author: COX, J.,

text:
    Commonwealth v. Plum

      Diane Shaffer, assistant district attorney, for Commonwealth.

      Michael A. Frisk, for defendant.
    February 8, 2011
   COX, J.,

Before the court for disposition is the petition for writ of habeas corpus filed on behalf of the defendant Steven Michael Plum, in which he argues that the commonwealth failed to establish a prima facie case proving that the defendant was in actual physical control of the motor vehicle as is required by the driving under the influence statute, 75 Pa.C.S.A. § 3802.

On April 18, 2010, an automobile was involved in an accident after the driver failed to negotiate a bend on Lawrence Avenue, Ellwood City, Lawrence County, Pennsylvania. The driver drove the vehicle through a wooden utility pole then struck a parked vehicle and rested upon another utility pole. Christian Lample, who was visiting his mother-in-law’s residence, heard a loud noise and went to investigate. He soon noticed a vehicle resting upon a utility pole near a small autobody shop. He ran to the vehicle and arrived approximately 40 to 45 seconds after he heard the noise. Upon arrival at the scene, Mr. Lample noticed the defendant in the driver’s seat of the vehicle with his leg partially on the seat. Mr. Lample did not observe anyone else inside or outside of the vehicle. The defendant informed Mr. Lample that he was looking for his cellular phone. Shortly thereafter, members of the Ellwood City Police Department arrived at the scene of the accident and were followed by Trooper Shawn King of the Pennsylvania State Police. Trooper King noticed the defendant emitted a strong odor of alcohol and had bloodshot and glassy eyes. Additionally, the defendant insisted that he was not driving the vehicle and gave inconsistent recounts of the accident, first stating that he did not want disclose the identity of the driver for fear of retaliation and, later, he explained that the owner of the vehicle was driving. As a result of the investigation, the trooper transported the defendant to Ellwood City Hospital for a blood alcohol test to determine if he was intoxicated. The defendant was charged with the following offenses: driving under the influence: general impairment, driving under the influence: highest rate of alcohol, 2 counts of driving while operating privilege is suspended or revoked, required financial responsibility, driving on roadways laned for traffic, driving vehicle at safe speed and careless driving.

The defendant has filed this petition for writ of habeas corpus, in which he contends that the commonwealth has failed to establish a prima facie case for driving under the influence as there is no evidence that the defendant was in actual physical control of the vehicle.

A petition for writ of habeas corpus is the proper means for testing a pre-trial finding that the commonwealth has presented sufficient evidence to establish a prima facie case. Commonwealth v. Karlson, 674 A.2d 249 (Pa. Super. 1996). In evaluating an accused’s entitlement to pre-trial habeas corpus relief, a trial court must determine whether there is sufficient evidence to make out a prima facie case that the defendant committedthe crime with whichhe or she is charged. Commonwealth v. Hock, 556 Pa. 409, 728 A.2d 943 (1999). In a pre-trial habeas corpus proceeding, as in a preliminary hearing, the commonwealth has the burden of establishing a prima facie case, offering some proof to establish each material element of the offense as charged. Commonwealth v. Owen, 580 A.2d 412 (Pa. Super. 1990). This does not mean that the prosecution must prove the accused guilty beyond a reasonable doubt, but rather, the prosecution must establish “sufficient probable cause” that the accused has committed the offense. Commonwealth v. Prosdocimo, 479 A.2d 1073 (Pa. Super. 1994). The standard for determining whether a defendant is properly held for court is: (a) that the record reveals a prima facie showing that a crime or crimes have been committed; and (b) that the defendant was in some way legally responsible. Liciaga v. Court of Common Pleas of Lehigh County, 523 Pa. 258, 566 A.2d 246 (1989). A prima facie case consists of evidence, read in the light most favorable to the commonwealth, that sufficiently establishes both the commission of a crime and that the accused is probably the perpetrator of that crime. Commonwealth v. Fountain, 811 A.2d 24 (Pa. Super. 2002).

The commonwealth establishes a prima facie case when it produces evidence that, if accepted as true, would warrant the trial judge to allow the case to go to a jury. Commonwealth v. Marti, 779 A.2d 1177 (Pa. Super. 2001). The prima facie case merely requires evidence of the existence of each element of the crime charged. Id. Additionally, the evidence is to be reviewed in a light most favorable to the commonwealth and the commonwealth is entitled to reasonable inferences drawn from the evidence. Id. The weight and credibility of the evidence is not a factor at this stage, the commonwealth need only demonstrate sufficient probable cause to believe the person charged has committed the offense. Id.

75 Pa.C.S.A. § 3802 requires the commonwealth to establish that the defendant was in actual physical control of the vehicle. Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super. 2008). The court must examine the totality of the circumstances and consider the following factors when determining if the defendant was in actual physical control of the vehicle: “the motor running, the location of the vehicle, and additional evidence showing that the defendant had driven the vehicle.” Id. (quoting Commonwealth v. Woodruff, 668 A.2d 1158, 1161 (Pa. Super. 1995)). The commonwealth is permitted to establish that the defendant was in actual physical control of the vehicle solely through circumstantial evidence, Id. (citing Commonwealth v. Johnson, 833 A.2d 260 (Pa. Super. 2003)). “The concept of‘actual physical control’ involves the control of the movements of either the machinery of a motor vehicle or of the management of the vehicle itself, without a requirement that the entire vehicle be in motion.” Commonwealth v. Grimes, 648 A.2d 538, 544 (Pa. Super. 1994) (citing Commonwealth v. Bobotas, 588 A.2d 518, 521 (Pa. Super. 1991)). Merely demonstrating that the defendant was in the vehicle while intoxicated is insufficient to establish that the defendant was in actual physical control of the vehicle. Commonwealth v. Brotherson, 888 A.2d 901, 904-905 (Pa. Super. 2005) (citations omitted).

In Williams, supra., an eye-witness observed the appellant’s vehicle stuck on railroad tracks with the engine running and front wheels turning. The appellant was sleeping in the back seat and there was no one in the driver’s seat. The witness attempted to wake the appellant, but was unsuccessful, so she called 911 to report the incident. The witness turned the engine off and put the transmission in park. Apasserby arrived at the scene shortly thereafter and aided the witness in removing the appellant from the vehicle. Subsequently, a police officer arrived and attempted to wake the appellant, but was unable to do so. The police officer noticed a strong odor of alcohol when he attempted to check the appellant’s pulse. The appellant eventually sat up and informed the police officer that she was alone in the vehicle, but she was confused and had difficulty answering questions. Eventually, the police officer issued the appellant her Miranda warnings and drove her to the hospital for a blood alcohol test.

The appellant refused to submit to a blood test after being asked twice. The police officer charged her with driving under the influence.

The appellant argued that the commonwealth was unable to prove that the she was in actual physical control of the motor vehicle because she was asleep in the backseat of the vehicle, the police officer was unable to determine the exact time of the accident and the facts demonstrate that someone else could have operated the vehicle and abandoned it on the railroad tracks with the appellant sleeping in the back seat. The Williams court recalled that the witness observed the appellant’s vehicle resting on the railroad tracks with the front wheels turning, the engine running and the appellant unconscious in the back seat. Williams, 941 A.2d at 28. Once the appellant was awake, the police officer noticed that she emitted a strong odor of alcohol and was unable to walk without assistance. Id. The Williams court agreed with the trial court’s reasoning that the commonwealth presented sufficient evidence establishing that the appellant was in actual physical control of the vehicle as she admitted that she was alone in the vehicle, she was discovered in the back seat of the vehicle, the engine was running, the wheels were turning and she had difficulty answering questions. Id., 941 A.2d at 29.

Moreover, in Commonwealth v. Wilson, 660 A.2d 105, 107 (Pa. Super. 1995), the court ruled that the commonwealth presented sufficient evidence establishing the appellant was in actual physical control of the vehicle based on the following circumstances: the appellant was alone in the driver seat of the vehicle which was found on the bottom of an embankment, the vehicle was not parked but was stuck at the bottom of the embankment, and the hood of the vehicle was still warm which suggested that it had been driven recently.

In the case sub judice, the vehicle in question was found resting on a wooden utility pole off the roadway on Lawrence Avenue. Mr. Lample testified that he arrived at the scene of the accident 40 to 45 seconds after he heard the crash and observed the defendant sitting alone in the vehicle with his leg partially on the driver’s seat. The defendant informed Mr. Lample that he was searching for his cellular phone inside of the vehicle, which was in disarray because compact discs were tossed around due to the accident. Mr. Lample did not observe anyone near the scene of the accident or exit the vehicle. Subsequently, Trooper King arrived and asked the defendant who was driving the vehicle. The defendant insisted that he was not operating the vehicle, but gave inconsistent responses as to why he would not identify the driver. First, the defendant claimed that he was afraid of retaliation if he identified the driver. Later, he stated that the owner of the vehicle was driving.

