inferences reasonably deducible therefrom must be admitted as true.” Hess v. Fox Rothschild, LLP, 925 A.2d 798, 805 (Pa. Super. 2007) (citing Cardenas, supra.). A demurrer will only be sustained in cases where the complaint fails to set forth a valid cause of action. Lerner v. Lerner, 954 A.2d 1229, 1235 (Pa. Super. 2008) (citing McArdle v. Tronetti, 426 Pa. Super. 607, 627 A.2d 1219, 1221 (1993)). If a doubt exists regarding whether a demurrer should be sustained, the doubt must be resolved in favor of overruling the demurrer. R.W. v. Manzek, 585 Pa. 335, 351, 888 A.2d 740, 749 (2005) (citations omitted). Fact-based defenses are irrelevant when ruling on a preliminary objection in the nature of a demurrer. Werner v. Plater-Zyberk, 799 A.2d 776, 783 (Pa. Super. 2002) (citing Orner v. Mallick, 515 Pa. 132, 135, 527 A.2d 521, 523 (1987)). “A ‘speaking demurrer’ is defined as ‘one which, in order to sustain itself, requires the aid of a fact not appearing on the face of the pleading objected, or in other words, which alleges or assumes the existence of a fact not already pleaded, and which constitutes the ground of objection and is condemned both by the common law and the code system of the pleading.’” Regal Indus. Corp. v. Crum and Forster, Inc., 890 A.2d 395, 398 (Pa. Super. 2005) (quoting Black’s Law Dictionary 299 (6th ed. 1991)). The court is not permitted to consider a speaking demurrer in rendering its decision on preliminary objections. Id.

The plaintiff avers in her amended complaint that 75 Pa.C.S.A. § 1797(a) requires that an insurance provider re-price the amounts owed for medical bills to delay the exhaustion of the insured’s first party benefits. That statute sets forth:

(a) General rule. — A person or institution providing treatment, accommodations, products or services to an injured person for an injury covered by liability or uninsured and underinsured benefits or first party medical benefits, including extraordinary medical benefits, for a motor vehicle described in Subchapter B (relating to motor vehicle liability insurance first party benefits) shall not require, request or accept payment for the treatment, accommodations, products or services in excess of 110% of the prevailing charge at the 75th percentile; 110% of the applicable fee schedule, the recommended fee or the inflation index charge; or 110% of the diagnostic-related groups (DRG) payment; whichever pertains to the specialty service involved, determined to be applicable in this Commonwealth under the Medicare program for comparable services at the time the services were rendered, or the provider’s usual and customary charge, whichever is less. The General Assembly finds that the reimbursement allowances applicable in the Commonwealth under the Medicare program are an appropriate basis to calculate payment for treatments, accommodations, products or services for injuries covered by liability or uninsured and underinsured benefits or first party medical benefits insurance. Future changes or additions to Medicare allowances are applicable under this section. If the commissioner determines that an allowance under the Medicare program is not reasonable, he may adopt a different allowance by regulation, which allowance shall be applied against the percentage limitation in this subsection. If a prevailing charge, fee schedule, recommended fee, inflation index charge or DRG payment has not been calculated under the Medicare program for a particular treatment, accommodation, product or service, the amount of the payment may not exceed 80% of the provider’s usual and customary charge. If acute care is provided in an acute care facility to a patient with an immediately life-threatening or urgent injury by a Level I or Level II trauma center accredited by the Pennsylvania Trauma Systems Foundation under the act of July 3,1985 (P.L. 164, No. 45), known as the Emergency Medical Services Act, or to a major bum injury patient by a bum facility which meets all the service standards of the American Bum Association, the amount of payment may not exceed the usual and customary charge. Providers subject to this section may not bill the insured directly but must bill the insurer for a determination of the amount payable. The provider shall not bill or otherwise attempt to collect from the insured the difference between the provider’s full charge and the amount paid by the insurer, (emphasis added).

The intent of the General Assembly in enacting 75 Pa.C. S. A. § 1797(a) was to reduce the cost of purchasing motor vehicle insurance by decreasing insurance premiums by utilizing medical cost containment provisions. Pittsburgh Neurosurgery Associates. Inc. v. Danner, 733 A.2d 1279, 1282 (Pa. Super. 1999) (citing Motorists Ins. Companies v. Emiq, 444 Pa. Super. 524, 664 A.2d 559, 566 (1995)). That statute applies to treatment for injuries covered by liability benefits. Id., 733 A.2d at 1283. “Section 1797(a) refers to liability, uninsured, underinsured and first party medical benefits, all of which are types of automobile insurance.” Id. The Pittsburgh Neurosurgery Associates Court determined that the cost containment provisions in 75 Pa.C.S.A. § 1797(a) apply to medical bills remaining after an injured party’s first party benefits have been exhausted and the injured party is seeking to recover from a third party’s liability insurance. Id., 733 A.2d at 1284. It must be noted that the cost containment provisions were still applicable during the period in which the injured party was awaiting a verdict or a settlement from the third party. id. The court reasoned that this would lessen the costs of insurance premiums as any jury verdict would be molded by the trial court to reflect the cost containment making the judgment replicate the actual cost of the injured party’s medical bills, if the tortfeasor is found liable. Id. 733 A.2d at 1285. “Thus, by limiting the amount of damages an injured party can receive after a jury verdict in his or her favor, the verdict will be lower and insurance costs will be reduced, in accordance with our legislature’s objective in drafting § 1797.” Id. The court again reiterated, “In enacting § 1797 our legislature sought to reduce insurance premiums by capping medical costs.” Id.

In Houston v. Southeastern Pennsylvania Transportation Authority, 19 A.3d 6 (Pa. Cmwlth. 2011), the court held that an insurer is required to comply with the cost containment provisions of 75 Pa.C.S.A. § 1797 when calculating payment of personal injury protection benefits on behalf of eligible claimants. In that case, the appellant is a regional transportation authority which qualifies as a self-insurer. The appellant was required to provide personal injury protection benefits (hereinafter “PIP benefits”) in the amount of $5,000 to eligible claimants who are injured as a result of motor vehicle accidents involving the appellant. The appellees were injured when they were riding on a bus operated by the appellant which collided with another vehicle. As a result of the accident, the appellees received medical treatment and they both lacked their own insurance, which prompted the medical providers to send the medical bills directly to the appellant. One appellee’s medical bills totaled $6,864 and the other appellee’s medical bills totaled $5,800. The appellant paid $5,000 for each of the appellees without adjusting the medical bills. The appellees filed a class action suit claiming that the appellant was required to make PIP benefit payments in accordance with 75 Pa.C.S.A. § 1797(a), which is a cost containment provision requiring insurers to adjust medical providers’ bills and pay medical expenses at no more than 110 percent of the allowances applicable under the Medicare program. The appellees argued if the appellant had paid their medical bills as prescribed in Section 1797(a) it would have paid a higher percentage of their total medical bills, which would have lessened their out-of-pocket expenses. The appellees filed various motions, including a motion for partial summary judgment on the issue of liability. The appellant filed a cross-motion for summary judgment claiming that, as a self-insurer, it was not subject to Section 1797(a). The trial court granted the appellees’ motion for partial summary judgment concerning liability and declared that the appellant was required to render payment for medical bills in accordance with Section 1797(a). The trial court also denied the appellant’s cross-motion for summary judgment. The appellant then filed its appeal with the Commonwealth Court of Pennsylvania raising several alleged errors of the trial court, which included that the trial court erred in determining the appellees were personally aggrieved by the appellant’s overpayment to medical providers and they had standing to maintain an action. The appellant also asserted that the trial court erred in determining that the appellant was required to calculate the payment of PIP benefits in accordance with Section 1797(a).

Initially, the Houston Court addressed the appellant’s argument that the appellees lacked standing as they settled their personal injury claims against the appellant for $12,500 and $10,000 respectively. The court considered the amount of unpaid medical bills and any possible financial windfall that may occur by allowing the appellees to recover for the appellant’s failure to pay the PIP benefits in accordance with Section 1797(a) as they have already been reimbursed for those expenses. The court noted the settlement release contained the provision that the appellant was released from liability for everything except the failure to pay proper PIP benefits, which indicates that any damages concerning the proper payment of PIP benefits were not included in the settlement. Id., 19 A.3d at 11. The appellant also asserted that the appellees lacked standing as they failed to demonstrate that they were personally harmed or adversely affected by the manner in which the appellant paid PIP benefits. The Houston Court ruled that the appellees were personally aggrieved by the appellant’s actions as it paid the unadjusted medical benefits and capped the appellees’ medical benefits at $5,000, which caused the appellees to incur out-of-pocket medical expenses that would have been paid directly by the appellant if it followed the cost containment provisions in Section 1797(a). Id., 19 A.3d at 11-12. Thus, the court determined that the appellees had standing to maintain that cause of action. Id., 19 A.3d at 12.

