author: PICCIONE, J.,

text:
    Mley v. Leonhardt

      C.P. of Lawrence County,
    No. 20570 of 2012, D.S.B.

      Bradley S. Dornish, for plaintiffs.

      Daniel I. Herman, for defendant.
    Sept. 22, 2014
   PICCIONE, J.,

Before this court for disposition is the petition to strike and/or open judgment by confession of judgment filed on behalf of Chris and Helga Mley (hereinafter, the “Mleys”), and the motion for partial summary judgment, motion to dismiss petition to open and/or strike, and the motion to sever, all filed on behalf of Barbara Leonhardt (hereinafter, “Leonhardt”) in the above-captioned cases.

The relevant facts are as follows: On or about November 4, 1999, the Mleys entered into an installment land contract for the purpose of purchasing residential property from Raymond E. McQuiston and Mabel V. McQuiston (hereinafter, collectively, the “McQuistons”) for One Hundred Eleven Thousand Five Hundred Dollars ($111,500.00). Pursuant to the contract, the Mleys were to make an initial down payment and to render the remaining purchase price in one hundred eighty (180) monthly installments beginning on November 1, 1999 and ending on October 1, 2014. Raymond and Mabel McQuiston passed away in March 2010 and April 2007, respectively. Raymond McQuistion appointed Leonhardt as executrix of his will. In May 2011, Leonhardt informed the Mleys she was the sole beneficiary of the Raymond E. McQuiston and Mabel V. McQuiston Revocable Trust, which contains the property interest which is the subject of the installment land contract. The Mleys began making the required monthly payments to Leonhardt from that day forward.

In October 2011, the Mleys secured a loan for the purpose of paying off the balance remaining on the installment land contract and informed Leonhardt that they intended to pay the remaining balance. Leonhardt refused to accept any prepayment by the Mleys and demanded the Mleys continue to make monthly payments until the termination date.

On February 23, 2012, the Mleys filed at case number 10217 of 2012, civil action, a complaint for declaratory judgment (hereinafter, the “declaratory judgment action”) seeking a declaration of their rights under the installment land contract. On March 2, 2012, Leonhardt filed preliminary objections to [the Mleys’] complaint. Thereafter, judgment was entered by confession against the Mleys at case number 20570 of 2012, D.SB., upon Leonhardt’s complaint in confession of judgment filed by Leonhardt alleging breaches of the terms of the installment land contract. Oral argument was held in this court regarding the preliminary objections in the declaratory judgment action on May 29, 2012. On June 27, 2012, the Mleys filed a petition to open and/or strike judgment entered by confession. On July 2, 2012, pursuant to Pennsylvania Rule of Civil Procedure 2959(b), this court issued a Rule upon Leonhardt to Show Cause why the relief requested by the Mleys should not be granted. On August 7, 2012, the Mleys presented a motion to consolidate the captioned cases, and Leonhardt presented a motion to stay the declaratory judgment action pending disposition of the confession of judgment action. By order of court and opinion dated September 18, 2012, the court granted the Mleys’ motion to consolidate, denied Leonhardt’s motion to stay, and overruled Leonhardt’s preliminary objections.

On October 9, 2012, Leonhardt filed an answer and new matter to the complaint in civil action for declaratory judgment. On October 29, 2012, the Mleys filed a reply to [Leonhardt’s] new matter to plaintiff’s complaint for declaratory judgment. The parties engaged in extensive discovery, taking a number of depositions, which are filed of record. On July 30, 2013, Leonhardt filed the motion for partial summary judgment, wherein Leonhardt argues that the Mleys’ contention that the installment land contract should be treated as a residential mortgage is unsupported by the law of this Commonwealth. On August 7, 2013, the Mleys filed an answer to Leonhardt’s motion for partial summary judgment, in which the Mleys oppose Leonhardt’s contentions. Additionally, on August 19, 2013, the Mleys filed a motion to dismiss petition to open and/or strike or to order briefing schedule and argument. On August 20, 2013, Leonhardt filed a motion to sever, in which Leonhardt requests this court sever the civil action from the confession of judgment action. Oral argument was heard on April 28, 2014, after the filing of briefs, relative to all of the aforesaid pending motions and petitions, which will be addressed seriatim.

I. Motion to Dismiss Petition to Open and/or Strike

In the motion to dismiss petition to open and/or strike (hereinafter, the “motion to dismiss”) the judgment entered against the Mleys by confession, Leonhardt argues that the Mleys have waived their right to proceed to litigation since they had never filed a brief in support of their position. Leonhardt requested that this court either dismiss Mley’s motion to strike and/or open judgment by confession of judgment or set a briefing schedule and a date for argument on the issues rose in the Mley’s motion.

Without expressly granting Leonhardt’s motion to dismiss, the court has set a briefing schedule following a pretrial conference and has scheduled a date for argument on the issues in the Mley’s motion. Therefore, the instant motion to dismiss petition to open and/or strike is hereby dismissed as moot.

II. Petition to Strike and/or Open Judgment by Confession

As stated above, judgment was entered by confession against the Mleys upon Leonhardt’s filing the complaint in confession of judgment on May 25,2012, pursuant to a provision in the installment land contract. The complaint contains the appropriate averment, as required by Pa.R.C.P. 2952(a), that judgment was not entered by confession pursuant to a consumer credit transaction. Leonhardt does not aver that the Mleys have failed to pay the requirement installments under the installment land contract; rather, Leonhardt alleges that the Mleys have failed to carry out other terms of the contract. Specifically, Leonhardt alleges that the Mleys have failed to maintain the property for agricultural purposes, which is leading to deterioration of the realty, in violation of the installment land contract.

On July 3, 2012, the Mleys filed a petition to strike and/or open judgment by confession (hereinafter, the “petition”), wherein the Mleys argue that the judgment entered by confession on May 25, 2012 is in violation to the laws of this Commonwealth. Specifically, the Mleys argue judgment by confession is prohibited in connection with a consumer credit transaction. The Mleys assert that the installment land contract into which the parties entered constitutes a consumer credit transaction, which renders the confession of judgment improper.

Initially, the court notes that judgment was entered by confession against the Mleys on May 25,2012. The Mleys received actual notice of the judgment on May 29, 2012. The Mleys then filed the instant petition on June 27,2012. Rule 2959 of the Pennsylvania Rules of Civil Procedure provides that a petition to open or strike a judgment entered by confession must be filed within thirty days after service of the judgment. Since the Mleys filed the petition within thirty days of notice of the judgment, the petition to strike and/or open judgment by confession of judgment has been timely filed.

A petition to strike a judgment entered by confession is “a common law proceeding which operates as a demurrer to the record.” Resolution Trust Corp. v. Copley Qu-Wayne Associates, 683 A.2d 269, 273 (Pa. 1996). A court may strike a confessed judgment “only for a fatal defect or irregularity appearing on the face of the record.” Id. When considering a petition to strike judgment, the court is limited to a review of the record. Id. “[I]f the truth of the factual averments contained in such record are disputed, then the remedy is by a proceeding to open the judgment and not to strike.” Id.

In contrast to the legal remedy to strike a confessed judgment, a petition to open a confessed judgment is equitable in nature, and controlled by Pa.R.C.P. 2959. Crum v. F.L. Shaffer Co., 693 A.2d 984, 986 (Pa.Super. 1997). The court may consider other evidence in the record, such as depositions, in determining whether to open a judgment entered by confession. Resolution, 683 A.2d at 273. “A judgment taken by confession will be opened in only a limited number of circumstances, and only when the person seeking to have it opened acts promptly, alleges a meritorious defense and presents sufficient evidence of that defense to require submission of the issues to the jury.” First Seneca Bank & Trust Co. v. Lauren Mountain Development Corp., 485 A.2d 1086, 1088 (Pa. 1984). Rule 2959 provides the procedure for striking or opening a judgment by confession. Pa.R.C.P. 2959. Rule 2959 provides, in pertinent part, that judgment by confession may be opened by the filing of a petition, which includes all grounds for relief. Id. The Rule continues that if a petition to strike or open a judgment by confession “states prima facie grounds for relief the court shall issue a rule to show cause and may grant a stay of proceedings.” Id. at 2959(b).