The commonwealth has presented sufficient evidence to establish a prima facie case that the defendant was in actual physical control of the vehicle. As in Williams, supra., the defendant was alone in the vehicle and was unable or unwilling to provide the police officer with the identity of the driver. Moreover, Mr. Lample testified that he did not observe anyone exit the vehicle or near the vicinity of the accident, even though he arrived approximately 40 to 45 seconds after he heard the loud crashing noise. Similar to Wilson, the vehicle was not voluntarily parked, it was resting on a wooden utility pole off the roadway near an autobody shop on Lawrence Avenue and the defendant was alone in the driver’s seat of the vehicle at the time that Mr. Lample arrived. Therefore, in accordance with the decisions rendered in Williams and Wilson, the commonwealth has presented sufficient evidence to establish that the defendant was in actual physical control of the vehicle.

For the reasons set forth in this opinion, the defendant’s petition for writ of habeas corpus is denied.

ORDER OF COURT

And now, February 8, 2011, this case being before the court on February 3, 2011, for a hearing on the petition for writ of habeas corpus filed by the defendant, with both parties appearing, the commonwealth of Pennsylvania, represented by counsel, Diane Shaffer, Esquire, Assistant District Attorney for the County of Lawrence and the defendant, Stephen Michael Plum, represented by counsel, Michael A. Frisk, Esquire and after a hearing held, the court enters the following order and it is ordered, adjudged and decreed as follows:

1. In accordance with the attached opinion, the petition for writ of habeas corpus filed by the defendant is hereby denied.

2. The clerk of courts is directed to serve a copy of this order of court and attached opinion upon counsel of record, Diane Shaffer, Esquire and Michael A. Frisk, Esquire.

      . 75 Pa.C.S.A. § 3802(a)(1).

      . 75 Pa.C.S.A. § 3802(c).

      . 75 Pa.C.S.A. § 1543(b)(1) and (b)(1.1)(i).

      . 75 Pa.C.S.A. § 1786(1).

      .75 Pa.C.S.A. § 3309(1).

      . 75 Pa.C.S.A. 3361.

      . 75 Pa.C.S.A. § 3714(a).

      . It must be noted that in Williams, the appellant was challenging the trial court’s order denying her motion to suppress; however, it is still applicable to the current matter as a prima facie case merely requires that the commonwealth demonstrate probable cause that the defendant committed the offense.


source: Caselaw Access Project

author: CHARLES, J.,

license: Public Domain

text:
    H.R. Weaver Building Systems, Inc. v. Dommel

      Christopher E. Rice and Seth T. Mosebey, for plaintiff.

      Alan R. Boynton Jr. and Dana M. Windisch, for defendants.

      Ethan R. O ’Shea, for intervener.
    February 4, 2011
   CHARLES, J.,

The lawyer-client relationship is unique in many respects. Particularly noteworthy is the fact that attorneys and clients do not enjoy the unfettered ability to sever their relationship. When an attorney enters an appearance on behalf of a litigant, the court supervising the litigation becomes the ultimate arbiter of whether an attorney and/or a client can “fire” one another.

In this case, the law firm of McNees Wallace & Nurick, LLC (hereafter “MWN”) seeks to extricate itself from any further representation of the defendants in the above-referenced action. (The defendants will hereafter be collectively referred to as “Dommels”.) The Dommels have not opposed MWN’s request. However, plaintiff has lodged an objection, claiming that a change of counsel at this late stage of the litigation would delay its efforts to obtain relief.

I. FACTS

On July 28, 2008, plaintiff H.R. Weaver Building Systems, Inc. (hereafter “Weaver”) commenced two actions by filing Notices of Mechanics’ Liens on property owned by the Dommels. These two mechanics’ liens were eventually consolidated and a complaint was filed alleging a mechanics’ lien claim, breach of contract, quantum meruit and violations of Pennsylvania’s Contractor and Sub-Contractor Payment Act.

On December 8, 2008, attorneys Alan R. Boynton, Jr. and Dana M. Windisch of MWN entered their appearance on behalf of the Dommels. A little less than one month later, MWN filed an answer on behalf of the Dommels. Since that time, MWN has served as counsel for the Dommels in the above-referenced litigation.

On July 6, 2010, we met with all counsel. One of the purposes of the status conference was to address a petition to intervene filed by Jonestown Bank and Trust Company. Ultimately, we granted Jonestown’s petition to intervene on July 22, 2010. In addition to addressing the petition to intervene, we also discussed deadlines at the July 6, 2010 status conference. We established a discovery deadline of January 6, 2011 and a deadline for filing of dispositive motions of January 26, 2011. Pursuant to our scheduling order, Jonestown filed a motion for summary judgment on January 24, 2011. That motion is still pending.

On October 4, 2010, MWN filed a motion to withdraw as counsel for the Dommels. The plaintiffs responded to this motion on October 15,2010. The key paragraph within plaintiff’s response is paragraph 5, which reads: “plaintiff is concerned that if McNees Wallace & Nuriclc, LLC is permitted to withdraw this close to trial, then defendants may attempt to further delay the trial when seeking new counsel.” To date, the Dommels have not responded to MWN’s motion to withdraw.

Unfortunately, MWN’s petition to withdraw was not listed for argument court until January of 2011. When the above-referenced file was submitted to us, and when we perceived the nature and importance of resolving MWN’s request as promptly as possible, we expedited an analysis of the decision we will be entering today’s date.

II. DISCUSSION

An attorney who has entered his/her appearance on behalf of a client in pending litigation cannot unilaterally withdraw that appearance: court approval must be sought and obtained. C. E. Williams Co., v. Henry B. Pancoast Co., 412 Pa. 166, 194 A.2d 189 (Pa. 1963); Pa.R.C.P. No. 1012(b)(1). “Ordinarily, the question of whether an attorney should be permitted to withdraw his appearance is within the discretion of the trial court and the decision of the trial court will be reversed only when plain error is committed.” Phoenix Mutual Life Insurance Company v. Radcliffe on the Delaware, Inc., 439 Pa. 159, 163, 266 A.2d 698, 700 (Pa. 1970). When a motion to withdraw as counsel is filed, any opposing party to pending litigation has standing to object. Hernandez v. Japort, 416 Pa. 304, 205 A.2d 867 (Pa. 1965). If an opposing party can establish prejudice, this can be enough to justify the denial of a motion to withdraw as counsel. Phoenix Mutual, supra; Hernandez, supra.

There are relatively few cases that have discussed the circumstances under which a motion to withdraw should or should not be granted. See Phoenix Mutual, supra; Hernandez, supra, Helms v. Kuebler, 44 Pa. D. & C. 71, 73 (1942) (“The relation of an attorney to his client is one of the greatest confidence. After an attorney enters an appearance for a party to an action, such appearance cannot lightly be withdrawn.”); McVicker v. Jones, 67 Pa. D. & C. 2d 582, 584 (1974); Schmittinger v. Grogan, 128 A.2d 114, 116 (Pa. Super. 1956). The cases that we did read focused on three factors that we find to be intuitively obvious. Simplified, the test for determining withdrawal focuses on who, when and why.

(1) Who? A court should identify who is requesting the withdrawal. Is it the attorney? Is it the client? If it is the former, does the attorney have a history of filing similar requests when clients do not promptly pay the amount promised? If it is the latter, is the request to terminate counsel’s services merely a veiled method to obtain an otherwise invalid continuance? In addition, we must also ascertain who is objecting to the withdrawal. If an opposing party objects, is the objection based upon legitimate prejudice or does it represent disagreement merely for the purpose of being disagreeable.

(2) When? At what point during the pendency of a litigation was the motion to withdraw filed? Would withdrawal of counsel and the inevitable “getting up to speed” of new counsel materially delay the proceedings? If the motion to withdraw was filed at or near the eve of trial, how and to what extent would the opposing party suffer prejudice by virtue of the inevitable delay that would result?

(3) Why? What is the reason for the breakdown of the attorney/client relationship? Is the problem purely economic, or are ethical rules involved? To what extent can the attorney and client continue to work together if the motion is not granted?

Applying the “who, when and why” test to the facts of this case, we reach the following conclusions:

Who?

In this case, the defendants’ attorneys have requested leave to withdraw. The plaintiff has filed a response citing concerns about delay. The client itself has remained strangely silent during this entire process.