In Houston, the appellant also contended that the trial court erred in declaring that it must comply with Section 1797(a) when calculating PIP benefits to be paid on behalf of eligible claimants. First, the court noted that the Motor Vehicle Financial Responsibility Law is to be liberally construed to provide the greatest possible coverage to injured claimants and close cases should be resolved in favor of coverage for the insured. Id., 19 A.3d at 14 (citing Sturkie v. Erie Insurance Group, 407 Pa. Super. 117, 595 A.2d 152 (1991); Motley v. State Farm, 502 Pa. 335, 466 A.2d 609 (1983); 1 Pa.C.S.A. § 1928(c)). The appellant’s inteipretation of the statute was inapposite to the intent of the general assembly, which stated, “the general assembly finds that the reimbursement allowances applicable in the Commonwealth under the Medicare program are appropriate basis to calculate payment for treatments, accommodations, products or services for injuries covered by liability or uninsured and underinsured benefits or first party medical benefits insurance.” Id., 19 A.3d at 14 (quoting 75 Pa.C.S.A. § 1797(a)). Utilizing that rationale, the Houston Court determined that that appellant was required to render PIP benefits in accordance with Section 1797(a). Id.

In the case sub judice, the plaintiff, who maintained an automobile insurance policy with the defendant, was injured in a motor vehicle collision on October 16, 2008. The insurance policy included coverage for first party medical benefits with a limit of $5,000. She received various medical treatments from several medical service providers, which, according to the amended complaint, exceeded the amount of the policy limit. The defendant paid 100 percent of the medical bills until the policy limit was reached, but it failed to adjust the amount that it paid in accordance with 75 Pa.C.S.A. § 1797(a). As a result, the policy was exhausted, which made it necessary for the plaintiff to pay the remaining medical bills out-of-pocket.

This situation is analogous to the Houston case, in which the appellant paid 100 percent of the appellees’ medical bills up to the $5,000 PIP benefit policy limit without adjusting the amount due in accordance with Section 1797(a). The Houston Court maintained that the trial court correctly ruled that cost containment provisions of Section 1797(a) mandated that insurers adjust the amount due to medical providers when paying benefits on behalf of an insured to limit the amount of out-of-pocket expenses to be paid by the appellees. Similarly, the defendant in the current matter paid the plaintiff’s medical bills up to the first party benefits limit; however, it failed to adjust the medical bills in accordance with the cost containment provisions of Section 1797(a). This caused there to be excess medical bills to be paid by the plaintiff, which increased her out-of-pocket expenses. In accordance with the decision in Houston, the plaintiff has filed a legally sufficient claim based upon the defendant’s failure to adjust the amount paid for the plaintiff’s medical bills, which increased her out-of-pocket expenses. Furthermore, Section 1797(a) mandates, “Providers subject to this section may not bill the insured directly but must bill the insurer for a determination of the amount payable (emphasis added). That portion of the statute indicates that an insurer is required to adjust the amount due for medical bills it pays on behalf of an insured. Therefore, the defendant’s preliminary objections are overruled as it had a duty to pay the plaintiff’s medical bills at a reduced rate in accordance with Section 1797(a).

Additionally, the court feels compelled to address several of the phrases and characterizations employed by plaintiff’s counsel Daniel I. Herman, Esquire, in the pleadings and his brief contained within the current record. In the amended complaint, plaintiff’s counsel referred to opposing counsel stating, “For some reason, either due to stupidity, sloth, or mendacity, counsel for the defendant and/or the defendant fails to accept the current state of the law and the established practice...” Plaintiff’s counsel further asserts, “As the defendant, due to stupidity, sloth, mendacity, ignorance or disregard for Act 6...did not reprice any of these amounts, even though they are required to under the Motor Vehicle Financial Responsibility Law, the plaintiff’s first party benefits were quickly exhausted.” This language continues in the plaintiff’s brief in opposition to defendant’s preliminary objections which in the first sentence states, “it is unusual for a defendant to be so completely, pillory, and incredibly wrong that in the case at bar the defendant, through its preliminary objections, represents either a lack of understanding of the Motor Vehicle Responsibility Law...or is in the alternative being completely disingenuous with the court.” Again, plaintiff refers to the defendant or defense counsel as being disingenuous by writing, “the defendant yet again filed what the plaintiff feels are extremely disingenuous and frivolous preliminary objections.” Plaintiff’s counsel also explained, “The defendant’s preliminary objections are frivolous and flummery...” It is important to emphasize that there was a legitimate basis for filing preliminary objections as neither party was able to provide the court with case law concerning the issue presented, which indicates that the defendant’s argument was not against the weight of the authority. Hence, the defendant presented a question of law that needed to be decided by the court and defense counsel was merely asserting an argument on behalf of his client.

These harsh and unnecessary statements are in violation of sections 1 through 3, 5 and 6 of the Code of Civility. Plaintiff’s counsel failed to treat the defendant and defendant’s counsel in a civil, professional and courteous manner. In addition, those averments were disrespectful and diminished the dignity and decorum of the courtroom, plaintiff’s counsel repeatedly and continuously utilized disparaging remarks and made personal attacks upon opposing counsel and the defendant without any apparent provocation. It is incumbent upon plaintiff’s counsel to refrain from that type of behavior and to advocate for his client in an appropriate and professional manner. This court expresses its disappointment with plaintiff’s counsel for this tactic. The court is well acquainted with plaintiff’s counsel, including being on opposite sides in criminal homicide trials. The use of such language demeans plaintiff’s counsel’s fine legal ability and advocacy skills. The court expects that counsel will abstain from such tactics in the future.

For the reasons set forth in this opinion, the defendant’s preliminary objections are overruled.

ORDER OF COURT

Now this 12th day of June, 2014, this case being before the court on April 28, 2014, for oral argument on the preliminary objections filed by the defendant, with both parties appearing through counsel, the plaintiff Valerie Pavelko, represented through counsel, Daniel I. Herman, Esquire and the defendant Unitrin Direct Auto Insurance a/k/a Unitrin Direct Property and Casualty Company, represented through counsel, Joseph A. Hudock, Jr., Esquire and after consideration of the arguments and briefs presented and submitted by counsel and a complete and thorough review of the applicable record, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

1. In accordance with the attached opinion, the preliminary obj ections filed by the defendant are overruled.

2. The defendant shall file a written answer within twenty (20) days after notice of this order of court.

3. The prothonotary is directed to serve a copy of this order of court and opinion upon counsel of record, Daniel I. Herman, Esquire and Joseph A. Hudock, Jr., Esquire.

      . At the current time, the defendant does not appear to be contesting the fact that the plaintiff’s first party benefits have been exhausted.


source: Caselaw Access Project

author: MINORA, J.,

license: Public Domain

text:
    Menard v. PennyMac Loan Services, LLC

      C.P. of Lackawanna County,
    No. 2010-CV-8730

      Jeffrey W. Nepa, for plaintiffs.

      Edward W. Chang, for defendants.

      June 27, 2014
   MINORA, J.,

Before the court is PennyMac Loan Services, LLC and PNMac Mortgage Co., LLC’s (hereinafter “defendants”) joint motion to consolidate the quiet title action 2010-CV-8730 and mortgage foreclosure action 2009-CV-5465 regarding the property situated at 113 Macarby Lane, Clarks Summit, Lackawanna County Pennsylvania, 18411 (hereinafter “113 Macarby Lane”). For the reasons discussed below, defendants’ motion for consolidation is granted.

FACTUAL AND PROCEDURAL SUMMARY

Plaintiff Mr. Menard by himself alone signed the note for the property at 113 Macarby Lane on August 10, 2004, evidencing a loan from eHome Credit Corp. and both plaintiffs signed the mortgage, dated August 10, 2004, which secured the loan from eHome Credit Corp. See See Menard v. PennyMac Loan Services, LLC, PNMAC Mortgage Co. LLC, Citimortgage, Inc., Archbay Holdings. LLC. Series 2009A, eHome Credit Corp., memorandum and order, 2010-CV-8730 (Minora, J.) (Oct. 3, 2013) (hereinafter “Memorandum and Order, 2010-CV-8730 (Oct. 3, 2013)”). The mortgage was recorded in the Lackawanna County Recorder of Deeds Office on August 19, 2004 as Instrument Number 200432076 (the.”mortgage”). Id. at 2.

Defendants brought an action in mortgage foreclosure regarding the property on August 24, 2009 under docket number 2009-CV-5465. An amended complaint in mortgage foreclosure was filed August 24, 2010. The mortgage for the property at 113 Macarby Lane was assigned on various occasions.

On December 10, 2010, plaintiffs Toni and Jeffery Menard (“plaintiffs”) sought to quiet title as to defendants’ interest in the lien in this property that was created by the mortgage between plaintiffs, as mortgagors, and eHome Credit Corp., as mortgagees. The quiet title action, filed under docket number 2010-CV-8730, was based on the Menards’ claim that there was an alleged error in the chain of title in one of the assignments of the mortgage to a mortgagee. See N.T. Citimortgage, LLC v. Menard, 2009-CV-5465; Menard v. PennvMac Loan Services LLC, et al., 2010-CV-8730, 3/5/2014 at 7-8. Specifically, the Menards claimed a statement made in an affidavit of lost assignment was not sufficient for assignment. See N.T. 3/5/2014 at 7-8.

On March 15, 2013, defendants PennyMac Loan Services, LLC and PNMAC Mortgage Co., LLC brought a motion for summary judgment in the Menards’ quiet title action, arguing that defendants-mortgagees were entitled to enforce the mortgage. See defendants’ motion for summary judgment, 2013-CV-8730 (Mar. 15,2013). In this honorable court’s opinion and order regarding defendants’ motion for summary judgment, we determined that the proper holder of the mortgage and note was PennyMac Loan Services, LLC and PNMAC Mortgage Co. LLC. See Memorandum and Order, 2010-CV-8730 (Oct. 3, 2013). We also held that because both plaintiffs signed the mortgage and effectively admitted that the mortgage is in default, the real property can be foreclosed upon, Id. at 8-9. In that Memorandum and Order, this honorable court found that defendant is the proper holder of the note secured by the mortgage and has standing to foreclose upon the mortgage, regardless of whether or not a written assignment of the mortgage had been undertaken. Id. at 8.