“Except as otherwise provided in this chapter [regarding the confession of judgment for possession of property], the procedure in an action to enter a judgment in ejectment for possession of real property by confession pursuant to an instrument ... authorizing such confession shall be in accordance with the rules relating to confession of judgment for money.” Pa.R.C.P. 2970. The rules relating to confession of judgment for money provide a definition of a “consumer credit transaction.” A consumer credit transaction is “a credit transaction in which the party to whom credit is offered or extended is a natural person and the money, property or services which are the subject of the transaction are primarily for personal, family or household purposes.” Pa.R.C.R 2950. A confession of judgment is prohibited “as it would apply to an instrument executed in connection with a consumer credit transaction.” Id. Note.

The Pennsylvania Superior Court in Willits v. Fryer, 734 A.2d 425 (Pa. Super. 1999), considered the scope and meaning of a consumer credit transaction. The court stated that under the plain meaning of the definition, “it appears that a transaction financing closing costs for the purchase of a residential home” comes within the meaning of a consumer credit transaction. Id. at 427. The court reasoned that “[t]he purchase of a residential home is both personal in nature and related to family and household purposes.” Id. Ultimately, the court decided that a promissory note used to secure financing on a house was considered to be a consumer credit transaction, and entering judgment by confession based upon this promissory note was prohibited. Id. at 428.

Additionally, the Superior Court in ESB Bank v. McDade, 2 A.3d 1236 (Pa. Super. 2010), found that a bank is not permitted to confess judgment in connection with residential mortgage loans. The court noted that residential mortgage loans qualify as consumer credit transactions, upon which judgment may not be entered by confession. Id. at 1242.

The Superior Court in Anderson Contracting Co. v. Daugherty, 417 A.2d 1227 (Pa. Super. 1979), specifically considered whether an installment land contract comes within the purview of Act No. 6, 41 P.S. § 404(a). In Anderson, the parties entered into an installment land contract for the purpose of purchasing residential property. Id. The defendants failed to make timely monthly payment and the plaintiff confessed judgment against them. Id. The defendants attempted to cure the default, and the plaintiff refused to accept their payment. Id. The defendants filed a petition to open or strike the confessed judgment and the trial court denied the petition. Id. On appeal, the defendant argued that “a vendee in an installment land contract for the purpose of a residential dwelling has the right to cure a default thereunder in accordance with the provisions of Act No. 6[.]” Id. at 1232.

In Anderson, just as in the instant case, “the vendee takes possession and makes periodic installment payments until the balance of the contract price is paid.” Id. at 1231. The vendor retains the legal title to the property until the contract is satisfied. Id. The Superior Court explained that “the vendor-vendee should be viewed as mortgagee-mortgagor.” Id. (citations omitted). The court stated that “we hold that for the purposes of Act No. 6 a vendor under a land installment contract will be deemed to be ‘secured by a lien upon real property[.]” Id.

Based upon the above case law, a mortgagor’s interest in real property is tantamount to a vendee’s interest in real property. The main distinction between a mortgage and an installment land contract is the time when legal and equitable title transfers from the seller to the buyer. However, the case law of this Commonwealth makes little distinction between a mortgage and an installment land contract with respect to legal proceedings that are commenced for the purpose of recovering possession of real property. As stated above, the Superior Court in Anderson held that Act No. 6 is equally applicable to installment land contracts and to mortgages, stating, “It is our opinion that the rights and remedies provided by Act No. 6, in particular, the cure provisions ...., should not be denied to a class of Pennsylvania home purchases solely because their obligation to pay the balance of the purchase price is evidenced and secured by a land installment contract as opposed to some other transaction also designed to create a security interest in real estate.” 417 A.2d at 1227, 1231. Accordingly, this court finds that the notice provisions of Act No. 6, 41 P.S. § 403, must also apply to buyers in the event of a default on an installment land contract. Consequently, since notice must be provided to the buyer, judgment may not be entered by confession pursuant to an installment land contract for the purchase of a residential dwelling. Furthermore, under these circumstances, since a vendee’s interest is equivalent to a mortgagor’s interest, an installment land contract entered into for the purposes of securing a residential property, must be determined to be a consumer credit transaction within the purview of Pa.R.C.P. 2950.

In the case sub judice, the Mleys aver and, in the complaint, Leonhardt states that the installment land contract was entered into with the Mleys for the purchase of residential property. Based upon the foregoing analysis, the instant installment land contract constitutes a consumer credit transaction, upon which confession of judgment was improperly entered pursuant to Pa.R.C.P. 2950. Further, it is also uncontroverted that the Mleys were not provided with proper notice as required under Act No. 6. These fatal defects are clear from the face of the record. As a result, this court hereby grants the Mley’s petition to strike and/ or open confession of judgment and strikes Leonhardt’s complaint for confession of judgment.

III. Motion for Partial Summary Judgment

On July 30, 2013, Leonhardt filed a motion for partial summary judgment, in which Leonhardt argues that the Mleys’ contention that the installment land contract should be treated as a residential mortgage is unsupported by the law of this Commonwealth. Leonhardt requests this court grant partial summary judgment and to rule as a matter of law that the installment land contract is not a consumer credit transaction and that 41 P.S. § 403 is inapplicable to the instant matter.

The analysis regarding the applicability of Act No. 6 and whether the instant installment land contract constitutes a consumer credit transaction has been addressed in the above petition to strike and/or open confession of judgment. The court found above that the installment land contract is a consumer credit transaction within the scope of Pa.R.C.P. 2950 and the Act No. 6 notice provisions are applicable to a vendee of an installment land contract, into which it was entered for the purpose of purchasing residential property. As such, Leonhardt’s arguments are without merit and the motion for partial summary judgment is hereby denied.

IV. Motion to Sever

Lastly, Leonhardt filed the motion to sever on August 20,2013, in which Leonhardt requests this court sever the above captioned matters. Because this court struck the complaint in confession of judgment, above, this motion is now moot. As such, the motion to sever is hereby dismissed as moot.

ORDER OF COURT

And now, this 22nd day of September, 2014, this case being before the court on April 28,2014 for oral argument on the Mley’s petition to strike and/or open judgment by confession, and on Leonhardt’s motion to dismiss petition to open and/or strike, motion for partial summary judgment, and motion to sever, with Bradley S. Domish, Esquire, appearing and representing the Mleys, and Daniel I. Herman, Esquire, appearing and representing Leonhardt, and after consideration of the arguments presented and submitted by counsel, the court hereby orders and decrees as follows:

1. The Mleys’ petition to strike and/or open judgment by confession is hereby granted pursuant to the attached opinion.

2. The complaint in confession of judgment at docket number 20570 of 2012, D.S.B is hereby stricken pursuant to the attached opinion.

3. Leonhardt’s motion to dismiss petition to open and/ or strike is dismissed pursuant to the attached opinion.

4. Leonhardt’s motion for partial summary judgment is hereby denied pursuant to the attached opinion.

5. Leonhardt’s motion to sever is hereby dismissed pursuant to the attached opinion.

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


source: Caselaw Access Project

license: Public Domain

text:
    Edgington v. Abersold

      C.P. of Lawrence County,
    No. 10570 of 2012

      Carmen F. Lamancusa, for plaintiffs.