Never before have we encountered a situation in which MWN has sought to extricate itself from representing a client at or near the time of trial. In our experience, the attorneys sent to this court by MWN have always displayed an appropriate level of professionalism and respect for the process and this court. In short, there is nothing that would lead us to believe that MWN’s petition to withdraw was filed as part of “legal gamesmanship” or to gain some tactical advantage in the above-referenced case.

In addition, the party “objecting” to MWN’s withdrawal is not a client of MWN but is instead an opposing party. While we recognize that opposing parties do have standing to object to a withdrawal that could cause delay, we also recognize that an opposing party could conceivably benefit by forcing a matter to trial when there has been a fracture between the other side’s counsel and client. In addition, we view the prejudice of delay that could be suffered by an opposing party to be less significant than the potential prejudice that an attorney’s own client could suffer. For these reasons, we will afford less weight to an objection to withdrawal filed by an opposing party than we would to an objection filed by an attorney’s client.

In this case, we have considered the fact that MWN’s own client has not objected to withdrawal. We have also considered the fact that MWN does not have a history of adversely affecting litigation before this court via last-minute motions to withdraw. While we view plaintiff’s concern about delay to be legitimate, we do not view plaintiff’s prejudice flowing from delay to be a determinative factor in our decision.

When?

MWN’s petition to withdraw was filed in October of 2010 at a time when discovery was still progressing. To be sure, the discovery deadline set forth in our scheduling order of January 6, 2011 has now expired. However, tidal is not imminent. Jonestown Bank and Trust Company has filed a motion for summary judgment that will likely require several months to resolve. Even after a decision is rendered regarding Jonestown Bank’s motion for summary judgment, the parties will still need to list this case for trial and proceed to a pre-trial conference.

We do not view MWN’s motion to withdraw as a last-minute eve-of-trial request. Had MWN’s motion to withdraw been filed after a trial date had been scheduled and after plaintiff had subpoenaed witnesses and prepared its case, we would have viewed the timing of the motion as a significant factor weighing against the motion to withdraw. As it stands, we do not view the timing of MWN’s motion to withdraw as a reason to defeat that motion.

Why?

MWN sets forth two reasons in support of its motion to withdraw. The first involves finances and the second involves cooperation. According to MWN, the Dommels now owe $70,000 in counsel fees and have failed to make installment payments in accordance with MWN’s fee agreement. With respect to lack of cooperation, MWN alleges that Denise Dommel has moved and has not provided MWN with any contact information.

In its brief, plaintiff concedes that MWN has set forth sufficient grounds to support a petition to withdraw. Stripped of superfluity, plaintiff argues that the delay it would suffer outweighs any financial hardship that MWN would suffer if forced to continue its representation of the Dommels.

We conclude that MWN has set forth sufficient grounds for withdrawal. Lawyers are entitled to be paid for their services and courts should not lightly require an attorney to involuntarily provide gratuitous services. Just as important, clients owe a duty of cooperation to their lawyers. In addition to payment for services rendered, clients must remain available to answer questions, provide information and make decisions regarding the progress of litigation. When a client such as Mrs. Dommel disappears and does not even leave a forwarding address, this lack of communication can render an attorney’s job problematic.

Based upon our analysis of the “who, when and why” test, we conclude that MWN has set forth sufficient grounds to withdraw as counsel for Dommels. We will therefore be granting MWN’s motion to withdraw.

At the same time, we are sympathetic to plaintiff’s concern about delay. We are well aware that MWN’s withdrawal will require Dommels to obtain a new attorney. Inevitably, the new attorney will request additional time to “get up to speed.” As Dommels seek to hire new counsel, we want both Dommels and their new counsel to be perfectly clear about the time frames that will apply in the above-referenced litigation. Given our decision today, we will be extending the discovery deadline until May 1, 2011. We will be directing the parties to proceed with any further discovery even while we work to address the motion for summary Judgment filed by Jonestown Bank. Lest there be any confusion, we will not extend the May 1, 2011 discovery deadline absent emergency cause or unless all parties to this litigation agree. An order to effectuate this decision will be entered this date.

ORDER OF COURT

And now, February 4, 2011, upon consideration of the arguments submitted by the parties, the motion of McNees Wallace andNurick, LLC to withdraw as counsel for defendants is granted. We urge the defendants to immediately obtain new counsel. Because we recognize that new counsel will need time in order to become prepared to try this case, we will extend the discovery deadline until May 1,2011. Absent emergency cause or an agreement by the parties, we will not extend the discovery deadline beyond May 1, 2011.

      . The two mechanics’ liens claims were consolidated by order-signed by former President Judge Robert J. Eby on December 9, 2008.

      . In McVicker, the court asked whether the relationship between the attorney and client “has so deteriorated as to make impossible, not merely difficult, the cooperation between attorney and client which is vital to a continuance of that employment.” McVicker, supra at 584.

      . So we are clear, we do not accuse plaintiff of possessing this m - tive. Plaintiff’s concern about the delay is legitimate.


author: SCHMEHL, J.,

text:
    In re J.S.

      John A. Feilding, III, for appellant.

      John J. Herman, for Pennsylvania State Police.

      Dennis J. Skayhan, for Commonwealth.
    February 4, 2011
   SCHMEHL, J.,

On April 6, 2010, a warrant for emergency examination and treatment was issued against J.S. The Pennsylvania State Police executed the warrant and transported J.S. to the Reading Hospital & Medical Center emergency room. After examination, J.S. was admitted to the hospital just after midnight on April 7,2010. On April 8,2010, the Honorable Mary Ann Campbell issued an order scheduling a hearing before the mental health review officer on April 9, 2010 and appointed the public defender to represent J.S.

Pursuant to the application for extended involuntary treatment, Dr. Hema Iyer indicated that J.S. was brought to the emergency room after he reportedly made comments that he would retaliate against three co-workers by killing them. This may have been the result of delusional thinking of a persecutory nature. He has become extremely preoccupied with concerns that he is persecuted, which has adversely affected his sleep and work attendance. Dr. Iyer recommended continued in-patient hospitalization for safety while further assessment and evaluation can occur.

At the hearing on the application, the review officer determined that Dr. Iyer’s diagnosis for J.S. was psychotic disorder NOS. The testimony reiterated reports of J.S.’s expressing paranoia at work and threatening to kill certain people. There were reports that he was firing guns at imaginary intruders at his home and that he believes he is being persecuted by others who want him to kill himself. He also believed people were aiming laser beams into his home, and he has called the state police multiple times. J.S. denied thoughts of harm to himself or others and denied shooting outside. The hearing officer found that J.S. was severely mentally disabled and in need of treatment. He ordered that J.S. undergo inpatient treatment for a period of up to seven days. The review officer’s determination was not appealed by petition to the court.

On July 12,2010, J. S. filed, with the assistance of private counsel, a petition for review and expungement of mental health commitment for relief pursuant to 18 Pa.C.S.A. §6111.1 (g) and for the return of petitioner’s firearms. After a number of continuances, a hearing was held thereon on November 9, 2010. By order dated November 10, 2010, the petition was denied. Thereafter, with the assistance of a different attorney, J.S. filed a motion for reconsideration and/or re-opening of the record, which was denied, as well as an appeal to the Superior Court. The court directed J.S. to file a statement of matters complained of on appeal, which he did timely.

The evidence presented to the court on November 9, 2010 was limited to two witnesses, J.S. and Larry A. Rotenberg, M.D., and two exhibits, the application for involuntary emergency examination and treatment and the application for extended involuntary treatment and associated orders. J.S. testified that he did not threaten any co-workers at his employment nor did he ever say he would retaliate against them. lie acknowledged making a comment that he would hire P.I.’s to catch a couple of people and have them prosecuted. He denied being under the care of a psychiatrist or psychologist and denied firing weapons at any time within the last couple of years. He then corrected himself to indicate that he had fired two primers during the month of March 2010. These firearms were seized by the state police. He denied trying to harm himself and he denied making any motions like he wanted to kill himself. He never pointed the firearms at anyone. He also testified that upon his arrival to the hospital, he was seen by a Dr. Good and then Dr. Rotenberg. He claimed it was for about a half an hour.

On cross-examination by counsel for the state police, J.S. testified that he was the victim of harassment. In January, people were firing laser pointers through his windows at night and doing “annoying stuff.” He reported the incidents to the state police and also advised that a neighbor had seen tire tracks on his property. J.S. further reported things had been moved within his home. He claimed somebody was entering his home and moving things as if somebody was trying to search the house and that there were numbers written on the insides of his windows. He believed the activity may have been the result of his former stepson, and perhaps his ex-wife, being involved in drug trafficking. J.S. commented that it was his private investigator’s belief that they may have owed somebody money and that was why he was being harassed. J.S. had also reported to police that he had heard people on his roof but that he could never get outside in time to catch them. J.S. also denied threatening to kill himself or others, that he fired guns on his property at imaginary intruders, and that he was delusional. No other evidence was offered on behalf of J.S. and his petition.