Defendants’ motion for summary judgment was therefore granted, although as to liability only. Id. at 9. The parties still remain in dispute as to the true balance of monies due and owing. Id. at 10.

Plaintiffs the Menards appealed the order granting defendants’ motion for summary judgment, and the Pennsylvania Superior Court quashed the appeal. See appeal of Oct. 3,2013 order re: Menard v. PennvMac Loan Services, LLC, et al. 2010-CV-8730/Citimortgage, Inc. v. Menard, 2009-CV-5465 (Pa. Super.) (Oct. 28, 2013); Menard v. PennyMac Loan Services, LLC, et al., order per curiam, 2010-CV-8730/1964 MD 2013 (Pa. Super. 2014).

Defendants PennyMac Loan Services, LLC and PNMAC Mortgage Co. LLC now seek to consolidate the foreclosure and quiet title actions to properly determine the extent of “monies due and owing” on the subject loan. Defendants’ joint motion to consolidate was filed December 31, 2013. Plaintiff’s answer to the motion for consolidation was filed February 24, 2014. Oral argument on the motion was held March 4,2014. The matter is now ripe for disposition.

LEGAL ARGUMENT OF THE PARTIES

Defendant’s Argument

The quiet title and foreclosure actions should be consolidated pursuant to Pa.R.C.P. 213. It would be a waste of judicial resources and could lead to inconsistent results if the matters are not consolidated. The actions involve the same legal and factual issues arising out of the rights of the parties under a mortgage granted by the Menards on the property at 113 Macarby Lane. Moreover, the court even signaled the matters are ripe for consolidation. It listed both matters in the caption of its order and discussed the merits of defendants’ right to enforce the note and mortgage therein.

Plaintiff’s Argument

Defendants’ motion to consolidate the mortgage foreclosure and quiet title actions should be denied. The legal and factual issues in the causes of action are not the same. The subject matter of the action to quiet title pertains to the defendant’s right and interest in the subject property as allegedly conveyed by way of affidavit of assignment. Moreover, the mortgage foreclosure action involves those issues which may or may not exist in the underlying documents in which the plaintiffs are seeking to ultimately obtain title in the subject property. Therefore, the cases should not be consolidated.

LEGAL STANDARD

Pa.R.C.P. 213 governs the consolidation of actions. Subsection (a) of that rule provides:

(a) In actions pending in a county which involve a common question of law or fact or which arise from the same transaction or occurrence, the court on its own motion or on the motion of any party may order a joint hearing or trial of any matter in issue in the actions, may order the actions consolidated, and may make orders that avoid unnecessary cost or delay.

Swift v. Radnor Tp., 983 A.2d 227 (Pa. Cmwlth. Oct. 14, 2009); Cruz v. Roberts, 2005 WL 4875762 (Pa. Com. Pl. June 22, 2005); Fraynert v. Delaware and Hudson Ry. Co., Inc., 2012 WL 6929343 (Pa. Com. Pl. Oct. 1, 2012).

Where there is a “complete consolidation” of separate actions under Rule 213(a), the multiple suits lose their separate identity and are combined into a single proceeding in which one judgment is rendered. Fraynert v. Delaware and Hudson Ry. Co., Inc., 2012 WL 6929343 (Pa. Com. PI. Oct. 12, 2012) (internal citation omitted). For that reason, complete consolidation is appropriate only in actions involving the same parties, subject matter, issues, and defenses. Fraynert, 2012 WL 6929343 (internal citations omitted).

The decision of whether to consolidate actions is permissive and rests entirely within the discretion of the trial court. Fraynert, 2012 WL 6929343, supra (citing Corbett v. Weisband, 280 Pa. Super. 292, 316, 551 A.2d 1059, 1071 (1988), app. denied, 524 Pa. 607, 569 A.2d 1367 (1989); Roznowski v. Pennsylvania Nat. Mut. Cas, Ins. Co., 343 Pa. Super. 7,12, 493 A.2d 775, 777 (1985); Cruz, 2005 WL 4875762, supra. In order for actions to be consolidated for a joint trial, they must involve a common question of law or fact. See Pa.R.C.P. 213(a); Cruz, 2005 WL 4875762, supra (emphasis added). Identity of two causes of action may be determined by considering the similarity in the acts complained of and the demand for recovery, as well as the identity of the witnesses, documents and facts alleged and whether the same evidence is necessary to prove each action. Swift, 983 A.2d 227, supra.

Other relevant factors that warrant the joinder of separate actions for trial are avoidance of multiple trials, reduction of duplicative expenses, and promotion of judicial economy. Fraynert, 2012 WL 6929343, supra. Consolidation is allowed in order to avoid “multiple trials and proceedings involving common facts or issues arising from the same transaction or occurrence.” Pa.R.C.P. 213 Explanatory Comment. “The duplication of efforts is a benefit to both the parties and the courts.” Id. Other benefits include “the prevention of inconsistent verdicts ... the elimination of trial delays, speedier litigation, and the reduction of expenses for the parties.” Cruz, 2005 WL 4875762, supra-, 3 Standard Pa. Practice Section 19.17.

The consolidation of actions into a single action is improper where such consolidation prejudices the rights of one or more of the parties . . . [or] where the facts of one case might prejudice the jury against the defendants in a related case . . . [even if] the commonality of law or fact questions otherwise abounds.” Fraynert, 2012 WL 6929343; Cruz at *79 (citing 3 Standard Pa. Practice 2d Section 19.5). Similarly, courts should exercise their discretion cautiously where jury confusion could result from joining divergent factual scenarios. Cruz, 2005 WL 4875762, supra (citing 3 Standard Pa. Practice 2d Section 19.6; Motorists Mutual Insurance Co. v. Miller, 41 Pa. D. & C.3d 630, 631 (1986)).

It is appropriate to refuse consolidation of separate actions where the jury may be influenced by sympathy for a plaintiff to the prejudice of the defendants. Cruz, 2005 WL 4875762, supra (internal citations omitted). “The court may [also] refuse consolidation where the common question of law or fact is not of sufficient significance in the various actions to justify their being combined or where the consolidation might...result in over-complication of issues.” Fraynert, 2012 WL 6929343 (citing Limbert v. Sealview Plastics Inc., 17 Pa. D. & C. 2d 785, 786 (1959) (quoting 2 Anderson Pa. Civ. Prac. Section 69)).

LEGAL ANALYSIS

Courts in Pennsylvania have previously consolidated cases regarding mortgage foreclosure, ejectment, quiet title, and related property disputes. See Fusco v. Hill Financial Sav. Ass’n, 453 Pa. Super. 216, 683 A.2d 677 (Sept. 30, 1996) (petition to open/strike judgment consolidated with quiet title action); Sandmann v. Old Delancey Bldg. & Loan Ass’n, 184 Pa. Super. 470, 135 A.2d 819 (Pa. Super. 1957) (action to quiet title was consolidated with action to foreclose mortgage); Swift, 983 A.2d 227, supra (Pa. Cmwlth. 2009) (the court consolidated actions when the parties, counsel, factual and legal issues, relief sought, and the property involved were the same in the actions, and the record and a prior decision in the matter indicated the same).

After review of the record, oral argument on defendants ’ motion to consolidate, and our October 2013 decision granting defendants’ motion for summary judgment to enforce the terms of the mortgage, it is evident that the parties, counsel, factual and legal issues, relief sought and property involved in the mortgage foreclosure and quiet title actions are the same. See Swift, 983 A.2d 227 supra; Cruz, 2005 WL 4875762, supra.

The Matters Should Be Consolidated Because the Factual and Legal Issues in the Quiet Title and Mortgage Foreclosure Actions are the Same

For actions to be consolidated for a joint trial, they must involve a common question of law or fact. See Pa.R.C.P. 213(a); Cruz, 2005 WL 4875762, supra. However, “[t]he court may refuse consolidation where the common question of law or fact is not of sufficient significance in the various actions to justify their being combined.” See Fraynert, 2012 WL 6929343, supra. In the present matters, the commonality of factual and legal issues are of sufficient significance such that the cases should be consolidated.

At oral argument for defendants’ motion to consolidate the actions, attorney Jeffery Nepa, counsel for the Menards, argued that the quiet title action was distinct from the mortgage foreclosure action because “whether or not the affidavit [of lost assignment] was a valid creation of an interest in property by way of that affidavit under the foreclosure” was at issue in the quiet title action. See N.T. 16:9-17. Attorney Nepa also argued that the matters should not be consolidated because “[tjhere is a... myriad of issues that exist in a foreclosure action that don’t in a quiet title.” See N.T. at 19:8-10. We disagree with Attorney Nepa’s arguments.