      Jason A. Hines, for defendant.
    Sept. 24, 2014
   PICCIONE, J.,

Before the court for disposition is the motion for summary judgment filed on behalf of the defendant, Edward W. Abersold (hereinafter, the “defendant”). This case resulted from a motor vehicle accident involving the plaintiff, Ms. Sherry L. Edgington (hereinafter, the “plaintiff’), the plaintiff’s mother, Ms. Norma Jean Evans (hereinafter, “Evans”), and the defendant. The plaintiff avers that on May 17, 2010, she was a front-seat passenger in a motor vehicle, which was owned and operated by Evans. Evans was traveling north on Plank Road in New Castle, Lawrence County, Pennsylvania when she stopped at a four-way intersection at Plank Road and Maitland Lane. Evans proceeded into the intersection and continued onto Plank Road. Contemporaneously, the defendant was operating a pickup truck, which he was driving west on Maitland Lane and approaching the intersection at Plank Road and Maitland Lane. The plaintiff alleges that the defendant failed to stop at the stop sign, thereby colliding into the passenger side of Evans’ vehicle. The plaintiff avers that the collision caused Evans’ vehicle to be catapulted onto the westbound berm of Maitland Lane before coming to rest on top of the traffic stop sign for the southbound lane of Plank Road. The plaintiff was trapped inside the vehicle and had to be extricated by emergency medical service personnel.

The plaintiff alleges that as a result of the collision, she suffered severe, painful, and extensive injuries to both legs, her left shoulder and upper arm, tingling and numbness into the lower left arm, hands and fingers, neck pain, and pain in the mid back which has caused a serious bodily impairment that substantially interferes with her daily life activities. The plaintiff also alleges that she suffered and will continue to suffer from physical and mental pain, suffering, emotional damage, worry, anxiety, depression, apprehension, frustration, humiliation, embarrassment and degradation, loss of pleasure and enjoyment of life. Further, the plaintiff alleges that she has incurred and will continue to incur medical expenses as a result of her injuries as well as a loss of earnings capacity.

As aresult of the above, the plaintiff and her husband, Mr. Jeffrey Edgington (hereinafter, the “plaintiff-husband”) (hereinafter, collectively, the “plaintiffs”), filed a writ of summons on May 10, 2012 against the defendant. The defendant responded on June 25,2012 by filing a praecipe to issue a rule upon the plaintiffs to file a complaint within twenty days of service or be subject to a judgment of non-pros. On July 20, 2012, the plaintiffs filed the complaint, wherein the plaintiffs raise claims for negligence and loss of consortium on behalf of the plaintiff-husband against the defendant as a result of the accident described above. For each count, the plaintiffs claim damages of $25,000.00 plus costs, interest and delay damages. On August 10, 2012, the defendant filed an answer and new matter. In his answer, the defendant denies the plaintiffs’ allegations and demands judgment in his favor and against the plaintiffs. In the new matter, the defendant states that the plaintiffs’ claims are subject to the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law (hereinafter, the “MVFRL”) that the motor vehicle accident did not cause the plaintiffs’ injuries, which are the result of a prior or subsequent medical condition or injury; that the plaintiffs’ have failed to comply with the applicable statute of limitations; and that the plaintiffs have received sums of money in satisfaction of their claims.

On September 26, 2012, the plaintiffs filed a reply to new matter. The plaintiffs agree that their claims are controlled by the MVFRL, codified at 75 Pa.C.S.A. § 1701 et.seq. The plaintiffs also replied that the injuries and damaged alleged in the complaint are directly caused by the motor vehicle accident at issue. Furthermore, the plaintiffs asserted that they have complied with the statute of limitations and any sums of money received were not in satisfaction of their claims against the defendant but were received from State Farm Insurance Company for lost wages and medical benefits that are inapplicable to the instant case.

On September 6, 2013, the defendant filed a motion for summary judgment and brief in support of motion for summary judgment as well as a praecipe to schedule oral argument thereon. In the motion for summary judgment, the defendant argues that the plaintiff is an “insured” under the plaintiff-husband’s policy, is bound by his limited tort policy, and is, therefore, precluded from making a claim for noneconomic damages unless she can prove that she has a “serious injury” as defined by the MVFRL. The plaintiffs filed a response to the defendant’s motion for summary judgment on April 17, 2014 and a supplemental response to defendant’s motion for summary judgment and brief in opposition to defendant’s motion for summary judgment on April 25,2014. Oral argument was held in this court on April 28, 2014.

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

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

Pa.R.C.P. 1035.2.

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

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

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

As stated above, the defendant argues that the plaintiff is bound by the plaintiff-husband’s limited liability tort selection under his policy covering two vehicles he insures through the State Farm Mutual Automobile insurance Company. Pursuant to the MVRFL, a “named insured” is “[a]ny individual identified by name as an insured in a policy of private passenger motor vehicle insurance.” 75 Pa.C.S.A. § 1705(f). An “insured” is defined as any of the following: “Any individual residing in the household of the named insured who is: (1) a spouse or other relative of the named insured; or (2) a minor in the custody of either the named insured or relative of the named insured.” 75 Pa.C.S.A. § 1705(f). The MVRFL provides for the election of two tort options: limited tort and full tort. The MVRFL provides the following notice, in pertinent part, to named insureds regarding the two tort options:

A. “Limited Tort” Option — The laws of the Commonwealth of Pennsylvania give you the right to choose a form of insurance that limits your right and the right of members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy bay seek recovery for all medical and other out-of-pocket expenses, but not for pain and suffering or other nonmonetary damages unless the injuries suffered fall within the definition of “serious injury” as set forth in the policy or unless one of several other exceptions noted in the policy applies....
B. “Full Tort” Option — The laws ofthe Commonwealth of Pennsylvania also give you the right to choose a form of insurance under which you maintain an unrestricted right for you and the members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses and may also seek financial compensation for pain and suffering and other nonmonetary damages as a result of injuries caused by other drivers.

75 Pa.C.S.A. § 1705(a)(1)(A) and (B). Section 1705 also provides the following application of tort options:

The tort option elected by a named insured shall apply to all insureds under the private passenger motor vehicle policy who are not named insureds under another private passenger motor vehicle policy, in the case where more than one private passenger motor vehicle policy is applicable, to an insured and the policies have conflicting tort options, the insured is bound by the tort option of the policy associated with the private passenger motor vehicle in which the insured is an occupant at the time of the accident if he is an insured on that policy and bound by the full tort option otherwise.

Id. at 1705(b)(2).

It is uncontroverted that the plaintiff is not a named insured under any automobile policy. Rather, the plaintiff argues that she does not meet the definition of an “insured” defined by the MVRFL under the plaintiff-husband’s policy despite residing with and being married to him at the time of the accident. Instead, the plaintiff argues that since she is not an “insured” under any private passenger motor vehicle nor does she own any vehicle, the following subsection permits her to seek economic and noneconomic losses as a result of the accident:

An individual who is not an owner of a currently registered private passenger motor vehicle and who is not a named insured or an insured under any private passenger motor vehicle policy shall not be precluded from maintaining an action for noneconomic loss or economic loss sustained in a motor vehicle accident as the consequence of the fault of another person pursuant to applicable tort law.

Id. at 1705(b)(3). At the time of the accident, the plaintiff did not have a driver’s license nor did she own a vehicle. Consequently, the question before the court is one of statutory interpretation: Is the plaintiff an “insured” as defined by 75 Pa.C.S.A. § 1705 and, therefore, bound by the limited tort election of her spouse?