Dr. Rotenberg testified that at the beginning of April he received a call and a visit from HR people at J.S.’s employer who were concerned about him and his behavior. They indicated that he had a number of rather peculiar beliefs and that he believed that three people wanted to kill him. They were concerned about his safety and the safety of others. Dr. Rotenberg then contacted Berks County’s mental health/mental retardation department and thereafter a warrant was issued.

After a two-and-a-half hour interview of J.S., Dr. Rotenberg believed that J.S. was dangerous, possibly to himself and to others, and so facilitated his admission to the psychiatric unit. Dr. Rotenberg testified that in petitioning for the 302 warrant he was relying on information given to him that J.S. had made threats to kill himself and to harm others, that he had fired guns on his property at imaginary intruders, and that he had not come out of his house for weeks at a time. In reviewing these allegations with J.S. during the interview at the hospital, Dr. Rotenberg believed that J.S. minimized the threats and emphasized threats and injustices to him. Dr. Rotenberg believed the complaints were so strange and so unusual that they just were not credible. Dr. Rotenberg testified that in addition to the interview of J.S., he contacted a counselor that J.S. had been seeing. The counselor indicated she had worried about J.S. and she thought that perhaps he had paranoid schizophrenia. She was glad he was getting psychiatric attention. Dr. Rotenberg also mentioned J.S.’s belief that people were watching him in his home, that his then-wife was somehow in on the conspiracy against him, and that someone was attempting to extort $30,000.00 out of him. He believed that people at his place of employment were involved, including a friend of fourteen years. J.S. did acknowledge to Dr. Rotenberg that he went out with a handgun into the backyard but insists he never fired it. He reiterated the belief that people were on his roof doing strange things, but by the time he got out of the house nobody would ever be there.

Dr. Rotenberg formed a diagnosis of delusional disorder, paranoid type, with persecutory delusions and personality II disorder NOS with paranoid and obsessive features. He believed J.S.’s ideas appeared to be a poorly formed delusional system with elements of depression and post-traumatic stress disorder. He also had a history of psychosis and using methamphetamine. Dr. Rotenberg believed that the fact that he was not psychotic, outside of his delusional system, was both good news and bad news — good news in the sense that he is not that sick, but bad news in that his delusional system, in combination with good intelligence, a capacity for acting out, technological talent and an ability to plan, makes him much more possibly dangerous.

On cross-examination, Dr. Rotenberg indicated that it would not surprise him if J.S. had not been medicated, aside from a sedative, because delusional disorders are not particularly responsive to any medication. He also testified that as a result of reports from J.S.’s employer, he had enough concern about the safety of J.S. and his associates that it would not have been responsible for him to ignore it, hence the request for the warrant. Upon J.S.’s arrival at the hospital and after consultation with Dr. Good, the first psychiatrist to evaluate J.S. on April 6, 2010, Dr. Rotenberg evaluated J.S. and it was the totality of the circumstances, and not just the information received from the employer, that caused Dr. Rotenberg to hospitalize J.S. On re-direct, Dr. Rotenberg testified that he had no reason to doubt the reliability of the information received from J.S.’s employer.

Pursuant to 50 P.S. §7302(a)(l), a warrant for emergency examination may be issued “upon written application by a physician...setting forth facts constituting reasonable grounds to believe a person is severely mentally disabled and in need of immediate treatment.” According to 50 P.S. §7301(a) “a person is severely mentally disabled when, as a result of mental illness, his capacity to exercise self-control, judgment and discretion in the conduct of his affairs and social relations or to care for his own personal needs is so lessened that he poses a clear and present danger of harm to others or to himself.” Clearly a report from an individual’s employer to a physician specializing in psychiatry that the individual has been expressing or manifesting signs of suicidal ideation and/or threats of harm to others, coupled with a belief of a conspiracy against him, would constitute reasonable grounds for the physician to believe that the individual poses a clear and present danger of harm to others or to himself, thereby meeting the test of being severely mentally disabled and in need of immediate treatment. As Dr. Rotenberg so testified, it would have been irresponsible of him to let the report go uninvestigated. Dr. Rotenberg reasonably relied on the reports he received that J.S. made threats of harm against others and, after evaluating J.S. and his credibility, determined that his recent actions, statement and mental state posed a clear and present danger to others which warranted his admission to the psychiatric unit and further examination.

In keeping with statutorily mandated procedure designed to protect the rights of an involuntarily committed individual, application was made to extend J.S.’s involuntary emergency treatment. In accordance with 50 RS. 7303(c), a hearing was held before a mental health review officer who found that J.S. was a severely mentally disabled individual in need of treatment. No appeal to the court was taken from this determination and, given Dr. Rotenberg’s diagnosis of the individual, the court can find no fault in the hearing officer’s determination. Based upon the testimony presented on November 9, 2010, the court, too, believed that J.S. presented a clear and present danger to himself and others at the time of the April 2010 proceedings.

Given the totality of the circumstances observed and reported by the mental health professionals, the court has no doubt that the initial warrant for emergency examination and the commitment extension for up to seven days were appropriate. J.S. was provided with all of his due process rights under the Mental Health Procedures Act, which was not challenged as unconstitutional in J.S.’s petition or at the hearing. The lack of a timely argument regarding the unconstitutionality of the process employed and the lack of a timely objection to the inadmissibility of evidence offered at trial effectively constitute waivers of these issues.

It is also noted that the statement of matters complained of on appeal, number 4, which indicates that the undersigned judge signed the Section 303 commitment, is made in error given that the order was signed by Judge Campbell, hence no conflict of interest or reason for the undersigned to recuse. Additionally, J.S. cites no authority indicating that an ineffective assistance of counsel argument should be applied to the within matter and having had his opportunity with the assistance of counsel to present his case, there is no valid reason to allow J.S. to have multiple hearings.

Finally, regarding complaint number 2 of J.S.’s amended statement of matters complained of on appeal (assuming the complaint has not been waived by its late filing), the court acknowledges that Exhibit 1 indicates J.S. arrived at the hospital at 5:16 P.M. on April 6, 2010 and was not examined until 1:45 A.M. on April 7, 2010. This written report conflicts with the testimony presented to the court by both witnesses, which testimony was not challenged. Dr. Rotenberg testified that he evaluated J.S. at about 7:30 P.M., and both witnesses testified that J.S. was first seen by Dr. Good. After this initial examination, Dr. Rotenberg was consulted and he came in to the hospital to see J.S. Allowing for travel time, it is clear that Dr. Good’s evaluation must have occurred within two hours of J.S.’s arrival at the hospital; therefore, no violation occurred.

For the foregoing reasons, the court entered its order of November 10, 2010 and denied the motion for reconsideration.


author: SIBUM, J.,

text:
    Pocono Mountain Regional Police Comm’n v. L.R. Costanzo Co., Inc.

      Harry T. Coleman, for plaintiff.

      Brace L. Coyer, for defendant.

      Nicholas Noel, Benjamin A. Nicolosi and Megan P. Maguire, for additional defendants.
    January 27, 2011
   SIBUM, J.,

This action comes before the court on additional defendant Arthur J. McHale Heating and Air Conditioning Company, Inc.’s (McHale) preliminary objections to original defendant L.R. Costanzo Company Inc.’s (Costanzo) amended joinder complaint. A brief history of the case is as follows:

Plaintiff, Pocono Mountain Regional Police Commission (PMRPC), and general contractor Costanzo entered into a written contract on August 31, 2001 for the construction of a new police headquarters including the creation of a roofing system. Plaintiff filed a complaint against Costanzo on September 28, 2009 for breach of contract, breach of warranty, breach of duty of good faith and fair dealing, and negligence in regards to defects discovered after the construction of the police department’s new roofing system. Plaintiff alleges Costanzo, as general contractor, was liable to plaintiff for failing to provide an acceptable, leak-proof, structurally sound, and non-defective roof system. Costanzo filed a petition for leave to join additional defendants on June 8, 2010. By order dated June 11, 2010, the petition was granted and G. & Albert Consultants, P.C., Murray Jay Miller Architecture, and Arthur J. McHale Heating and Air Conditioning Company, Inc. were named as additional defendants. Costanzo filed its joinder complaint on June 23, 2010, and additional defendant Murray Jay Miller Architecture (Miller Architecture) filed preliminary objections on September 13, 2010. Costanzo then filed a three-count amended joinder complaint on September 22, 2010, rendering Miller Architecture’s preliminary objections moot.