As for the affidavit of lost assignment issue from the Menards’ action to quiet title, the court has already decided this issue when it acknowledged that the assignee-mortgagee was a proper party from that affidavit of lost assignment. See N.T. 3/5/2014 at 8:23-24; 16:9-16; and 20:19-20; see also Memorandum and Order, 2010-CV-8730, at 6 (Oct. 3, 2013) (unrecorded assignment does not render assignment invalid) (citation omitted). As for the claim that there are differences between the two cases, plaintiff has failed describe which other issues exist in the foreclosure action that do not exist in the quiet title action. See generally N.T. (Mar. 4, 2014); answer to defendants’ motion to consolidate, 2010-CV-8730/2009-CV-5465 (Feb. 24, 2014).

Completely contrary to plaintiff’s argument, the two cases regard the “exact same factual and legal issues; the exact same parties over the exact same dispute.” See N.T. 3/5/2014 at 3. The issue in both cases is that because the Menards defaulted on their mortgage for the property at 113 Macarby Lane, and defendants are the proper parties that may exercise their rights to foreclose on the property, there remains only an amount due and owing on the mortgage that has yet to be determined. When this honorable court granted PennyMac’s “motion for summary judgment in connection with the quiet title action regarding [PennyMac’s] abilities to enforce the terms of the mortgage,” it concluded that “[tjhere is nothing outstanding in the quiet title action” other than to determine “the monies that are due and owing between the parties, specifically by the Menards to PennyMac if...they have liability for quiet title purposes.” See N.T. 3/5/2014 at 19:14-18; 15:7-8.

Therefore, consolidating the actions would not result in “joining divergent factual scenarios” or “over-complication of issues” which would render consolidation inappropriate (emphasis added). Cruz, 2005 WL 4875762, supra (internal citations omitted); Fraynert, 2012 WL 6929343, supra (internal citations omitted). Instead, it would make for efficient case resolution, and will be beneficial to the parties, further discussed below.

The Matters Should be Consolidated Because the Parties Would Not Be Prejudiced By Consolidation

The consolidation of actions into a single action is improper where such consolidation prejudices the rights of one or more of the parties...[or] where the facts of one case might prejudice the jury against the defendants in a related case...[even if] the commonality of law or fact questions otherwise abounds.” Fraynert, 2012 WL 6929343, supra; Cruz, 2005 WL 4875762 at *79 (citing 3 Standard Pa. Practice 2d Section 19.5). In the matters before us, consolidation of the actions would not prejudice the rights of any of the parties or prejudice the jury against defendants and in sympathy for a plaintiff in a related case. See Cruz, 2005 WL 4875762, supra (internal citations omitted).This is so because the parties in both actions are the same and the cases regard the exact same dispute.

We note that the original captions to the two actions include multiple parties, some of which who were not originally parties in both actions. However, now, in both cases, only three parties remain: PennyMac Loan Services, LLC, PNMAC Mortgage Co., LLC, and the Menards. These parties left have the exact same interest in both the quiet title and mortgage foreclosure case regarding the same dispute, that dispute being the monies noted as due and owing from the Menards to defendants on the mortgage. See Order, 2010-CV-8730 at 8-9 (Oct. 3,2013). If the matters are consolidated, the Menards still have the right to cure under the mortgage foreclosure any default that is deemed to exist by the court. See N.T. 3/5/2014 at 13-15. Since there is nothing outstanding in the quiet title action, the Menards “can exhaust their rights and remedies under the foreclosure action” which regards “the same people, same real estate, and their hold in rem.” See N.T. 3/5/2014 at 15:1-15. In addition, the attorneys for the parties in both actions are the same. No parties would be prejudiced by consolidation.

The Cases Should be Consolidated for Efficiency Purposes

Consolidation is allowed in order to avoid “multiple trials and proceedings involving common facts or issues arising from the same transaction or occurrence.” Pa.R.C .P. 213 Explanatory Comment. Other benefits include “the prevention of inconsistent verdicts ... the elimination of trial delays, speedier litigation, and the reduction of expenses for the parties.” Cruz, 2005 WL 4875762, supra; 3 Standard Pa. Practice Section 19.17. In the present matter, consolidating the actions would result in more efficient case resolution for the parties and the courts. See Pa.R.C.P. 213 Explanatory Comment; this opinion at p.6. This honorable court, as well as the parties, have signaled that consolidation would lead to such resolution.

In this court’s October 3,2013 order granting PennyMac Loan Services LLC and PNMAC Mortgage Co. LLC’s motion for summary judgment as to liability, this honorable court found the issues in both actions to be factually and legally overlapping. See generally Memorandum and Order, 2010-CV-8730 (Minora, J.) (Oct. 3, 2013). We included in our caption for that order the docket numbers for both the quiet title and mortgage foreclosure actions. We also discussed the underlying merits of defendants’ right to enforce the note and mortgage, though the motion for summary judgment was filed under the quiet title case. We did so because analysis of the quiet title action inherently required discussion of the same facts and legal issues that are present and at issue in the mortgage foreclosure case.

Plaintiffs, like defendants and this court, acknowledge the sufficient similarity in factual and legal issues in the matters that renders consolidation appropriate. Plaintiffs included in their appeal of the October 3, 2013 order the docket numbers for both the quiet title and foreclosure actions. See appeal of Oct. 3, 2013 order in Menard v. PennyMac Loan Services, LLC, et al. 2010-CV-8730/Citimortgage, Inc. v. Menard, 2009-CV-5465 (Pa. Super. 2013). This appeal' was filed prior to defendants’ joint motion to consolidate. Additionally, at oral argument for the motion to consolidate, plaintiffs’ counsel said “I understand that I don’t get another crack at that on the foreclosure side. We feel that the one court action is enough.” See N.T. 3/5/2014 at 18:2-6.

In sum, in both the quiet title and mortgage foreclosure actions, “[t]he only thing remaining is the financial amount due under the foreclosure . . . and essentially the foreclosure action seeks the money that they have to determine in order to get to a final judgment.” See N.T. 3/5/2014 at 7:3-8. “There cannot be a final order on the matter until the monies due and owing on the mortgage are determined.” See N.T. 3/5/2014 at 7:3-7 16, 18. Consolidation in this case is therefore significant and advantageous to the parties, and particularly to plaintiffs, because when consolidation occurs, the monies owed on the mortgage will thereafter be determined, and that will result in a final order. The Pennsylvania Superior Court quashed the Menards’ appeal of this court’s October 3, 2013 order granting summary judgment as to liability because there was not yet a final order. See N.T. 3/5/2014 at 20. Any issue that the parties may have, for example, plaintiffs’ disagreement with respect to the break in chain of title, can then be reviewed on appeal. Consolidation in this case will “reduce expenses for the parties and streamline the litigation of the matters.” See Cruz, 2005 WL 4875762, supra.

Therefore, because the factual and legal issues; the parties; counsel; the property and issue surrounding it in both actions are exactly the same; the parties will not be prejudiced by consolidation. Moreover, consolidation will make for more efficient litigation, consolidation of the matters is appropriate. See Swift, 983 A.2d 227 supra, Cruz, 2005 WL 4875762, supra; Fraynert, 2012 WL 6929343. For these reasons, further outlined above, we use our trial court discretion and order the quiet title and mortgage foreclosure actions consolidated. Fraynert, 2012 WL 6929343, supra; Roznowski, 493 A.2d 775, supra; Cruz, 2005 WL 4875762, supra.

2009-CV-5465 and 2010-CV-8730 are hereby consolidated into 2010-CV-8730 and this opinion shall be filed to both terms in numbers 2009-CV-5465 and the surviving file at 2010-CV-8730. An appropriate order follows.

ORDER

And now, this 27th day of June 2014, upon consideration of the motion of defendants PennyMac Loan Services, LLC and PNMAC Mortgage Co., LLC to consolidate the above-captioned matters; the Menard’s answer in opposition to the motion for consolidation; and oral argument on the matter, it is hereby ordered and decreed that:

1. Defendants’ motion to consolidate is granted.
2. The above-captioned lawsuits are hereby consolidated into one file at 2010-CV-8730.
3. All parties will endeavor to resolve the outstanding financial calculation without the act of the court and report back to the court within thirty (30) days of the date of this order. It is so ordered.

      . The note and mortgage were assigned from eHome Credit Corp. to CitiFinancial Mortgage Company, Inc. on August 19, 2004. Id. On June 8, 2009, the note and mortgage were assigned again from CitiMortgage, Inc. (successor to CitiFinancial) to Arch Bay Holdings, LLC. Id. at 6. The subsequent assignment from Arch Bay back to CitiMortgage was never recorded since the original was lost. Id. On September 9, 2009, CitiMortgage, Inc. executed an affidavit of lost assignment, and then on July 13, 2010, assigned the mortgage to PNMAC Mortgage Co., LLC. Id. Finally, PNMAC assigned the mortgage and note to PennyMac Loan Trust on January 8, 2013. Id.

      . The original parties in 2009-CV-5465 were Citimortgage and the Menards. In 2010-CV-8730, the original parties were the Menards, Citimortgage, e-Home Credit Corp., PennyMac Loan Services LLC, PNMAC LLC, and Archbay Holdings LLC Series 2009A. PennyMac Loan Services was substituted as plaintiff in 2009-CV-5465 on September 13, 2010, because PennyMac became successor to Citimortgage by assignment. See plaintiff’s praecipe for voluntary substitution of plaintiff, 2009-CV-5465 (Sept. 13, 2010). In 2010-CV-8730, eHome Credit Corp. and ArchBay Holdings LLC Series 2009A were forever barred from asserting any right, lien title, or interest in the subject property at 113 Macarby Lane. See order granting relief (Harhut, J.) (Apr. 11, 2011).