When interpreting a statute, the rules of statutory interpretation require the court to begin its inquiry with the language of the statute itself. Matharu v. Muir, 86 A.3d 250, 262 (Pa. Super. 2014). “[T]he object of all statutory interpretation is to ascertain and effectuate the intention of the general assembly...and the best indication of the legislature’s intent is the plain language of the statute.” Comm. v. Walter, — A.3d —, 2014 WL 619899 (Pa. 2014) (referring to 1 Pa.C.S.A. § 1501 et seq). If the plain language of a statute is ambiguous, the court may ascertain the intent of the legislature by considering factors listed in the Statutory Construction Act, 1 Pa.C.S.A. § 1921(c).

The Superior and Supreme Courts of Pennsylvania have interpreted the language of § 1705 of the MVRFL. For example, the Supreme Court in Holland v. Mary, 883 A.2d 449 (Pa. 2005), stated, “We agree with the Superior Court’s conclusion that the language of Section 1705 is clear and unambiguous.” The plain language of Section 1705(b)(2) unambiguously binds a resident spouse of named insured to the tort option the named insured elected in his policy.

The plaintiff does not argue that she is married to and resides with the plaintiff-husband; rather, she argues that she should be an exception to this rule because she does not have a driver’s license, and she does not own or have access to any vehicle. Initially, the court notes that the legislature could have qualified the applicability of the tort option only to apply to those members of the household who are licensed to operate motor vehicles or to those members who have an ownership interest in the insured motor vehicles, but it did not. Nonetheless, the plaintiffs have cited cases, such as lckes v. Burkes, 713 A.2d 653, (Pa. Super. 1998), to suggest a court must first determine if a spouse of an owner of a vehicle has a de facto ownership of the vehicle before it can be determined that the spouse is an “insured” under the MVFRL. In Ickes, the appellee was injured in a motor vehicle accident with the appellant. Id. The appellee was a passenger in her husband’s vehicle, which was registered but not insured. Id. Pursuant to MVFRL, “An owner of a currently registered private passenger motor vehicle who does not have financial responsibility shall be deemed to have chosen the limited tort alternative.” 75 Pa.C.S.A. § 1705(b)(2). The appellant asked the trial court to prohibit the appellee from recovering full tort benefits. Ickes, 713 A.2d at 655. The appellant argued that the appellee’s husband should be treated as a named insured, who elected the limited tort option for his household, i.e. the appellee, since her husband is deemed to have chosen the limited tort option. Id. The trial court denied the appellant’s motion and the appellant appealed. Id.

The Superior Court found that the trial court correctly determined that the “appellee was not a de facto ‘owner’ of the uninsured vehicle owned and operated by her husband at the time of the accident.” Id. The Superior Court reasoned that the truck was titled only in the husband’s name, the appellee could not operate the vehicle’s manual transmition, and the appellee’s husband had exclusive control of the vehicle as the appellee did not have keys to it. Id. at 656. The Superior Court found that since the appellee had no ownership interest in the vehicle, the appellee could not be bound by her husband’s limited tort option that he was deemed to have chosen. Id. Therefore, the appellee was entitled to recover full tort benefits. Id.

Based upon the court’s reasoning in Ickes, the plaintiffs argue that the plaintiff is not a de facto owner of the plaintiff-husband’s vehicle. However, the instant case is distinguishable. In Ickes, the Superior Court was compelled to analyze whether the appellee was a de facto owner of the uninsured vehicle was because the appellee was not an “insured” under any policy. There was no automobile insurance policy insuring any vehicle in the household. Had the appellee’s husband in Ickes insured his vehicle, the court would not have had to address whether the appellee had any property interest because she would have been the resident spouse of an owner of an insured vehicle. Under those circumstances, as are the circumstances here, the appellee would have been deemed to be an “insured” under her husband’s policy and bound by his tort selection.

The language of the MVFRL is clear: the resident spouse of an owner of an insured vehicle is bound by the spouse’s tort selection. The MVFRL explicitly provides that the a named insured’s choice of tort benefits is to apply to “you and the members of your household^]” 75 Pa.C.S.A. § 1705(a). The statute does not provide for an exception when a spouse definitively meets the definition of an “insured.” The court cannot modify a statute by reading words into it when the language of the statute is clear and unambiguous. Rather, the role of the judiciary is to “ascertain and effectuate the intention of the general assembly.” 1 Pa.C.S.A. § 1921(a). The plain language of the MVFRL binds the plaintiff by the plaintiff-husband’s tort selection.

The plaintiff argues that even if this court determines that she is an “insured” under the plaintiff-husband’s policy, she is still entitled to recover full tort benefits because Evans’ policy is also applicable and provides for the recovery of full tort benefits to its “insured.” The MVFRL provides, “in the case where more than one private passenger motor vehicle policy is applicable to an insured and the policies have conflicting tort options, the insured is bound by the tort option of the policy associated with the private passenger motor vehicle in which the insured is an occupant at the time of the accident if he is an insured on that policy and bound by the full tort option otherwise.” 75 Pa.C.S.A. § 1705(b). In order to trigger this provision of the MVFRL, a person must meet the definition of an “insured” under two or more policies. As found above, the plaintiff is an “insured” under the plaintiff-husband’s policy. The plaintiff was injured while a passenger in Evans’ vehicle; therefore, Evans’ policy is also applicable. Evans’ policy defines “occupying” as “in, on, entering or exiting.” See Ex. B to Plaintiff’s Supple. Response. Evans’ policy defines an “insured” for purposes of first party benefits as the following: “any other person... occupying your car[.]” See Ex. B to Plaintiffs’ Supple. Response. As the plaintiff was as passenger in Evans’ vehicle at the time of the accident, she meets the definition of an “insured” under Evans’ policy as well.

Because the there are two applicable policies with conflicting tort options, “the solution is to apply the tort option covering the vehicle in which the party was injured so long as that person is an ‘insured’ under that policy.” Hoffman v. Troncelliti, 839 A.2d 1013, (Pa. 2003). Because the plaintiff was a passenger in Evans’ vehicle at the time of the accident, the plaintiff was an “insured” under Evans’ policy, Evans’ policy must apply. Therefore, the plaintiff is permitted to recover full tort benefits under Evans’ election of full tort benefits. Based upon the foregoing, the plaintiff is not bound by the plaintiff-husband’s limited tort selection, and the defendant’s motion for summary judgment is hereby denied.

ORDER OF COURT

And now, this 24th day of September, 2014, this case being before the court for oral argument on April 28, 2014 regarding the motion for summary judgment filed on behalf of the defendant, with Carmen F. Lamancusa, Esquire, appearing and representing the plaintiffs and Jason A. Hines, Esquire, appearing and representing the defendant, and after a complete and thorough review of the applicable record, the court hereby orders and decrees as follows:

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

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

      . The court notes that this determination is in accord with the legislative intent of the MVFRL In Hoffman, the Supreme Court cited the House Legislative Journal, “In virtually every circumstance where there is a question about which coverage will apply, there is a conscious attempt to rule in favor of the full tort.” 839 A.2d at 1019 n.8.


author: HERRON, J.,

text:
    In re Estate of Creamer

      C.P. of Philadelphia County,
    No. O.C. No. 911 DE of 2012
    Sept. 30, 2014
   HERRON, J.,

The account filed by the executrix to the estate of Roy A. Creamer, Sr., deceased, raises the issue of whether a beneficiary’s share of his father’s estate should be subject to a Family Court judgment in the amount of $16,289.37 for the support of his children where the deceased father’s will contained a spendthrift provision. While ordinarily a spendthrift provision would shield a beneficiary’s share from the claims of creditors while in possession of the fiduciary, an exception has been recognized in analogous case law and statute for a beneficiary’s child who has a judgment for support. In light of this exception, the executor must first honor the judgment in favor of Roy Creamer, Jrs.’s children before making distribution to him. The account cannot be confirmed until it is clear that there are sums sufficient to satisfy the judgment in favor of these children. If this judgment cannot be fully satisfied from Roy Jr.’s share of the estate, guardians must be appointed for the children to press their claim against the executor and the estate.