In count III of the amended joinder complaint, Costanzo claims that McHale was retained by plaintiff as prime contractor responsible for the installation of the heating, ventilation and air conditioning system in the construction project. Costanzo alleges that McHale’s work was not performed in a timely manner which caused the building to be enclosed without an operable air conditioning system. As a result, Costanzo claims the delay contributed to an increased moisture problem throughout the entire building. Furthermore, Costanzo argues that McHale installed duct work in the attic instead of above the corridor ceiling as specified in the construction project’s plans and specifications. Therefore, Costanzo contends McHale’s failure to comply with the plans and specifications resulted in the damage to the building. Costanzo also avers that each of the additional defendants are solely liable to the plaintiff, or, in the alternative, the additional defendants are jointly and severally liable to Costanzo or liable over to Costanzo by way of contribution and/or indemnification.

Additional defendant McHale then filed preliminary objections on October 13,2010 arguing the untimely filing of the amended joinder complaint by Costanzo. Only Costanzo, McHale and Miller Architecture filed briefs in accordance with the local rules of court, yet counsel for all parties argued their respective positions before the court on December 6,2010. We arc now prepared to decide this matter.

DISCUSSION

McHale first argues that they were prejudiced when they were joined in excess of the sixty day limit imposed by Pennsylvania Rule of Civil Procedure §2253. Specifically, McHale maintains that the contract at issue was entered into by plaintiff and defendant Costanzo more than nine years ago and therefore, memories of the witnesses may have faded, discovery may have already been commenced to prejudice McHale, and evidence may no longer exist which could exonerate McHale. Therefore, McHale requests this court dismiss the amended joinder complaint.

Pennsylvania Rule of Civil Procedure §2253, relating to time for filing a joinder complaint to join additional defendants, provides in part as follows:

(a) Except as provided by Rule 1041.1(e) [asbestos litigation], neither a praecipe for a writ to join an additional defendant nor a complaint if the joinder is commenced by complaint, shall be filed later than (1)
(1) sixty days after the service upon the original defendant of the initial pleading of the plaintiff or any amendment thereof, or
(2) the time for filing the joining party’s answer as established by Rule 1026, Rule 1028 or order of court,
whichever is later, unless such filing is allowed by order of the court or by the written consent of all parties approved by and filed with the court. Pa.R.C.P. §2253(a). The rule also provides that while only the plaintiff may object to joinder on the ground that the joining party has not shown a reasonable justification for its delay in commencing the proceeding, “any person not previously a party who is joined as an additional defendant may object to the joinder by filing preliminary objections asserting prejudice or any other ground set forth in Rule 1028.” Pa.R.C.P. §2253(b), (c).

Recent amendments to Pa.R.C.P. §2253 seem to abridge the requirements put forth in Kovalesky v. Esther Williams Swimming Pools, 497 A.2d 661 (Pa. Super. 1985), which stated that a petition for late joinder by an original defendant must contain:

(1) some reasonable justification or excuse for the delay;
(2) a statement of the facts alleged to render the proposed additional defendant alone liable, or liable with, or liable over to defendant, or liable to the defendant on a proper cross claim; and (3) allegations that the late joinder will not be prejudicial to the proposed additional defendant. Kovalesky, 497 A.2d at 665 (emphasis added).

Specifically, the amended rule seems to indicate that the burden to show cause before the court can issue an order to join a party after the sixty day limit no longer exists, and that the matter is within the discretion of the court. However, this amendment to the rules does not countermand Prime Properties Development v. Binns, 580 A.2d 405 (Pa. Super. 1990), which held that a late joined party may still challenge their joinder by filing preliminary objections to the joinder complaint, since the initial procedure involves only the parties of record at the time. In fact, the rule specifically states that a late joined party may object on the grounds of prejudice. Pa.R.C.P. §2253(c).

In this case, plaintiff filed its complaint on September 28, 2009 and later filed a praecipe to reinstate complaint on November 13,2009. A copy of the pleading was served by original process on defendant Costanzo on November 30, 2009. Costanzo filed its joinder complaint on June 23, 2010, a period of almost seven months after service of plaintiff’s complaint. Costanzo later filed an amended joinder complaint on September 22,2010, a date of almost ten months from the date of service of plaintiff’s complaint. From the clear language of the rules, Rule 2253 expressly provides sixty days from the date of service of the original complaint to file a joinder complaint and does not provide for a delay in filing. Neither joinder complaint was filed within the sixty day period and McHale asserts that they are prejudiced by this delay. Although Costanzo did not join McHale in a timely manner as required by the rules of civil procedure, we do not find that McHale has been prejudiced by the late joinder.

The court may allow late joinder upon a showing that no prejudice exists against the party being joined. Upon review of the record and arguments presented by counsel at oral argument, we do not find any prejudice to McHale. In this case, after the filing of plaintiff’s complaint, the parties attempted to negotiate a settlement of this matter without further litigation. The parties notified and invited McHale to participate in the negotiations, but Mcliale did not. The parties have not yet begun the discovery process or retained expert witnesses. There have been no depositions taken or discovery deadlines set. We therefore find that McHale will not be prejudiced by this late joinder.

In reaching our decision, we are cognizant of this court’s decision in the matter of Henning v. Great Wolf Lodge of the Poconos, LLC, et al., 5437 Civil 2007, (opinion filed September 9, 2009), but find the instant case distinguishable.

In Henning, the ITonorable Linda Wallach Miller of this court held that a twelve month delay in filing a joinder complaint substantially disadvantages an additional defendant in its investigation of the case as well as its ability to duplicate all conducted discovery. Judge Miller explained:

We have already granted amotion by plaintiff to compel defendant Kraemer Brothers to respond to discoveiy requests. This indicates that not only discoveiy is well underway, but that the plaintiffs are ready to proceed and are waiting on Kraemer Brothers. To add another defendant that may require extended time for discovery would be prejudicial to both parties. We ordered in May that discovery deadlines be set on a staggered schedule, with the first deadline set for November 30, 2009, and with expert reports due on January 30, 2009. While other parties to this action have already had months since that order to find experts and have those experts prepare reports, [additional defendant] Floor Systems Northeast would be facing a hard deadline with not even half the amount of time in which to comply. If we permit this late joinder, additional defendant will suffer prejudice in that it would be denied the proper opportunity to conduct early discovery, enlist experts, assemble evidence and research and prepare for trial in light of these deadlines.

Here, the facts of our case are clearly distinguishable. Unlike the parties in Henning, the parties here have not expended any time finding experts or having experts prepare reports. There have been no discoveiy deadlines set nor will McHale be denied the proper opportunity to conduct early discovery, enlist experts, assemble evidence or research and prepare for trial since none of the parties have taken this opportunity yet. We therefore find that McHale will not be prejudiced by this late joinder and shall deny McHale’s preliminary objection.

McHale further contends in its preliminary objections that the four-year statute of limitations has expired, thus requiring the joinder complaint be dismissed. Specifically, McHale argues that it cannot be solely liable to plaintiff as alleged in paragraph 32 of Costanzo’s amended joinder complaint since the joinder had been attempted beyond the applicable four-year statute of limitations. Therefore, McHale argues the claim against it should be stricken. Inasmuch as the defense of the bar of the statute of limitations can be asserted only in a responsive pleasing as new matter under Pa.R.C.P. 1030, and not as a preliminary objection, we shall deny McHale’s preliminary objection on this basis, as well. Pa.R.C.P. 1030; see also note to Pa.R.C.P. 1028(a)(4).

Accordingly, we enter the following order.

ORDER

And now, January 27, 2011, the preliminary objections of additional defendant Arthur J. McHale Heating and Air Conditioning Company, Inc. to the amended joinder complaint filed by original defendant L.R. Costanzo Company, Inc., are hereby denied. Additional defendant Arthur J. McHale Heating and Air Conditioning Company, Inc. is hereby given twenty (20) days in which to file an answer to the amended joinder complaint.

      . Paragraph 32 of Costanzo’s amended joinder complaint reads as follows: “If the averments found in plaintiff’s complaint are found to be true, which defendant specifically denies, then each of the additional defendants are solely liable to the plaintiff.”


author: MILLER, J.,

text:
    US Bank National Assoc. ND v. Seeley

      Yale D. Weinstein, for plaintiff.

      Doane B. Seeley, pro se.
    January 26, 2011
   MILLER, J.,

US Bank (“plaintiff*) filed a complaint on October 4,2010, alleging it furnished consumer credit to Doane B. Seeley (“Seeley”) by means of a credit card. Plaintiff alleged it kept accurate running records of all debits and credits to this account and mailed monthly statements to Seeley. Additionally, it asserted that Seeley made payments for many months on account of the billing statement or retained the statement without payment. Plaintiff claims relief on an account stated theory in the amount of $7,601.41.