      . Defendants’ joint motion to consolidate in 2010-CV-8730 was filed December 31, 2013.


author: SPRECHER, J.,

text:
    Commonwealth v. Sodomsky

      C.P. of Berks County,
    No. CP-06-CR-1025-2005
    July 1, 2014
   SPRECHER, J.,

The Commonwealth appeals the order dated April 25, 2014, which granted defendant’s suppression petition. This opinion is filed pursuant to Pa. R. A.P. 1925 and supplements the discussion which accompanies the suppression order.

FACTS

The facts of this case are set forth in this court’s opinion docketed on June 2, 2011, which was written for the Commonwealth’s appeal of the suppression order dated March 18, 2011. This court notes that in the discussion which accompanied the instant suppression order, this court mistakenly stated that defendant, Kenneth F. Sodomsky, took his computer to Best Buy instead of Circuit City for repairs.

After the Superior Court reversed and remanded the case to this court for further proceedings, defendant again filed a suppression petition based on United States v. Jones, 615 F. 3d 544 (2012) which was decided on January 23, 2012, after the Commonwealth’s appeal of the prior suppression order. In Jones, the United States Supreme Court held that the Fourth Amendment protects people against unreasonable searches and seizures of their effects. Based on the Jones decision and for the reasons stated in the accompanying decision to the suppression order, this court granted defendant’s third suppression motion. The Commonwealth filed a timely appeal to the suppression order.

ISSUES

The Commonwealth raises the following issues in its concise statement of errors complained of on appeal.

1. Whether this court erred by granting defendant’s motion to suppress.

2. Did this court err by re-opening the suppression hearing in this case when United States v. Jones was decided before the Superior Court of Pennsylvania made its decision on the last appeal, and before the Supreme Court of Pennsylvania denied allocator, and, before the U.S. Supreme Court denied allocator in the last appeal.

3. Whether defendant has identified any intervening changes in the law that would have affected the resolution of the issues raised by defendant during the prior appeal in this case.

4. Did this court err in holding that law enforcement officers interfered with defendant’s possessory interest in his computer, or engaged in a physical intrusion of his computer property to the extent that they committed a trespass for the purpose of obtaining information, thereby violating defendant’s fourth amendment rights.

DISCUSSION

The Commonwealth’s first and fourth issues have been addressed by this court in the decision accompanying the instant order and need no further discussion. Therefore, this court shall address the Commonwealth’s second and third issues collectively.

The United States Supreme Court decided Jones after this court had rendered its decision in this case and after the Commonwealth had filed its concise statement of errors complained of on appeal. Therefore, neither this court nor the parties had an opportunity to raise or address the Jones decision as it pertained to the case sub judice. Since it was not addressed by anyone, it was never an issue before the Superior Court and was immaterial to the Superior Court’s decision. For these reasons, this court entertained defendant’s newest suppression petition.

Prior to Jones, the United States Supreme Court deviated from an exclusively property-based approach to a standard based on a person’s reasonable expectations of privacy in deciding search and seizure cases. The newer standard proclaims that the Fourth Amendment protects people, not places. The Pennsylvania courts also adopted this theory which was applied in the two prior suppression petitions. The Superior Court in the case sub judice stated as follows:

A search within the meaning of the Fourth Amendment occurs when an expectation of privacy that society is prepared to consider as reasonable is infringed. Under state constitutional principles, we employ the same two-part test used by the United States Supreme Court to determine the extent of Fourth Amendment protection, that is, we first decide whether a person has established a subjective expectation of privacy in the place searched, and then determine whether the expectation is one that society is prepared to recognize as reasonable and legitimate.

Superior Court opinion 3/27/12, 10-11. Applying that standard to the case at bar, the Superior Court found that defendant “did not have a legitimate expectation of privacy in video files on his computer.”

Thus, the Superior Court, in previously deciding the instant case, did not consider defendant’s property interest in the computer. Defendant owned the computer and never abandoned his ownership of it. Jones may not be entirely new law, but it reaffirmed that the government’s physical intrusion on an “effect” for the purpose of obtaining information constitutes a “search” and that this type of encroachment on an area enumerated in the fourth amendment would have been considered a search within the meaning of the amendment at the time it was adopted. It is new law in the sense that the expectation of privacy standard is no longer the exclusive test to determine if a search violates the fourth amendment. Thus, this approach is the equivalent to new law because it had not been applied since the expectation of privacy standard was enunciated in Katz v. United States, 389 U.S. 347 (1967) and was not applied or addressed by the Superior Court in the case sub judice.

For these reasons and those addressed in the decision which accompanied the suppression order that is the subj ect of this appeal, this court submits that the evidence must be suppressed due to the government’s illegal encroachment into defendant’s computer to obtain information without a search warrant and the Commonwealth’s appeal denied.

For the foregoing reasons, the court respectfully requests that the defendant’s appeal be denied and his sentence affirmed.


author: BOCCABELLA, J,

text:
    Commonwealth v. James

      C.P. of Berks County,
    No. CP-06-CR-1231-2014

      Justin Bordor, for Commonwealth.

      Steven E. Kellis, for defendant.
    July 9, 2014
   BOCCABELLA, J,

FINDINGS OF FACT

1. On October 05, 2013, at approximately 3:28 a.m., Trooper Rebecca Clatch and Trooper Rutt of the Troop L Hamburg Station were on duty in a marked patrol vehicle traveling southbound on SR61. Trooper Rutt was operating the vehicle and nearly sideswiped a “blur” on the west side of the roadway.

2. Trooper Rutt passed and to pull over in to a nearby parking lot and waited for the “blur” to investigate what it was. According to Trooper Clatch the defendant (Zackary Keith James) was swerving back and forth on the berm of the road on a bicycle. The video of the incident shows no incursion of the bicycle into the southbound lane of travel.

3. The defendant made a right turn on to Hughes Hill Rd. and the Troopers conducted a vehicle stop. Upon making contact with the rider, Trooper Clatch detected a strong odor of an alcoholic beverage emanating from his person and observed blood shot glassy eyes.

4. Trooper Clatch noted in her report that the defendant’s light on the bicycle was very dim and “possibly” had no reflector on the rear of the pedal cycle. The video of the incident clearly shows a reflection on the rear of the bicycle. Trooper Clatch asked the defendant where he was coming from. The defendant said he was coming from his friend’s house and going home. He also said he had a few drinks.

5. The defendant was then asked to submit to a series of standardized field sobriety tests (“SFST”). Trooper Clatch testified that she was certified to administer the SFST on the date in question. She further testified that the defendant failed the SFST’s.

6. At the conclusion of said SFST, the defendant was placed under arrest for suspicion of Driving Under the Influence (“DUI”) of Alcohol.

CONCLUSIONS OF LAW

1. “Where a defendant files a motion to suppress, the burdens of production and persuasion are on the Commonwealth to prove the challenged evidence was not obtained in violation of the defendant’s rights.” Commonwealth v. West, 834 A.2d 625 at 629 (Pa. Super. 2003), citing Commonwealth v. Wilmington, 729 A.2d 1160 (Pa. Super. 1999); See also Pa.R.Crim.P. 581(H).

2. The Constitution of the Commonwealth of Pennsylvania provides:

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or seize any person or things shall issue without describing them as nearly as may be, nor without probable case, supported by oath or affirmation subscribed to by the affiant.

Pa. Const, art. I, § 8.

3. “An officer may conduct a foil custodial search of a suspect when the suspect is lawfully arrested. Commonwealth v. Clark, 735 A.2d 1248, 1251 (Pa. 1999) citing Commonwealth v. Long, 414 A.2d 113, 115 (Pa. 1980). “When an officer makes an unlawful arrest, any evidence seized during a search incident to the arrest must be suppressed.” Id. citing Commonwealth v. Lovette, 450 A.2d 975, 981 (Pa. 1981).

4. To be valid, an arrest must be supported by probable cause. In re R.P., 918 A.2d 115 (Pa. Super. 2007). It is the prosecution’s burden of establishing, with reasonable specificity, facts sufficient to establish probable cause. Commonwealth v. Bartlett, 406 A.2d 340 (Pa. 1979).

5. In determining whether probable cause exists, Pennsylvania uses a totality of the circumstances test which focuses on the circumstances as seen through the eyes of a trained officer. Commonwealth v. Dommel, 885 A.2d 998 (Pa. Super. 2005), appeal denied, 920 A.2d 831 (Pa. 2007). Subjective intentions play no role in ordinary, probable cause fourth amendment analysis of arrests. Arkansas v. Sullivan, 532 U.S. 769 (2001).

6. “Probable cause to arrest exists where the facts and circumstances within the police officer’s knowledge...are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested In re R.P., 918 A.2d 115, 121 (Pa. Super. 2007) quoting Commonwealth v. Valentin, 748 A.2d 711, 715 (Pa. Super. 2000) (quotation and quotation marks omitted). “Probable cause must be ‘viewed from the vantage point of a prudent, reasonable, cautious police officer on the scene at the time of the arrest guided by his experience and training.’” Id. quoting Commonwealth v. Clark, 735 A.2d 1248, 1252 (Pa. 1999).

7. Determinations of probable cause must be based on a common-sense, nontechnical analysis. In the Interest of D.W., 629 A.2d 1387 (Pa. Super. 1993). Probable cause exists when criminality is one reasonable inference; it need only be the only, or even the most likely, inference. Commonwealth v. Burnside, 625 A.2d 678 (Pa. Super. 1993).