Background

Roy A. Creamer. Sr. died on April 16, 2012. He was survived by his spouse, Joan Creamer, as well as by seven children. In his will dated February 25, 2011, Roy A. Creamer, Sr. named his son Roy. A Creamer, Jr. and his daughter, Dawn Creamer as co-executors. He specifically devised his real property located at 403 Sacramento Street in Ventor, New Jersey, to his son Roy Creamer, Jr. He gave the residue of his estate to be divided equally among his seven children. In paragraph FIFTH, his Will set forth the following spendthrift provision:

FIFTH: All principal and income shall, until actual distribution to the beneficiary, be free of debts, contracts, alienations and anticipations of any beneficiary, and the same shall not be liable to any levy, attachments, executions or sequestration while in the hands of my co-executors.

The decedent’s wife, Joan Creamer, was completely left out of his will. On June 25, 2012, she filed a spousal election against the will pursuant to 20 Pa.C.S. A. §2203(a). Both co-executors filed a stipulation recognizing Joan Creamer’s entitlement to this election. On August 15,2013, Roy A. Creamer, Jr. resigned as co-executor. According to the accountant’s petition for adjudication, Roy Creamer, Jr. had hindered the smooth administration of his father’s estate:

4. Roy, Jr., a beneficiary and originally a co-executor, has been diagnosed with bipolar disorder since his 30’s, has a lifetime of substance abuse issues with many rehabs, has experienced bizarre delusions and has recently sustained a Traumatic Brain Injury as the result of an automobile accident on October 15, 2012 while under the influence of alcohol which resulted in his hospitalization for approximately 2 months.
5. Roy Jr. had other accidents on or about March 16, 2013 and March 31, 2013. Ms. Creamer tried to administer the estate with her brother, but found his conditions made it impossible to get many things that required his active participation and signature accomplished. For example Roy Jr. was in a coma, then rehab for weeks, twice in Friends Mental Hospital and then in rehab again for 20 days, all in the first year of administration of the estate.
6. Much of the time he was not in the hospital or rehab, he was drunk and/or high, contributing to the many other difficulties that Ms. Creamer was trying to deal with in the estate.
7. After trying unsuccessfully to administer the estate with her brother, Ms. Creamer, on many occasions, requested Roy Jr. to resign as co-executor to which request he finally agreed....
Petition for adjudication, ¶¶ 4-7.

The petition also stated that Roy, Jr. “is under a support order for children he had with Patricia Smith, the mother of his children, and has agreed in writing with Family Court to pay the money owed, which agreement was incorporated into an order of Judge Josephs on August 2, 2013. The August 2, 2013 court order by Judge Joseph, attached as ex. 3 to the petition for adjudication, provides that petitioner’s petition to reduce arrears to a judgment was granted and judgment was entered in the amount of $16,289.37 against Roy, Jr.

In October 2013, Patricia Smith, whose sole relation to the estate was as the mother of the children of one of the heirs, Roy Creamer, Jr., filed a petition for a citation to show cause why the co-executors should not file an account. Although co-executrix Dawn Creamer retained an attorney to respond to this petition, no answer was filed and on November 25,2013 Dawn Creamer was ordered to file an account within 20 days. This deadline was extended at the request of her attorney. By decree dated December 17,2013, the executrix was given an additional two weeks to file her account by December 31, 2013. The account was filed on January 10, 2014. Nonetheless, on January 29, 2014, Patricia Smith filed a petition to hold Dawn Creamer in contempt for failure to file an account, which was dismissed by decree dated February 3,2014

Two sets of objections were filed to the account. Harold Cohen, as the attorney originally hired by the executrix to respond to Patricia Smith’s citation, filed objections to the account based on the executrix’s refusal to pay $5,018 owed by the estate to him for legal fees. Mr. Cohen had formally withdrawn his appearance as counsel for the estate on January 31,2014. The second set of objections was filed by Patricia Smith on April 8,2014. In those objections, she challenged Joan Creamer’s spousal election against the will; she asserted the accountant had made distributions that had not been set forth in the account; she asserted that the executrix should be removed for “administering the estate to benefit her brother, Roy Jr. over the rights of Roy, Jr’s, children.” The account was placed on the deferred audit list and a hearing was scheduled on the objections that had been filed to it.

After the executrix obtained new counsel, she and her mother, Joan Creamer, raised preliminary objections to Patricia Smith’s claims. The main thrust of those objections is that Patricia Smith had no standing to raise any obj ections to the administration of the estate. More specifically, the executrix asserts that Patricia Smith falsely claimed to be a creditor of the estate, merely because she was the parent of the children of Roy A. Creamer, Jr., a beneficiary under his father’s will. At best, she is creditor of Roy A. Creamer, Jr. and not his father’s estate. The executrix further argues that because the will of Roy Creamer, Sr. contained a spendthrift provision, Patricia Smith, even if a creditor, lacks standing to proceed against the estate. Joan Creamer raised similar arguments in her preliminary objections, asserting more specifically that Patricia Smith lacked standing to object to her spousal election against the estate. This issue of standing had been raised by the accountant as a question for adjudication in the Petition that was filed with the account. More specifically, the accountant raised the following question for adjudication:

Is Raymond J. Quaglia, Esquire, and/or Patricia Smith, who is represented by Mr. Quaglia, entitled to participate as a party or otherwise question any estate proceedings in that Ms. Smith has no claim against the estate but is at best a creditor of a beneficiary of the estate.
1/10/14 account, petition for adjudication, ¶14.

Hence, this issue of standing is properly before this court. In resolving the objections to the account filed by Patricia Smith and Harold Cohen, several issues must be addressed in the following order: the standing of Patricia Smith to object to the administration of the estate and removal of its remaining executrix; the viability of the judgment for the support of Roy, Jr.’s children in the face of the spendthrift provision in his father’s will; the validity of Harold Cohen’s attorney fee request.

Legal Analysis

I. Patricia Smith Lacks Standing to Object to the Administration of the Roy Creamer, Sr. Estate or to Seek Removal of the Executrix Named in his Will

Patricia Smith’s sole claim to a relationship with the estate of Roy Creamer, Sr. is as the mother of the children of Roy, Jr., who is a named beneficiary of the estate as well as one of the seven children who were designated as beneficiaries of the residuary estate. In seeking the removal of Dawn Creamer as executrix, Ms. Smith is implicitly relying on 20 Pa.C.S.A. §3183 which provides that “any party in interest” may seek removal of a personal representative. In order to qualify as a party in interest, Ms. Smith must satisfy the basic requirements for standing. As a general rule, under Pennsylvania case law “[standing requires that an aggrieved party have an interest which is substantial, direct and immediate.” In re McGillick Foundation, 537 Pa. 194, 199,642 A.2d 467,469 (1994). A party in interest to an estate is usually an unpaid creditor of the estate, beneficiary, heir or next of kin. DiDio Estate, 12 Fid. Rep. 2d 14, 15 (Bucks Cty. 1991)(decedent’s son not named as beneficiary in her will lacked standing to seek removal of executor). In the instant case, Ms. Smith is neither a named beneficiary under the will nor a potential heir. She was not married to one of the beneficiaries. Although she is named in a judgment against a beneficiary, she stated in a pleading that the judgment was on behalf of the children of Roy Creamer, Jr. She thus lacks standing to seek the removal of Dawn Creamer as executrix, to object to the administration of the estate or to seek an accounting from the executor. See, e.g. Hewitt Estate, 44 Pa.D. & C.2d 109 (Phila. O.C. 1968)(Klein, J.)(where son had no interest in an estate, he could not demand an account or challenge the estate’s administration).