Seeley, acting pro se, filed preliminary objections to plaintiff’s complaint on November 9, 2010. He argues that plaintiff’s complaint fails to conform to law or rule of court. He cites several deficiencies in his preliminary objections.

Pennsylvania Rule of Civil Procedure 1028(a)(2) permits a party to file preliminary objections for “failure of a pleading to conform to law or rule of court or inclusion of scandalous and impertinent matter.” In considering preliminary objections, “all well-pleaded and material facts averred in the complaint, as well as all reasonable inferences deductible therefrom, must be accepted as true.” Wurth by Wurth v. City of Philadelphia, 584 A.2d 403, 407 (Pa. Cmwlth. 1990). However, we need not accept as true conclusions of law, unwarranted inferences from the facts, argumentative allegations, or expressions of opinion. Penn Title Ins. Co. v. Deshler, 661 A.2d 481, 483 (Pa. Cmwlth. 1995).

First, Seeley argues that plaintiff has presented no itemized account showing all dates of charges, fees, credits and other charges pursuant to Pa.R.C.P. 1019(f). Rule 1019(1) states, “[a]verments of time, place and items of special damages shall be specifically stated.” This is an incorrect basis for objection to the damages requested in plaintiff’s complaint, which are general damages for monies owed under a credit card agreement. Pa.R.C.P. 1019(f) pertains to special damages which are defined as “[t]hose which are the actual, but not the necessary, result of the injury complained of...which do not arise from wrongful act itself, but depend on circumstances peculiar to the infliction of each respective injury.” Black’s Law Dictionary, 6th ed. (West’s 1990). However, general damages are “damages that the law presumes follow from the type of wrong complained of.” Black’s Law Dictionary, 7th ed. (West’s 1999). Since plaintiff alleges damages which follow the type complained of, that being an account stated theory from the use of a credit card, Pa. R.C.P. 1019(f) is inapplicable. Seeley’s preliminary objection on this basis is overruled.

Second, Seeley argues that plaintiff’s complaint fails to conform to law or rule of court pursuant to Pa. R.C.P. 1019(i) because it contains no signed contract or agreement bearing his signature.

An account stated is “an account in writing, examined and accepted by both parties, which acceptance need not be expressly so, but may be implied from the circumstances.” Robbins v. Weinstein, 17 A.2d 629, 634 (Pa. Super. 1941); Citibank, (SD), N.A. v. Ambrose, 13 Pa. D. & C. 5th 402 (Pa. Com. Pl. 2010). To properly plead the elements of an account stated requires that plaintiff must allege that there had been a running account, that a balance remains due, that the account has been rendered upon the defendant and that the defendant has assented to the account and that a copy of said account is attached to the complaint. Rush’s Service Center Inc. v. Genareo, 10 Pa. D. & C. 4th 445, 447 (Pa. Com. Pl. 1991) (citation omitted). The acceptance need not be express but it may be implied from the circumstances. Id. (citation omitted)

Here, Seeley objects to plaintiff’s complaint for failure to attach a signed contract or agreement to its complaint in violation of Pa.R.C.P. 1019(i). However, in this case, plaintiff does not plead an action based upon breach of contract; plaintiff’s action is premised on an account stated theory. Furthermore, plaintiff has pleaded the requisite elements of an account stated. In accepting all well-pleaded and material facts averred in the complaint, as well as all reasonable inferences deductible therefrom, as true we find: plaintiff averred it furnished consumer credit to Seeley by means of a credit card; plaintiff kept accurate accounting records; plaintiff mailed monthly statements to Seeley for the account, and, plaintiff attached a copy of the most recent statement to its complaint. Plaintiff alleges Seeley had made payments for many months on account of the billing statement or retained the statement without payment. Moreover, Seeley assented to the account by failing to object and retaining the statement of account. Based upon this pleading, we find that plaintiff has satisfactorily pleaded a cause of action for an account stated theory of recovery. Seeley’s preliminary objection on this basis is overruled.

Next, Seeley complains that plaintiff’s complaint lacks material facts on which the cause of action is based pursuant to Pa.R.C.P. 1019(a). Seeley does not specify the basis of his objection on these grounds.

In Pennsylvania, a plaintiff must state “the material facts on which a cause of action is based...in a concise and summary form.” Pa.R.C.P. 1019(a). These facts must advise the defendant of the claim being asserted as well as the essential facts to support it. Estate of Swift v. Northeastern Hospital of Philadelphia, 690 A.2d 719 (Pa. Super. 1996).

The Pennsylvania Rules of Civil Procedure provide, in pertinent part, “(a) material facts on which a cause of action or defense is based shall be stated in a concise and summary form [and]...(h) [wjhcn any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written.” Pa.R.C.P. 1019 (a),(h). A thorough review of the complaint reveals plaintiff conformed to this rule. Plaintiff’s averments are set forth in a concise and summary form and state the essential elements of an account stated theory of recovery. We have broad discretion in determining the amount of detail that must be averred since the standard of pleading set forth in Rule 1019(a) is incapable of precise measurement. United Refrigerator Co. v. Applebaum, 410 Pa. 210, 213, 189 A.2d 253, 255 (1963). We find that plaintiff’s complaint contains material facts which are set forth in a concise and summary form in compliance with Rule 1019 (a). Any further details of the specific charges may be disclosed through the discovery process. Therefore, we will overrule Seeley’s preliminary objections in this regard.

Seeley also claims the verification attached to plaintiff’s complaint is insufficient because it does not set forth the source of Tamara Lockridge’s information as to the matters contained in the complaint. Pa.R.C.P. 1024 states, in pertinent part:

(a) [e] very pleading containing an averment of fact not appearing of record in the action or containing a denial of fact shall state that the averment or denial is true upon the signer’s personal knowledge or information and belief and shall be verified. The signer need not aver the source of the information or expectation of ability to prove the averment or denial at the trial. A pleading may be verified upon personal knowledge as to a part and upon information and belief as to the remainder.
(c) The verification shall be made by one or more of the parties filing the pleading unless all the parties (1) lack sufficient knowledge or information, or (2) are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing the pleading. In such cases, the verification may be made by any person having sufficient knowledge or information and belief and shall set forth the source of the person’s information as to matters not stated upon his or her own knowledge and the reason why the verification is not made by a party. Pa.R.C.P. 1024 (emphasis added).

Our Superior Court has held that verification by a paralegal for the debt collection company, having no personal knowledge, is insufficient and does not meet the requirements of this rule. Atlantic Credit & Finance, Inc. v. Giuliana, 829 A.2d 340 (Pa.Super. 2003). Here, however, the verification was signed by a legal coordinator for plaintiff, sworn to be true and correct to the best of her knowledge and belief. As plaintiff is not a natural person, we find Tamara Lockridge signed as the authorized representative of US Bank. Hence, Rule 1024 (c) is not implicated by the verification because nothing indicates that US Bank lacks sufficient knowledge or information or is outside the jurisdiction and the verification cannot be obtained within the time allowed under the rules. We find the verification to be sufficient and that the verifier need not aver the source of the information pursuant to Pa.R.C.P. 1024(a). Seeley’s preliminary objection on this basis is overruled.

In his final preliminary objection, Seeley argues that he elects binding arbitration as set forth in the agreement or contract. Plaintiff filed an answer indicating it does not object to Seeley’s request to submit the matter to arbitration. Accordingly, the matter is moot.

In light of the foregoing, we enter the following order.

ORDER

And now, January 26, 2011, following oral arguments and after a review of the briefs submitted, the defendant’s preliminary objections are dismissed. Defendant shall have twenty (20) days from the date of this order to file a responsive pleading that complies with the Pennsylvania Rules of Civil Procedure.


author: MINORA, J,

text:
    Zummo v. City of Scranton

      Robert J. Murphy, for plaintiffs.

      John F. Kennedy, for defendant.
    February 10, 2011
   MINORA, J,

I. INTRODUCTION

Currently before the court are two matters. First, is defendant’s motion to amend its answer and new matter to include the affirmative defense of a general release executed in a similar but prior action against the defendant. Second, is defendant’s motion for summary judgment which is based on the substantive merits of the general release at issue.

Obviously, the court must first decide the motion to amend. If that motion is granted, we can then consider the merits of defendant’s motion for summary judgment based on the reneral release. If the motion to amend is not granted, the summary judgment motion becomes moot.