8. It is the facts and circumstances within the personal knowledge of the police officer that frames the determination of the existence of probable cause necessary for arrest. Commonwealth v. Galendez, 27 A.3d 1042 (Pa. Super. 2011). Probable cause does not involve certainties, but rather the factual and practical considerations of everyday life on which reasonable and prudent men act. Id.

9.“[I]t is the sole province of the suppression court to weigh the credibility of the witnesses. Further, the suppression court judge is entitled to believe all, part or none of the evidence presented.” Commonwealth v. Santiago, 980 A.2d 659, 664 (Pa. Super. 2009); See also Commonwealth v. Costa-Hernandez, 802 A.2d 671, 675 (Pa. Super. 2002); See also Commonwealth v. Quiles, 619 A.2d 291, 292 (Pa. Super. 1993) citing Commonwealth v. Smith, 577 A.2d 1387, 1388 (Pa. Super. 1990).

75 Pa.C.S.A § 3507. Lamps and other equipment on pedalcycles.

(a) Lamps and reflectors. — Every pedalcycle when in use between sunset and sunrise shall be equipped on the front with a lamp which emits a beam of white light intended to illuminate the pedalcycle operator’s path and visible from a distance of at least 500 feet to the front, a red reflector facing to the rear which shall be visible at least 500 feet to the rear and an amber reflector on each side. Operators of pedalcycles may supplement the required front lamp with a white flashing lamp, light-emitting diode or similar device to enhance their visibility to other traffic and with a lamp emitting a red flashing lamp, light-emitting diode or similar device visible from a distance of 500 feet to the rear. A lamp or lamps worn by the operator of a pedalcycle shall comply with the requirements of this subsection if the lamp or lamps can be seen at the distances specified.

10. In this case, Trooper Rutt and Trooper Clatch were on routine duty when “they" almost sideswiped a “blur.” Based on the police report and testimony of Trooper Clatch, the Troopers did not have reasonable suspicion or probable cause to initiate a “vehicle” stop of the defendant. There is no evidence that the defendant committed a vehicle code violation prior to the Troopers’ decision to conduct a stop. Almost getting sideswiped by a police vehicle is not a Vehicle Code Violation. Furthermore, the video tape submitted into evidence is inconsistent with Trooper Clatch’s testimony and report. The video did not clearly show the defendant swerving back and forth or crossing the fog line. Additionally, the video did show that the defendant’s pedal cycle had lighting in front and a sufficient reflector in the rear.

The court holds the evidence presented is not sufficient to establish reasonable suspicion or probable cause to support a lawful stop. Based on the totality of the circumstances, the court finds that the Commonwealth has not met its burden of a proper vehicle stop. The court finds that the asserted ground for initiating the stop was merely pretextual and not the result of an observation of a violation of the Motor Vehicle Code. Based on all of the foregoing, this court holds that the vehicle stop occurred in violation of the defendant’s constitutional rights. Accordingly, any evidence derived from the stop is inadmissible as fruit of the poisonous tree.

10. The defendant’s motion for suppression of the evidence is granted.

ORDER

And now, this 9th day of July 2014, it is hereby ordered that the defendant’s motion for suppression of the evidence is granted.


author: TUNNELL, J.,

text:
    West Chester Capital Advisors Inc. v. Marra

      C.P. of Chester County,
    No. 2014-00682

      George C. Zumbano and Jeffrey D. Bukowski, for plaintiff.

      James C. Sargent, for defendants.
    July 11, 2014
   TUNNELL, J.,

Appellants, Bruce L. Marra and West Chester Asset Management, Inc. (hereinafter referred to simply as “Marra”), filed a timely appeal from the decision and orders of this court entered May 15, 2014, which granted preliminary injunctive relief to appellee, West Chester Capital Advisors, Inc. (“WCCA”), and found appellants in contempt of the court’s January 31, 2014 injunctive order. The orders followed evidentiary hearings held April 1, 2, 8, 9 and 23 and May 1, 2014 and briefing by the parties thereafter.

The court entered an order directing appellants to file a concise statement of the errors complained of on appeal. They did so.

DISCUSSION

Appellants assert twelve alleged errors on appeal. More than half of the errors (¶¶ 1,3,4,7,9,11 and 10) challenge the factual determinations made by the court after it heard extensive testimony over the course of multiple hearing days. The remainder of the errors complained of (¶¶ 2, 5, 6, 8 and 12) challenge the legal conclusions which supported the court’s decision to enforce the restrictive covenant to which Mr. Marra agreed in his employment agreement with appellee.

The court rendered a decision of 26 pages containing detailed findings of fact, conclusions of law and a discussion of authorities, dated May 14, 2014, upon which the order for preliminary injunction rests. After review, the court believes that its prior decision fully sets forth the court’s reasoning for granting appellee’s request for injunctive relief and addresses the majority of errors asserted in the concise statement. The court, nonetheless, will address further some of the points raised in appellants’ concise statement of errors as they relate to the (1) civil contempt order and (2) preliminary injunction order.

Before doing so, it is important to mention certain unique issues present in this appeal.

The concise statement of errors complained of filed by Marra groups the errors under the headings of “JNOV” and “new trial.” Judgment Notwithstanding the Verdict (JNOV) is warranted only in two situations: (1) the movant is entitled to judgment as a matter of law, or (2) the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. Walker v. Drexel Univ., 2009 Pa. Super. 80, 971 A.2d 521 (2009). On the first ground, a court reviews the record and concludes that even with all the factual inferences decided adverse to the movant, the law nonetheless requires a verdict in the movant’s favor. On the second basis, a court reviews the evidentiary record and concludes the evidence is such that a verdict for the movant is beyond per adventure. Betz v. Erie Ins. Ex., 2008 Pa. Super. 21, 957 A.2d 1244 (2008). If there is any basis upon which the jury could have properly made its award, a denial of a motion for JNOV must be affirmed. Sewak v. Lockhart, 699 A.2d 755 (Pa. Super. 1997).

Inasmuch as this appeal lies from the entry of a preliminary injunction, there is no “verdict”, nor any similar final order. Thus, any argument for the failure to enter JNOV makes no sense. In order to preserve the right to request a JNOV post-trial, a litigant must first request a binding charge to the jury or move for a directed verdict at trial. See Pa.R.C.P. 227.1(b)(1); Hayes v. Donohue Designer Kitchen, Inc., 2003 Pa. Super. 84, 818 A.2d 1287, 1291, n. 4 (Pa. Super. 2003). Appellants did not do so.

Another problem with this appeal is that although Marra requested that a transcript be prepared, he has failed to pay for it so that the record is incomplete and cannot be reviewed consistent with the foregoing standards. The court is thus mightily hampered in furnishing a detailed opinion with citations to a certified transcript. Cf. Pa.R.J.A. 5000.11(b).

Nevertheless, it will do its best to address the errors raised by Marra.

A. Appellants’ Challenges to the Civil Contempt Order

Appellate review of a finding of contempt is limited to deciding whether the trial court abused its discretion. McMahon v. McMahon, 706 A.2d 350, 356 (Pa. Super. 1998). See also Sinaiko v. Sinaiko, 445 Pa. Super. 56, 63, 664 A.2d 1005, 1009 (1995) (review of finding of civil contempt limited to determining whether trial court committed “clear” abuse of discretion). Judicial discretion requires action in conformity with law on facts and circumstances before the trial court after hearing and consideration. Consequently, the court abuses its discretion if, in resolving the issue for decision, it misapplies the law or exercises its discretion in a manner lacking reason. Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa. Super. 2000). Great reliance is placed on the sound discretion of the trial judge when reviewing an order of contempt. Sinaiko, 445 Pa. Super. 56, 63, 664 A.2d at 1009.

1. The court properly concluded that Marra’s so-called “volunteers” were acting under his control and at his direction.

a. Concise Statement — Error 1

In arguing that it was error for the court to hold him in indirect civil contempt, Marra asserts that “as a matter of law” neither he nor his company are responsible for the actions of non-parties “who were not employed” by either Marra or WCAM, and who acted on their own, independently, “as volunteers.”

The evidence revealed, and the court found, that two long-time former employees, a Mrs. Moffett and a Ms. Founds, were in fact hard at work for Marra in no way distinguishable from what they used to do. In fact, Mr. Marra could not operate an investment advisory business at all without them because, as an older gentleman, he did not do his own typing, did not send emails, and could not operate the portfolio management software necessary to record trades, prepare invoices and perform other tasks. In short, he was helpless without them.

As findings of fact, the court found that Ms. Founds continued to operate the portfolio management software which she had copied onto her personal laptop, and performed services for Marra. (Finding of fact no. 63). Ms. Founds worked approximately 20-30 hours per week for Marra and his new company, three days a week from her home in Chester County, and two days in the Philadelphia office. (Finding of fact no. 62). Ms. Founds also prepared a significant number of the client advisory contracts for Marra, and other client account forms. Marra could not do so. Insofar as she did so, she necessarily used confidential information that belonged to WCCA, (Finding of fact no. 65), as will be further discussed.

Marra asserts that because these individuals worked only part-time, and worked without pay, they were necessarily “volunteers.”

The court saw it differently.