II. The Judgment Entered on Behalf of the Children of Roy, Jr. Must Be Honored as to His Share of his Father’s Estate Despite the Spendthrift Provision in Roy, Sr.’s Will

Although Patricia Smith lacked standing to make any personal claims against the Roy Sr.’s estate, the accountant admits in her petition for adjudication attached to the account that Roy, Jr. “is under a support order for children he had with Patricia Smith.” In fact, she attached a copy of this support order in the amount of $16,289.37 as exhibit 3 to the account, but then suggests that this order would not be enforceable because of Patricia Smith’s lack of standing and the spendthrift provisions in the Roy Sr.’s Will. These, however, are two distinct issues. By admitting the existence of this support order, the accountant has presented the issue of its viability in light of the spendthrift provisions before this court for adjudication.

The Will of Roy Creamer, Sr. contains the following spendthrift provision:

FIFTH: All principal and income shall, until actual distribution to the beneficiary, be free of debts, contracts, alienation and anticipations of any beneficiary, and the same shall not be liable to any levy, attachments, executions or sequestrations while in the hands of my co-executors.

Spendthrift provisions or trusts have a long and favored history under Pennsylvania law. Heyl’s Estate, 50 Pa.D. & C. 357, 359 (Phila. O.C. 1944), app. denied, 156 Pa. Super. 277, 40 A.2d 149 (Pa. Super. 1944)(“Spendthrift trusts have long been the favorite of the law”). In enforcing spendthrift clauses, “courts of this Commonwealth will uphold the spendthrift provisions as a means to enforce the settlor’s right to dispose of his property as he so chooses.” Ware Trust, 2002 Pa. Super. 407, 814 A.2d 725,731 (Pa. Super. 2002). Typically, these provisions are characterized as spendthrift trusts which arise when “a testator clearly expresses an intent to subject the income of a testamentary trust to a spendthrift provision, [so that] the income is exempt from execution in the hands of the trustee because the income of a spendthrift trust ‘remains the testator’s property until it is actually paid to the beneficiary.” Widener and Bigelow Trusts, 16 Fid.Rep.2d 159, 162 (Monty. Cty. 1996)(Ott, J.). But once the distribution is made to the beneficiary, it may then be subjected to the claims of creditors. Id. at 163. See also In re Goe’s Estate, 146 Pa. 431, 433-34, 23 A. 383 (Pa. 1892)(testatrix had the right to protect her estate against creditors of her children while in transit but after “it reaches the hands of the children it becomes their property absolutely” [and liable] “to execution and attachment”). In the case of spendthrift provisions in a will that does not create a trust such as Roy Sr.’s will, the testator who inserts spendthrift provisions in his will in essence creates an express trust that protects those assets while in the control of the fiduciary. Clanton Estate, 46 Pa.D. & C.3d 662, 664 (Chester Cty. 1987)(Even though the Will does not expressly mention the word “trust,” it gives rise to a spendthrift trust which exists while the estate remains in the hands of the executor”).

While a spendthrift provision or trust may protect a beneficiary’s assets while in possession of the fiduciary in transittobeneficiaries,Pennsylvaniacourtshaverecognized exceptions to this protection. Claims for unpaid taxes, for instance, have been permitted to reach the interests of a beneficiary under a spendthrift trust. Scott Estate, 7 Fid.Rep. 218, 221-22 (Mont. Cty. 1957)(collecting cases from other jurisdictions). Claims for the support of spouses or children against the beneficiary of a spendthrift trust have received differing treatments. Claims based on separation agreements for the support of a wife and child have not pierced the protection of spendthrift provisions in Clanton Estate, 46 Pa. D & C 3d 662 (1987) and Clark v. Clark, 411 Pa. 251, 191 A.2d 417 (Pa. 1963). In contrast, claims based on judgments for support have been recognized. As the Pennsylvania Supreme Court observed: “Originally it was the law of Pennsylvania that claims of a wife and/or child for support were no different from claims of other creditors, and therefore the interest of the beneficiary of a spendthrift trust could not be attached even on a claim of nonsupport. This result was subsequently changed by statute and case law.” Posner v. Sheridan, 451 Pa. 51, 60, 299 A.2d 309, 313 (Pa. 1973). Pennsylvania courts have concluded, for instance, that judgments obtained by spouses for support can trump spendthrift provisions. See In re Stewart’s Estate, 334 Pa. 356, 365, 5 A.2d 910, 914 (Pa. 1939)(a wife is “entitled to recover on a decree for maintenance and support entered by a court of competent jurisdiction” against “her husband’s interest in the trust even though it contains a spendthrift clause”); In re Morehead’s Estate, 289 Pa. 542, 137 A.802 (Pa. 1927) (court order requiring husband to make support payments to wife were enforceable against his spendthrift trust).

The enactment of the Pennsylvania Uniform Trust Act in 2006 clarifies who may override a spendthrift provision:

(b) Who may override. — A spendthrift provision is unenforceable against:
(1) a beneficiary’s child who has a judgment or court order against the beneficiaryfor support or maintenance to the extent of the beneficiary’s interests in the income and principal of the trust;
(2) any other person who has a judgment or court order against the beneficiary for support or maintenance, to the extent of the beneficiary’s interest in the trust’s income
20 Pa.C.S.A. §7743 (emphasis added).

In the present case, the accountant has acknowledged that Roy Jr. is subject to “to a support order for the children he had with Patricia Smith.” Petition for adjudication, addendum at ¶12. According to the court order the accountant herself attached to the account, Roy, Jr. is subject to a judgment of $16,289.87. In light of the provisions of the PEF code, which by analogy would apply to the Will in this case, Roy Jr.’s interest in the estate of his father shall be subject to that judgment for the support of his children. That judgment, however, would extend only to his interest in the estate and would be paid by the accountant directly to the judgment creditor.

According to the statement of proposed distribution, Roy Jr. is entitled to one-seventh of the remaining principal after Joan Creamer’s claim for an elective share of the estate. In addition, he is to receive the balance from the sale of the New Jersey property that was specifically bequeathed to him — after payment of expenses and the elective share of Joan Creamer. This raises the issue of the standing of Roy, Jr.’s children: they would have standing in this matter to the extent of their $16,289.87 judgment. If that judgment is paid in full, this matter is resolved. If, however, the executrix cannot pay that total sum, the children would have standing to challenge Joan Creamer’s claim to an elective share. At that point, guardians would have to be appointed to protect those interests. In light of this open issue, the account cannot be confirmed as presently stated and will be returned unaudited.

III. The Request of Harold Cohen for Additional Attorney Fees in the Initial Amount of $5,018 and the Supplemental Amount of $778.45 is Unreasonable and will be Reduced to $3,000 in addition to the $1,000 Retainer Fee

Harold Cohen, the former attorney for the estate of Roy Creamer, Sr., filed objections to the account asserting that the executrix failed to pay him the sum of $5,018 for the legal services he performed for the estate. In support of this claim, he attached an invoice covering the period December 1, 2013 through January 10, 2014. He also testified at the hearing on his objections, where he presented a supplemental invoice for an additional $778.45 for the period after he ceased representing the Creamer estate.