By way of background, this current action filed to 2005 Civil 1369 is for damages caused to plaintiffs’ property at 1524 Monsey Avenue in the City of Scranton. Plaintiffs allege that storm water runoff caused by a storm water drainage system owned by the City of Scranton has caused progressive damage to their home. This current action was filed November 2, 2005. An answer and new matter filed by the City of Scranton with prior counsel on November 18, 2005 did not raise a general release as an affirmative defense. The defendant is now attempting to amend the new matter to include the general release some five years later. Plaintiffs allege prejudice at this point of the proceedings.

In addition, plaintiffs also argue that the general release executed on January 23, 2002 which ended a similar case filed to this court at 95 Civil 4860 did not contemplate release of future damages. The plaintiffs also claim this current case is for a continuing and progressive nuisance caused by the failure of the defendant to undertake remedial measures to abate storm water runoff as allegedly promised in consideration for twenty-five thousand ($25,000.00) dollars and the general release of January 23, 2002. In short, the plaintiffs also allege that any release entered into was in consideration of the City of Scranton taking corrective measures to abate the insufficient storm water drainage system it owned and known colloquially as “Meadowbrook.”

Against that backdrop, the instant motions have been thoroughly briefed and argued and are ripe for disposition.

We will deal with them in seriatim as outlined above.

II. Issues

A. Should the defendant City of S cranton be allowed to amend its answer and new matter to include the affirmative defense of a general release executed on January 23,2002 which ended a prior and similar action filed to this court at 95 Civil 4860?

B. if the general release referenced above is allowed as an affirmative defense does it as a matter of law support defendant City of Scranton’s motion for summary judgment and act as an absolute bar to this current action?

IIT. Discussion

A. Defendant City of Scranton s Motion to Amend its New Matter to Include the Affirmative Defense of General Release.

Pa. R.C.P. 1033 indicates that:

a party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted. (Emphasis added)

Leave to amend a pleading lies within the sound discretion of the trial court, and the right to amend should be liberally granted at any stage of the proceedings unless there is an error of law or resulting prejudice to the adverse party. Werner v. Zazyczny, 545 Pa. 570, 681 A.2d 1331 (Pa. 1996).

This is so because liberal amendment allows the court to secure a determination of cases on their merits. Beckner v. Copeland Corp., 785 A.2d 1003 (Pa. Super. 2001), reargument denied, appeal denied 805 A.2d 518 (Pa. 2002).

Mere undue delay in and of itself is not grounds for disallowing an amendment. Carpitella by Carpitella v. Consolidated Rail Corp., 533 A.2d 762 (Pa. Super. 1987). However, eleventh hour surprise or loss of witnesses could constitute the prejudice required to disallow an amendment. Capobianchi v. BIC Corp., 666 A.2d 344 (Pa. Super. 1995), appeal denied 674 A.2d 1065 (Pa. 1996).

When we speak of prejudice, such “prejudice” must be more than mere detriment to the other party because any amendment requested certainly will be designed to strengthen the legal position of an amending party and correspondingly weaken the position of the adverse party. Capobianchi v. BIC Corp., supra.

Even the mere fact that the adverse party has expended time and effort in preparing to try the case against amending party is not such prejudice as to justify denying the amending party leave to amend by asserting an affirmative defense which has substantial likelihood of success on the merits. Capobianchi v. BIC Corp., supra.

Indeed, our appellate courts have allowed the amendment of an answer and new matter to include the affirmative defense of release on the equivalent of the trial court’s own motion. Holmes v. Lankenau Hospital, 627 A.2d 763 (Pa. Super. 1993).

So it is against the backdrop of these principles that we must look at the particulars of this current case.

In the current matter, there is no “eleventh hour” element of surprise since this case, as of yet, has no firm assigned trial date. Moreover, while the wife plaintiff has passed away, Mr. Zummo is alive and indeed he was a party to the release at issue and knows of its existence. Prior counsel is also available, if necessary. Finally, the release at issue was requested several times in discoveiy. (i.e. at a deposition on February 14, 2006 and in interrogatories and a request for production of documents served on plaintiffs on May 2, 2008. See Exhibit “A” to defendant’s motion to amend new matter).

Clearly, the type of “prejudice” and “surprise” necessary to overcome the liberal allowance of amendments as per Pa. R.C.P. 1033 does not exist in this case.

Therefore, we will allow defendant to amend its answer and new matter to include the affirmative defense of release and then also decide the impact of the general release on its merits. See Beckner v. Copeland Corp., surpa.

B. Defendant City of Scranton’s Motion for Summary Judgment Based on the Affirmative Defense of General Release

The standards for ruling on a motion for summary judgment are well defined’.

Pa. R.C.P. 1035.2(1) and (2) indicates in pertinent part that:

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

Under the rules, a motion for summary judgment is based on an evidentiary record that entitles the moving party to a judgment as a matter of law. In considering the merits of a motion for summary judgment, a court views the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving paity.

Finally, the court may grant summary judgment only where the right to such a judgment is clear and free from doubt. Toy v. Metropolitan Life Ins. Co., 593 Pa. 20, 928 A.2d 186 (Pa. 2007); LJL Transp., Inc. v. Pilot Air Freight Corp., 599 Pa. 546, 962 A.2d 639 (Pa. 2009); Pilchesky v. Gatelli, 12 A.3d 430 (Pa. Super. 2011).

Keeping those principles in mind, we now examine the impact of the general release at issue.

As we indicated, this matter arises out of a complaint filed by plaintiffs, Salvatore Zummo and Dorothy Zummo, against the City of Scranton on November 2, 2005 and docketed at 2005 Civil 1369 (See Exhibit “A” to defendant’s motion for summary judgment).

In their complaint, plaintiffs allege that the City of Scranton owned the storm water drainage system running through the plaintiffs’ property, which intermittently, during times of moderate and heavy rainfall, caused damage to plaintiffs’ property (Exhibit “A” to defendant’s motion for summary judgment, paragraph 3).

Plaintiffs’ allege that the City of Scranton has collected and channeled such waters in a concentrated fashion through plaintiffs’ property, constituting a series of continuing trespasses and a continuing nuisance to the plaintiffs, resulting in structural damage, loss of value of plaintiffs’ property and loss of use and enjoyment of property (Exhibit “A” to defendant’s motion for summary judgment, paragraph 4).

Plaintiffs had previously filed a substantially similar civil action complaint against the City of Scranton on January 31,1997 docketed at 95 Civil 4860 (See Exhibit ‘"B” to defendant’s motion for summary judgment). The allegations are virtually identical to the 2005 complaint.

In the 1997 complaint, as in the 2005 complaint, plaintiffs allege that there was a dangerous condition consisting of a storm drainage system owned, controlled and maintained by the City of Scranton adjacent to plaintiffs’ property. Plaintiffs alleged in 1997, as they alleged in 2005, that the storm drainage system failed and channeled water onto their property causing damage and a decrease in the fair market value of the property (Exhibit “B” to defendant’s motion for summary judgment, paragraph 5).

On January 23,2002, plaintiffs signed a general release as to the City of Scranton (See Exhibit “C” to defendant’s motion for summary judgment).

The terms of the release are clear and unambiguous. In the release, plaintiffs agreed to release and “forever discharge” the City of Scranton, its agents and employees “of and from any and all claims, including attorneys fees and/or costs, claims and demands whatsoever in law or equity; or otherwise, which against the said Releasees, Releasor now has will have or ever had arising out of the alleged incidents with regard to a storm drainage system called the ‘Meadowbrook’ and any loss whatsoever and damage to their property located at 1524 Monsey Avenue, Scranton, Pennsylvania (See Exhibit “C” to defendant’s motion for summary judgment). (Emphasis added).

The release stated that it was “agreed that this is a foil and final settlement by which Releasor is giving up every right which he/it now has, ever had or may ever have against any of the parties herein released by reason of the facts and circumstances set forth in the above-mentioned lawsuit” (See Exhibit “C”, supra.). (Emphasis added).

Further, the 1997 complaint was settled for twenty-five thousand ($25,000.00) dollars and a praecipe for discontinuance and discontinuance was filed on January 28,2002 settling, ending and discontinuing the 1995 action with prejudice (See Exhibit “E” to defendant’s motion for summary judgment).

Most compelling is the fact the general release, which speaks for itself, contains no references to any preservation of any future claims by the plaintiffs against the City of Scranton for failure to implement or complete the Meadowbrook Flood Control Project in any set time frame or ever. This is a condition the parties could have freely bargained for in their release but did not. Absent that, we are bound by the all inclusive language and the finality of the general release at issue. There are no limitations in the release at issue in any time-line. It bars all claims against the City of Scranton including future claims such as the one at issue in the present case. The limiting interpretations of this release urged upon the court by plainti ffs are totally unsupported by the text and language of the release.