Agency is the relationship that results from (1) the manifestation by the principal that the agent shall act for him, (2) the agent’s acceptance of the undertaking, and (3) an understanding between the parties that the principal is to be in control of the undertaking. Basile v. H&R Block, Inc., 563 Pa. 359, 761 A.2d 1115 (2000). An agent may be either be a servant/employee, or an independent contractor. A servant is an agent employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right of control by the master. Smalich v. Westfall, 440 Pa. 409, 269 A.2d 476 (1970). An agent who furthers his employees’ interests, activities or affairs in general is his servant in the sense that liability follows the servant’s wrongdoing. Manufacturer’s Cas. Ins. Co. v. Goodville Mut. Cas. Co., 394 Pa. 364, 366, 147 A.2d 161, 163 (1959). Ms. Founds did testify that she was not currently being paid. In any event, it is not required for a servant or an employee to be paid in order to occupy either status. Biedenbach v. Teague, 194 Pa. Super. 295 (1960), McMahen v. White, 30 Pa. Super. 169 1905)(where person undertakes voluntarily to perform services for another, who assents thereto, he or she stands in relation of servant to latter); Restatement (Second) of Agency § 225 (1958) (“One volunteering services without an agreement for or expectation of reward may be a servant of the one accepting such services.”)

Under the circumstances of this case, the overwhelming evidence indicates that these two individuals were at all times acting at the specific request and under the control of Marra in the furtherance of his interests, activities and business and, consequently, Marra would be liable for their torts. This is essentially 6.40 (Civ) of the Pennsylvania Suggested Standard Civil Jury Instructions. The same logic compels the conclusion that Marra can be and was properly held in indirect civil contempt for their activities by reason of that same direction and control.

2. The court properly concluded that Marra was operating an investment advisory business in Chester County.

a. Concise Statement — Errors 3 and 10

Several of the assigned errors suggested that the court “disregarded the unrefuted evidence.” In fact, in error 3 and 10, the “unrefuted evidence” was that Marra and his company provided investment advisory services only from their new office in Philadelphia County.

Even if this evidence was unrefuted, and it was not, no one who takes the witness stand is entitled to be believed. Credibility is more than just truthfulness. Even uncontradicted testimony need not be accepted by the trier of fact as either true or accurate. Taliaferro v. Darby Twp. Zon. Hearing Bd., 873 A.2d 807 (Pa. Cmwlth. 2005). As the judge of believability and of the facts in the case, the court was entitled to give Marra’s evidence whatever weight the court determined it should receive. In this respect, the court can believe all, or part, or none of any witness’ testimony.

The court’s credulity was strained to the breaking point when, on February 10,2014, the very day plaintiff’s investigator went into Marra’s office at 106 South Church Street, West Chester, Marra was discovered to be conducting his investment advisory business. One of “his” elderly clients, and they were almost all elderly, a Mrs. Parry, was signing trade authorization forms, duly notarized by Ms. Moffett. (Finding of fact no. 46). As the court wrote in its footnote to the contempt order “the court does not give credence to Marra’s testimony that this was a singular occurrence.”

Marra also argues that the use of old software loaded onto a computer by Mrs. Founds could not be a misappropriation of any trade secret by anyone. See also concise statement — error 11. Marra appears to argue that the software is of such vintage that it was not useful, or that the information on the laptop in question could not be a property right of the plaintiff today. The credible evidence belies these arguments. Even if the software predated the acquisition of Marra’s stock, thus arguably once belonging to Marra’s former company, the purchase of 100% of his shares for $2,769,966 necessarily included the acquisition of any rights to this portfolio management software. The software was later copied onto Ms. Founds’ personal laptop so that she could continue to perform the services aforementioned. (Finding of fact no. 63). The software in question was capable of taking client data and finances and recording trades, updating client portfolios, preparing invoices, and performing a number of related tasks for client accounts which are absolutely important to operating an investment advisory business. (Finding of fact no. 64).

Under Pennsylvania law, an employer has a legitimate interest in the protection of its trade secrets and other confidential information. See Hess, 570 Pa. at 163, 808 A.2d at 921 (citing Morgan’s Home Equip. Corp. v. Martucci, 390 Pa. 618, 631, 136 A.2d 838, 846 (1957)); Volunteer Firemen’s Ins. Servs., Inc. v. CIGNA Property and Casualty Ins. Agency, 693 A.2d 1330, 1337 (Pa. Super. 1997) (affirming non-compete covenant enforceable where independent insurance agency had legitimate protectable interests in confidential information and trade secret data); see also Quaker Chem., 509 F. Supp. 2d at 479 (E.D. Pa. 2007) (holding employer entitled to specific performance of the non-competition covenant because former employee possessed extensive knowledge of employer’s confidential information and thus had a “very real opportunity to harm Quaker’s legitimate business interest” by working for a competitor); Nat'l. Bus. Servs., Inc. v. Wright. 2 F. Supp. 2d 701, 708 (E.D. Pa. 1998) (holding defendant’s proposed work for plaintiff’s competitor “would violate the noncompete agreement” because, among other reasons, “[i]t is virtually inconceivable that [defendant] would be able to avoid utilizing the confidential information she learned at [plaintiff] corporation and exploiting [plaintiff’s] customer goodwill). The court found that the use of the software described, and as important, the use and disclosure to appellant West Chester Asset Management of the information maintained by the software, still belongs to WCCA, the plaintiff appellee. (Finding of fact no. 65). A client’s name, address and financial information is either confidential, or it is not. The court was able to judge the credibility and demeanor of five or six different clients who testified at trial, and has no doubt that they would consider their information to be certainly private, confidential and protectable as a trade secret for all intents and purposes. As the court has previously written, when one solicits customers one presumably uses confidential information to gamer their names and addresses as well as other financial information regarding them. Bell Fuel Corp. v. Cattolico, 375 Pa. Super. 238, 257-58, 544 A.2d 450, 460 (Pa. Super. 1988). The court drew that inference here.

In addition, there was much credible evidence that the Philadelphia County office conducted virtually no investment advisory business, and that the mail and just about everything else was redirected to Chester County, as the court set out in its decision.

b. Concise Statement — Error 4

In this error, Marra attempts to exculpate himself from violations of the court’s order of January 31, 2014 by asserting (1) that he acted on advice of counsel — which in the court’s estimation is no defense, (2) he was entitled to retain counsel in Chester County to defend himself— which is not the point, and that (3) “counsel’s purpose, as disclosed on the record,” was to collect such contracts and disclose them to opposing counsel. The point is Marra was ordered not to conduct any such business within Chester County by the court. See Harley Davidson, Inc. v. William Morris, 19 F.3d 142, 148-49 (3d. Cir. 1994)(noting that willfulness is not a necessary element of civil contempt) (citing Waste Conversion, Inc. v. Rollins Environmental Services (NJ), Inc., 893 F.2d 605, 609 (3d Cir.l990)(citing McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 499, 93 L.Ed. 599 (1949)); see also See Gunther v. Bolus, 2004 Pa. Super 8, 853 A.2d 1013 (2004) (sustaining court’s finding that willful violation of court order occurred despite testimony by violator that he tried to contact counsel to determine if order was stayed pending appeal). Counsel did state his “purpose,” but this was not evidence that the court was bound to consider or believe. His counsel cannot excuse Marra. The same counsel had also scripted Marra’s talking points and correspondence. Forwarding unopened mail to counsel’s office was no prophylactic.

c. Concise Statement — Error 12

Appellants contend that the court erred in denying their oral motion to exclude the testimony of witness, Karen Carter, during the contempt proceedings. Appellee called Ms. Carter, a paralegal in the office of plaintiff’s counsel, to testify about observations she made of the physical aspects of the business located at 106 South Church Street during a visit on February 10, 2014, days after the court’s initial injunction order, dated January 31, 2014. Appellants’ objected to the testimony on several hearsay grounds and argued that Ms. Carter’s presence in the office amounted to a violation of the Rule of Professional Conduct 4.2. After consideration of the evidence, and the arguments presented at the time of appellants’ oral motion and briefed in the parties’ memoranda of law, the court concluded that exclusion of the testimony was not required.

Although counsel can be disqualified for violations of the Rules of Professional Conduct, misconduct, or in this case alleged misconduct, may not be used as a basis for altering the rules of law, including evidentiary rules, presumptions and burdens of proof, which would otherwise apply to a case. In re Estate of Pedrick, 505 Pa. 530, 542-43, 484 A.2d 215, 221-22 (1984). Appellants acknowledged as much when in arguing the motion to exclude Ms. Carter’s testimony they sought to preclude the testimony on evidentiary grounds not pursued in this appeal. The requested relief for the alleged violation of the Rule of Professional Conduct 4.2 was referral of the conduct by the court to the disciplinary board. In their memorandum of law on this issue, appellants stated the following:

Defendants respectfully submit...that the issue as to the propriety of counsel’s actions should be referred by the court to the disciplinary board...

(Def.’s memo, to preclude oral testimony, at p. 3.)

The court concluded after hearing the limited testimony of Ms. Carter that her conduct did not require further action by the court. As important, the court had ample testimony from other witnesses, including but not limited to Marra himself and his agent, Ms. Founds, with which to conclude that a violation of its prior order had occurred.