Attorneys who perform services for an estate are entitled to reasonable compensation based on their actual services to the estate. Estate of Sonovick, 373 Pa. Super. 396, 399-400, 541 A.2d 374, 376 (1988). An attorney bears the burden of showing facts that establish that he is entitled to the requested compensation. Estate of Preston, 385 Pa. Super. 48, 56, 560 A.2d 160, 164 (1989). The following standard applied in Pennsylvania for determining the reasonableness of claims for attorney fees was established by the Pennsylvania Supreme Court in LaRocca Estate, 431 Pa. 542,246 A.2d 337 (1968):

What is a fair and reasonable fee is sometimes a delicate, and at times a difficult question. The facts and factors to be taken into consideration in determining the fee or compensation payable to an attorney include: the amount of work performed; the character of the services rendered; the difficulty of the problems involved; the importance of the litigation; the amount of money or value of the property in question; the degree of responsibility incurred; whether the fund involved was ‘created’ by the attorney; the professional skill and standing of the attorney in his profession; the results he was able to obtain; the ability of the client to pay a reasonable fee for the services rendered; and very importantly, the amount of money or the value of the property in question.

LaRocca Estate, 431 PA. at 546, 246 A.2d at 339.

At the hearing on his objections, Mr. Cohen acknowledged that he had been paid a $1,000 retainer fee for his legal services. He referenced his invoice for $5,018.00 (Ex. C-2) and expressed his belief that it was fair and reasonable. Mr. Cohen also presented a “supplemental” invoice as exhibit C-3 for $778.45 covering the period March 7, 2014 through May 7, 2014 when he was no longer employed by the estate. On cross examination, he conceded that Ms. Creamer had initially retained him to file an answer to the petition seeking an accounting by Patricia Smith and that he had failed to do so because she had contacted him only days before the answer was due. The executrix was subsequently ordered to file an account by December 16,2013. By decree dated December 17,2013, the executrix was given an additional two weeks to file the account on December 31, 2013. The account was not filed, however, until January 10, 2014. A contempt petition was thereafter filed against the executrix on January 29,2014, but by that time Mr. Cohen no longer represented the estate.

Ms. Creamer testified that after Mr. Cohen failed to respond to the petition seeking an accounting, she was leery about using him to file the account but she lacked time to find a new attorney. She hired an accounting firm to prepare the account and paid them $3,500. In her opinion, the accountants did an excellent and timely job. In contrast, she complained that Mr. Cohen did not contact her until the day before the extended deadline of December 31 for documents that had to be filed with the account. He had never sent her a concise breakdown of the documents that he needed. And the forms that he filled out for the accounting needed constant revision and correction by her. This testimony is borne out by Mr. Cohen’s bill which shows that he spent minimal time of the Roy Creamer, Sr. estate until December 30, 2013 when he spent 5.2 hours reviewing documents, drafting and assembling the petition and addendum. On the day the account was due to be filed, he spent 4.2 hours on continuing to assemble and revise the petition. Finally, the invoice reflects that the account was not filed until January 10, 2014. Ex. C-2. Although Mr. Cohen had complained that he had been required to respond to as many as 250 emails from the executrix, the invoice reflects only modest time spent on emails and telephone calls on December 1-6 (.8 hours), December 7 (.3 hours), on December 12 (1.4 hours including time spent on drafting a letter to this court), December 26 (.3 hours) and December 28 (.5 hours).

Ms. Creamer stated that she had never seen the supplemental bill for $778.45 until the day of the hearing. That supplemental bill lists services performed on March 7, March 10, April 7, May 6 and May 7. Ex. C-3. This bill is totally without merit because as Mr. Cohen admitted he had ceased working for the estate in January 2014. No facts were presented by the attorney to justify this charge.

As for the invoice for $5,018, the “time expended does not replace the test of reasonableness, and while time involved is a factor in setting a fair and reasonable fee, it is only one of several factors set forth in LaRocca Estate.” Estate of Burch, 402 Pa. Super. 314, 319, 586 A.2d 986 (1991). The lion’s share of the initial invoice was spent on preparing the documents and petition for the account on December 30 and 31. This last minute effort did not meet the December 31 deadline for filing the account that Ms. Creamer rightfully believed was very important. Moreover, the account was not filed until ten days after the deadline. Ms. Creamer was thereafter confronted with a petition for a contempt citation, which she was forced to respond to after retaining new counsel. Under LaRocca “the character of services rendered” and the results an attorney “was able to obtain” must be considered. In this case, the time spent on preparing the account did not result in a timely filing. In addition, although he had been retained initially to file an answer to the petition for an accounting, Mr. Cohen failed to do so. For these reasons, the request for $5,018 in attorney fees is unreasonable and shall be reduced to $3,000.

According to the accountant, Pennsylvania Transfer Inheritance and estate tax in the amount of $3,476.58 was paid on August 21, 2013 with $56.73 “due currently.” The accountant shall of course pay all taxes that are due. The account states that the balance of principal before distribution is $107,205.41 and the balance of income before distribution is $10,550 for a total of $117,755.41.

In light of the open issue as to whether the accountant will be able to pay the $16,289.37 judgment in favor of the children of Roy, Jr. from his share of the estate, the account cannot be confirmed as stated.

Accordingly, this 30th day of September 2014, it is hereby ordered and decreed that the first and final account of Dawn Creamer, executrix, of the estate of Roy Creamer, deceased shall be returned to the Clerk of Orphans’ Court unaudited.

      . Petition for adjudication, ¶12.

      . In her 10/8/13 petition seeking an accounting, Ms. Smith states that this judgment was entered on behalf of Roy Creamer Jr.’s children against their father for support. ¶4 & Ex. B

      . Mr. Cohen testified that he had been retained on November 17, 2013 to file a response to the citation. 5/7/14 N.T. at 24 & 31.

      . 4/8/14 Patricia Smith objections, ¶¶1-6.

      . 4/21/14 Dawn Creamer preliminary objections, ¶¶13-19.

      . 4/14/14 Joan Creamer preliminary objections, ¶¶17-21, memorandum at 1-3.

      . On April 30, 2014, Patricia Smith filed preliminary objections to the preliminary objections of the accountant, asserting inter alia that the issue of standing cannot be raised by preliminary objection. But it is unnecessary to become mired in this procedural quagmire for the simple reason that the issue of Patricia Smith’s standing was raised in the first instance in the petition for adjudication that was filed with the account on January 10, 2014. This allows this court to cut to the heart of the issues presented.

      . 1/10/14 account, petition for adjudication, addendum ¶12.

      . 75/7/14 N.T. at 33 (Cohen).

      . 5/7/14 N.T. at 31 (Cohen).

      . 5/7/14 N.T. at 36-37 (Cohen).

      . 5/7/14 N.T. at 43-44 (Creamer).

      . 5/7/14 N.T. at 42-46 (Creamer).


author: WETTICK, J.,

text:
    Brunner v. Ritchey

      C.P. of Allegheny County,
    No. GD-12-017122

      Frederick B. Goldsmith, for plaintiff.

      Scott E. Becker, for defendant Scott Jack Ritchey.

      Douglas J. Stipanovich, for defendant Colussy Chevrolet, Inc.

      Edward A. Yurcon, for defendant Pittsburgh Bottle Shop Cafe, Inc.

      Alan S. Miller, for Travelers Property Casualty Co.
    Oct. 6, 2014
   WETTICK, J.,

The question before me is whether, in a personal injury action, plaintiffs are entitled to a protective order that prohibits counsel for defendants from furnishing plaintiffs’ confidential records to the insurance companies that are insuring defendants unless the insurance companies agree to either destroy or return the confidential records to counsel upon completion of the litigation. The insurance companies state that Pennsylvania law requires insurance companies to keep all information for several years.