In Pennsylvania, it is well settled that the effect of a release is to be determined by the ordinary meaning of its language. Taylor v. Solberg, 566 Pa. 150, 778 A.2d 664 (Pa. 2001); Republic Insurance Company v. Paul Davis Systems, 543 Pa. 186, 670 A.2d 614 (Pa. 1995). The enforceability of settlement agreements is governed by principles of contract law. Mazella v. Koken, 559 Pa. 216, 739 A.2d 531 (Pa. 1999). Courts will enforce a settlement agreement if all its material terms have been agreed upon by the parties. Century Inn, Inc. v. Century’ Inn Realty, 516 A.2d 765 (Pa. Super. 1986). A settlement agreement will not be set aside absent a clear showing of fraud, duress, or mutual mistake. Rago v. Nace, 460 A.2d 337 (Pa. Super. 1983). No such allegations are made by plaintiffs in this case.

The absence of any limiting terms or language in a general release was addressed by our Supreme Court when it instructed us that parties with possible claims may settle their differences upon such terms as are suitable to them. They may include or exclude terms, conditions and parties as they can agree. In doing so, they may yield, insist or reserve such right as they chose. If one insists that to settle, the matter must end then and forever, as between them, they are at liberty to do so. They may agree for reasons of their own that they will not sue each other or any one for the event in question. However, improvident their agreement may be or subsequently prove for either party, their agreement, absent fraud, accident or mutual mistake, is the law of their case. Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (Pa. 1989); Pennsbury Village Associates, LLC v. Aaron McIntyre, 608 Pa. 309, 11 A.3d 906, (Pa. 2011).

The practical logic behind this line of reasoning is obvious. If such an all-inclusive and unambiguous general release such as the one at issue in this case can be nullified or circumvented, then every written release and every written contract or agreement of any kind can also be nullified or circumvented. This would be so no matter how clear and pertinent and all-inclusive the language. Allowing such latitude would mean binding documents can be set aside whenever one of the parties has a change of mind or whenever there subsequently occurs a change of circumstances which were unforeseen, or there were after-discovered injuries, or the magnitude of a releasor’s injuries was unexpectedly increased, or plaintiff made an inadequate settlement. See Buttermore v. Aliquippa Hospital, supra.; Pennsbury Village Associates, LLC v. Aaron McIntyre, supra, and Emery v. Mackiewicz, 429 Pa. 322, 240 A.2d 68 (Pa. 1968).

There is no doubt and it is absolutely clear that the 1995 case’s general release in this case is unambiguous and it represents a comprehensive release of all claims against the City of Scranton including future claims for any storm water runoff damages attributable to the Meadowbrook storm water drainage system. There is no limiting language in the general release and as a matter of law it totally bars and precludes plaintiff from asserting their claims in this current action. The plaintiff-executed general release is also the law of this case. Said release governs the legal relationship between the parties both in the 1995 action as well as this current action.

Accordingly, we are bound to grant defendant’s motion for summary judgment and dismiss this current action with prejudice.

An appropriate order follows.

ORDER

And now, February, 2010, upon consideration of defendant’s motion to amend its answer and new matter to include the affirmative defense of general release and defendant’s motion for summary judgment based on the general release, it is hereby ordered and decreed:

(1) Defendant’s motion to amend its answer and new matter to include the affirmative defense of general release is granted.

(2) Defendant’s motion for summary judgment based on the general release is granted and plaintiffs’ current complaint filed to the above term and number is dismissed with prejudice.

      . An amendment is also disallowed if it is against a positive rule of law. Burger v. Borough of Ingram, 697 A.2d 1037 (Pa. Cmwlth. 1997).

      . Not to be lost in this discussion is the fact that identical 1999 e - pert reports as to damages from John J. Lavelle dated July 30, 1999 have been submitted in both actions (See Exhibit “D” to defendant’s motion for summary judgment).


author: ZULICK, J.,

text:
    A Pocono Country Place Property Owners Assoc. Inc. v. Sterlin

      C.P. of Monroe County,
    no. 12345 CV 2009.

      Gregory D. Malaska, for plaintiff.

      Joseph S. Wiesmeth, for defendants.
    January 24, 2011
   ZULICK, J.,

This matter comes before the court on plaintiff’s motion for summary judgment. Plaintiff, A Pocono Country Place Property Owners Association, Inc., (the “Association”) commenced these actions seeking to recover from defendants for failure to pay property assessments required from members of the Association. The actions were instituted separately and have not been consolidated. Because the issues in the two cases are identical, I analyze them as parts of one opinion here.

The association asserts that defendants are required to pay assessments authorized by the Uniform Planned Community Act (the “UPCA”), 68 Pa.C.S. § 5101, et seq., and the bylaws of the association, of which defendants are members. The Association claims defendants have failed to pay the assessments. Defendants admit that the assessments remain unpaid, but attribute this to the fault of the association. The Association contends that there exist no genuine issues of material fact and that it is entitled to judgment as a matter of law.

The association filed complaints against defendants on January 21, 2010. On February 19, 2010, defendants filed separate sets of preliminary objections to the association’s complaint. The association filed answers as well as preliminary objections to defendants’ preliminary objections on March 16, 2010. The parties stipulated to withdrawal of all preliminary objections on March 25, 2010; the court ordered them stricken on March 29,2010; and defendants separately filed answers and new matter on April 8, 2010. The Association filed separate replies to defendants’ new matter on April 16, 2010. On October 15, 2010, the Association filed motions for summary judgment to which defendants filed answers and new matter on November 12, 2010. The parties submitted briefs and argument was held on December 8, 2010.

DISCUSSION

The Pennsylvania Rules of Civil Procedure permit a party to move for summary judgment after the close of pleadings. Pa.R.C.P. 1035.2. Summary judgment is appropriate only in those cases in which: (1) the record shows that there is no genuine issue of material fact, and (2) the moving party is entitled to judgment as a matter of law. Erie Ins. Co. v. Abbott Furnace Co., 972 A.2d 1232, 1237 (Pa. Super. 2009). Summary judgment is therefore proper only when the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. Lance v. Wyeth, 4 A.3d 160, 163 (Pa. Super. 2010).

The moving party has the burden of proving that no genuine issues of material fact exist. A fact is material if it directly affects the disposition of a case. Windber Area Authority v. Rullo, 387 A.2d 967, 970 (Pa. Cmwlth. 1978) (citation omitted). The trial court must examine the record in a light most favorable to the nonmoving party and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Moyer v. Teledyne Cont’l Motors, Inc., 979 A.2d 336, 342-43 (Pa. Super. 2009) (citation omitted). The burden is therefore placed upon the moving party to prove that there is no issue of material fact. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 204, 412 A.2d 466, 468-69. In sum, only when the facts are so clear that reasonable minds cannot differ, may a trial court properly enter summary judgment. Lance, 4 A.3d at 163.

I. Issues of Material Fact

Several issues of material fact make summary judgment unavailable in this case. First, defendants argue that $75.00, and not the $150.00 claimed by the Association, is the correct late fee to be assessed to each property that is delinquent in assessment payments. Defendants base their argument on the $75 figure provided by a 1994 Resolution under Article 10, Section 1 of the bylaws. Rosegas brief, page 3; Rosegas reply to new matter, exhibit “B.” In its reply brief, the Association argues that the $ 15 0 figure was authorized by a 2007 resolution of the board. However, that resolution is not part of the record. See association reply brief, page 4 (mentioned but not attached). Thus, an issue of material fact exists as to what late fee may be assessed for delinquent dues.

Secondly, Rosegas and Sterlin have alleged that their dues were current on their improved properties. Defendant’s answer to plaintiff’s motion for summary judgment, paragraph 77. Despite being current, they allege that the Association prevented them from registering their tenants, and assessed a fine against them “for failing to register tenants.” Id. paragraph 78. This alleged “Catch -22” situation will have to be addressed at trial to determine whether the fine in question was properly imposed.

Thirdly, there is an issue of material fact as to which lots were originally delinquent and which lots were assessed late fees only due to overdue amounts on other lots. See 68 Pa.C.S.A. §5105(b).

Finally, in addition to the underlying charges, defendants challenge the legitimacy of the attorney’s fees claimed by the association. See Rosegas brief, page 4. Rosegas and the Sterlins claim that the $3,714.82 and $1,063.18, respectively, claimed as attorney’s fees by the Association, are unreasonable. Accordingly, several issues of material fact exist that render summary judgment unavailable here. The motion will be denied.

ORDER

And now, January 24, 2011, upon consideration of the parties’ briefs and arguments, plaintiff’s motion for summary judgment is denied.