B. Appellants’ Challenges to the Preliminary Injunction Order

Appellate review of a trial court’s order granting or denying preliminary injunctive relief is “highly deferential.” Summit Towne Centre, Inc. v. Shoe Show of Rocky Mount Inc., 573 Pa. 637, 828 A.2d 995, 1000 (2003). In reviewing the grant or denial of a preliminary injunction, an appellate court is directed to “examine the record to determine if there were any apparently reasonable grounds for the action of the court below.” Id. Appellate courts on appeal are

bound by the chancellor’s findings of fact, particularly if approved by the court en banc, to the same extent as we would be bound by the factual determinations of a jury. The test in either case is whether the findings are adequately supported by the record. The chancellor’s findings are entitled to particular weight in a case in which the credibility of the witnesses must be carefully evaluated, because he has had the opportunity to hear them and to observe their demeanor on the stand. Charles v. Henry, 460 Pa. 673, 334 A.2d 289 (1975).

Stauffer v. Stauffer, 465 Pa. 558, 567, 351 A.2d 236, 240 (1976); accord Weir v. Estate of Ciao, 521 Pa. 491, 556 A.2d 819 (1989) (at bench trial, it is trial court’s duty to judge credibility and weigh testimony and its findings will not be disturbed absent error of law or abuse of discretion); Hostetter v. Hoover, 378 Pa. Super. 1, 6, 547 A.2d 1247, 1250 (1988) (appellate courts are constrained by narrow standard of review in equity matters and are bound by trial court’s determination pertaining to credibility of witnesses and weight to be accorded evidence).

1. The court construed the restrictive covenant in accordance with Pennsylvania law.

a. Concise Statement — Error 2

Appellants contend that the court erred when it found that the parties’ dealings at the conclusion of the. two year term of the initial employment agreement effectuated a renewal of the employment agreement and the restrictive covenant therein. The court fully addressed this issue and the case law supporting its conclusions at pp. 17-20 of its decision, but a few additional points are worth noting.

First, appellee did not shy away from the 2011 employment agreement as suggested by appellants. Instead, WCCA consistently argued that Marra’s employment with plaintiffs, both as an employee and a corporate director, continued uninterrupted until the date of Marra’s voluntary resignation under the same compensation arrangement, with the exception of certain stock options that were the subject of discussion between the parties. During his continued employment, Marra received the same salary and benefits as he did under the first employment agreement. The parties continued negotiations on limited aspects of his compensation.

Second, appellants’ attempt to distinguish DeMuth v. Miller, 438 Pa. Super. 437, 652 A.2d 891 (Pa. Super. 1995) falls short. Marra contends his facts are different from those in DeMuth because there “the facts established that the parties had repeatedly renewed their contract.” (Def.’s mot. for reconsideration, at ¶30). As discussed, the facts in this case demonstrate the same. Like in DeMuth where the parties’ negotiations over the defendant’s bonus continued after the expiration of the first agreement, here the parties continued to discuss additional compensation terms (e.g. stock options) during Mr. Marra’s employment. This fact does not negate the court’s finding that a renewal occurred.

Finally, it did not go without notice to the court, sitting in equity, that Marra conveniently timed the end of these discussions and his resignation for just weeks before the end of the restrictive period imposed by the first employment agreement. In essence, Marra continued his employment (and directorship) with appellee pursuant to the same compensation terms, while discussing additional aspects of his compensation plan, in an effort to “run out” the time on the restrictive covenant to which he agreed and was bound. The court properly concluded that appellants should not have been permitted to deprive appellee of the benefit of the bargain reached by the parties. See Erkess v. Eisenthal, 354 Pa. 161, 47 A.2d 154 (1946); Levin v. Pittsburgh United Corp., 330 Pa. 457, 199 A. 332 (1938); Bloshinski et al. v. Falaz, 168 Pa. Super. 565, 79 A.2d 798 (1951)(extending time for performance of contract although time set out in agreement had expired, in order to avoid harm that would have befallen the moving party).

b. Concise Statement — Error 5

Appellants contend that the court failed to (1) construe the restrictive covenant narrowly and (2) “acknowledge” that restrictive covenants are restraints of trade. The court is well aware of the law in this Commonwealth with regard to restrictive covenants and the parties reiterated those principles for the court in their various briefs and proposed findings of facts and conclusions of law. The court set forth the requirements for injunctive relief in its decision at pp. 23-24 and contrary to appellants’ suggestions, was not required to “acknowledge” that restrictive covenants are restraints of trade.

Appellants’ claim that the court erred in finding that Marra violated his restrictive covenant and the court’s January 31, 2014 order by contacting WCCA clients is likewise without merit. First, the court rejects appellants’ assertions that Marra’s actions were simply part of his effort to contact clients in order to “inform” them of his departure. Having judged the witnesses’ credibility and their testimony, the court found that Marra’s conduct did not amount to “informing” clients, but “soliciting” them in violation of the restrictive covenant.

Second, appellants improperly rely upon PTSI, Inc. v. Hadley, 2013 Pa. Super. 130,71 A.3d 304 (2013) to support their argument that Marra had the right to contact customers to “inform” them of his departure. In Hadley, the claim was one for breach of loyalty and fiduciary duty, not one based upon a contractual restriction. The Hadley court acknowledged that although a party may have the right to begin a new business and compete — that right can properly be limited when there is an express contract and/or elements of fraud or trade secrecy exists. Id. at 312.

c. Concise Statement — Error 6

Marra also complains in error 6 that the court “erred in failing to refer the matter to arbitration consistent with the arbitration clause...for findings of fact as to the meaning of key terminology.” The arbitration clause set forth no such requirement and appellants did not make such a request of the court at any time prior to their motion for reconsideration. The record will reveal that Marra moved the court to refer the matter to arbitration consistent with the arbitration clause in the employment agreement, which motion the court granted. However, both parties acknowledged that specifically excepted from that arbitration clause were injunctive matters, and that was what the court was hearing. In so doing, the court necessarily had to interpret and understand the agreements between the parties, or it could not have performed its job. It could hardly be error for the court to do so. The court did note in its order of May 15, 2014 that the arbitrators were free to come to any different interpretations in findings of fact of the matters properly before them.

d. Concise Statement — Errors 7 and 9

In these errors, Marra contends that the court failed to give proper weight to facts/conclusions that they deemed important to the case — all of which center upon Marra’s opinions about how WCCA ran its business and whether or not it was doing a good job. These assertions are irrelevant to the questions that were before the court: was Marra subject to a restrictive covenant and if so, did he violate that covenant. Marra cannot excuse his conduct by disparaging the manner in which appellee managed its business.

For example, during the hearings, Marra made much ado about the Cannon Report, a market study which Ameriserve had commissioned. It contained a caveat of sorts to Ameriserve that the clientele might well consider its allegiance to be with Mr. Marra and follow him. It was Ameriserve’s prerogative to proceed with the acquisition of Marra’s interest anyway. The court inferred that it was for that very reason that Ameriserve insisted that Marra sign the restrictive covenants in this case. The fact that the Cannon Report exists in no way excuses Marra from violating those covenants.

One of the biggest ironies in this case is that Marra went to a good deal of trouble that in all likelihood would have been unnecessary. The court has no doubt that some number of the plaintiff’s clients, and they were then the plaintiff’s clients, would have found their way to Mr. Marra in any event. His exertions of November, December and January in soliciting some of them were needless. There was no exception in the restrictive covenant for old friends. Marra argued, but the evidence did not show, “that most of the clients who left...initiated the contact with Marra themselves.” Some did, but many did not, and some who came to court to testify were shown to have been prompted by Marra.

Mr. Kraywick was under no contractual prohibition from soliciting, nor from trying to keep the business his company had acquired, and he had every right to contact the people that he did to that end. There was no reason why he could not advise his clientele that Marra was obliged to follow a restrictive covenant.

e. Concise Statement — Error 8

In this error, appellants attempt to avoid responsibility for their actions by claiming that (1) as a “lay person” Mr. Marra could not have understood that his actions constituted solicitation and (2) the court erred by choosing to cite a definition of the term “solicit” that appellants claim is “arcane.” Their arguments fail.

First, appellants’ insistence the court’s use of the most “modem” definition of the term “solicit” ignores a material fact in this case. The contractual language did not simply prohibit solicitation. The contractual prohibition covered actions to “solicit...or attempt to divert.” Mr. Marra did both.

Second, although the court included in its discussion one definition of the term “solicit” (which Marra acknowledges can be defined in similar, yet not identical ways by arguing for the use of two other definitions of “solicit”), the court did not rely solely on that citation. Throughout its decision, and in this part of its discussion, the court cited to and relied upon case law involving similar facts. The definitions offered by appellants are consistent with that offered by the court and had they been used would not have changed the court’s findings.

Finally, to suggest now, as he did during the proceedings, that Mr. Marra did not know what the term “solicit” meant is totally unconvincing. Mr. Marra is not a “lay” person as argued by appellants. He is a licensed member of the financial services industry, subject to its rules and regulations and those of the firms with which he associates. He has been so for years. As a member of a regulated industry, it is Mr. Marra’s job to know what he can and cannot do when servicing and handling clients. If Mr. Marra wished only to “inform” his clients that he was leaving and to “remind” them of their right to choose a broker, he could have asked appellee (a) to send a letter or (b) to review and approve his letter to ensure he complied with his restrictive covenant. He did not do either because the evidence showed that he intended to improperly solicit clients.

“To solicit” in the financial services world (arid to the advisors and brokers who work in it) is neither obtuse nor a word of art. There is in fact no need to resort to a dictionary to discover its meaning.