Melanie S. Brunner and Samantha B. Brunner were injured when a truck driven by defendant Scott Jack Ritchey ran a red light and broadsided the automobile driven by Melanie Brunner. Ritchey’s blood alcohol level was .215. He pleaded guilty to various DUI-related criminal offenses.

Defendants are Ritchey, Colussy Chevrolet, Inc. (which owned the pickup truck Ritchey was driving), and Pittsburgh Bottle Shop Cafe, Inc. (the bar that allegedly served Ritchey while visibly intoxicated).

Samantha Brunner alleges that she suffered a severe concussion with attendant migraine headaches that continue to this day and a myriad of other symptoms. She has been a patient of a UPMC concussion specialist since the accident.

The complaint alleges that Melanie Brunner sustained neck and shoulder injuries, headaches, pain, nausea, right leg pain and contusions to her right leg, and also underwent mental health counseling for traumatic stress disorder. The complaint alleges that the accident triggered a PTSD response as a result of a tragic accident she witnessed at age seven in which her five-year old brother was struck and killed by an automobile.

Through discovery requests, defendants seek medical bills and records relating to the care and treatment of Melanie Brunner and Samantha Brunner; the complete medical and psychiatric bills and records from providers; the complete employment records of Samantha Brunner; and all school records of Samantha Brunner for the past five years. I refer to these records as plaintiffs’ confidential records.

Plaintiffs are prepared to furnish these confidential records to defendants under a confidentiality agreement that requires defense counsel, the insurance companies who insure defendants, and others receiving the confidential records from defense counsel, such as experts, to return or destroy these records within fourteen days after the case is resolved.

It appears that defendants and their counsel will agree to return (or destroy) the records at the conclusion of the litigation. Furthermore, if they were refusing to do so, I would, through a protective order, condition plaintiffs’ obligation to produce these confidential records on the promise of defendants to return (or destroy) the records at the conclusion of the litigation. I would do so because defendants are seeking confidential information which is in the possession, custody, or control of plaintiffs. In order to pursue this lawsuit, the discovery rules compel plaintiffs to produce relevant confidential information to defendants’ counsel solely for the purpose of defending the case. Pa.R.C.P. No. 4003.1. Neither defendants nor their attorneys may use the confidential records for any purpose other than for defense of the litigation. Consequently, in order to ensure that information is only used for litigation, plaintiffs are entitled to the return (or destruction) of the confidential records at the conclusion of the litigation.

The argument that defendants and their counsel cannot be required to return (or destroy) the confidential records furnished by plaintiffs in the absence of “good cause shown,” within the meaning of Pa.RC.P. No. 4012(a), has no merit. Plaintiffs’ privacy interests are furthered by the return (or destruction) of the confidential records, and defendants have no interest that the law recognizes in exercising possession, custody, or control over the confidential records following completion of the litigation.

While the insurance carriers wish to question a ruling that the rules of discovery require a party who has received confidential records to return the records upon completion of the litigation, they have no standing to do so because they are not parties to the litigation. Even if counsel for defendants was selected by and is being compensated by the insurance company, the insurance company is a stranger to this litigation. See Comment 11 to Rule 1.8 of the Rules of Professional Conduct.

If in this case counsel for defendants chooses not to engage in discovery, the insurance company has no standing to challenge that decision. If in this litigation defendants’ counsel chooses not to turn over to the insurance company confidential records received by defendants, the insurance company has no standing to intervene. If in this case defendants agree to a court order conditioning the ability of defendants to furnish confidential records to third persons, including insurance carriers, on the promise of the third persons to return (or destroy) the documents at the conclusion of the litigation, the insurance carriers would have no standing to object. This is equally true if a court, over the opposition of defendants, enters a court order conditioning the turning over of the confidential records to the insurance companies on the insurance companies’ agreement to return the documents to defendants’ counsel upon conclusion of the litigation.

The insurance companies have no right to possession, custody, or control of the confidential records. Consequently, the insurance companies have no standing to complain about any court order directing defendants to furnish plaintiffs’ confidential records only to persons who have an interest in the litigation and who agree, prior to the receipt of the records, to return or destroy the records upon completion of the litigation.

This means that if the insurance companies, for whatever reason, do not agree to turn over to counsel or to destroy the records at the conclusion of the litigation, defendants cannot allow the insurance companies to have custody of the records. Instead, defendants must use an alternative means of describing the confidential information that does not result in plaintiffs’ confidential records ending up in the insurance companies’ records.

The insurance companies contend that they should not be compelled to return (or destroy) plaintiffs’ confidential records because, according to the insurance companies, the following legislation (40 P.S. § 323.3(a)) prohibits them from doing so:

(a) Every company or person subject to examination in accordance with this act must keep all books, records, accounts, papers, documents and any or all computer or other recordings relating to its property, assets, business and affairs in such manner and for such time periods as the department, in its discretion, may require in order that its authorized representatives may readily verify the financial condition of the company or person and ascertain whether the company or person has complied with the laws of this Commonwealth.

I question whether 40 P.S. § 323.3(a) bars the insurance companies from returning (or destroying) plaintiffs’ confidential records because these may not be records that relate to “financial condition of the company or person” or records relevant to “whether the company or person has complied with the laws of this Commonwealth.” Furthermore, the General Assembly would not have intended for 40 P.S. §323.2(a) to trump the Rules of Civil Procedure governing discovery because, under the Pennsylvania Constitution, Art. 5 §10, procedure is a matter for the courts.

Finally, even assuming that 40 P.S. §323.2(a) would require the insurance companies to preserve any confidential records of plaintiffs that are in their possession, custody, or control, my ruling that through a confidentiality order all persons receiving plaintiffs’ confidential records must agree, prior to receipt, to return (or destroy) the records at the conclusion of the litigation does not conflict with 40 P.S. §323.3(a). This legislation does not authorize insurance companies to obtain information from third parties; it only covers records that come into the possession of the insurance companies. The discovery rules, on the other hand, may protect the privacy interests of litigants by limiting the persons who may receive confidential information produced in discovery to those who agree to return (or destroy) plaintiffs’ personal records.

For these reasons, I enter the following order of court:

ORDER OF COURT

On this 6th day of October, 2014, it is hereby ordered that plaintiffs’ motion for entry of protective order is granted, and within twenty (20) days, the parties shall submit to this court an agreed-upon protective order consistent with the rulings made in the opinion accompanying this order of court.


author: REICHLEY, J,

text:
    Carl v. Emmaus Borough Zoning Hearing Board

      C.P. of Lehigh County,
    No. 2014-C-1719

      Catherine E. N. Durso, for appellants.

      Ronald E. Corkery, for appellee.

      Alfred Stirba, IV, for intervenor, Emmaus Borough.

      John O. Stover Jr., for intervenor, Michael Wilson.
    Oct. 6, 2014
   REICHLEY, J,

Neil and Joanne Carl, appellants, are appealing from a decision of the Emmaus Borough Zoning Hearing Board concerning Michael Wilson’s application for special exception and two variances to build an auto repair garage. Because no abuse of discretion can be found in granting conditional approval to an applicant who reasonably shows the ability to fulfill zoning ordinance requirements, said appeal is hereby denied.

Factual and Procedural History

Michael Wilson owns the premises located at 23 South First Street Emmaus, Lehigh County, Pennsylvania (the property) located in the Borough of Emmaus Highway Commercial (B-H) Zoning District. The property, currently a warehouse, is located in a flood plain. Wilson proposed to develop the property into an auto repair garage. Wilson applied for a special exception because under the Emmaus Zoning Ordinance, an auto repair garage is permitted in a B-H Zoning District only as a special exception.

In addition to a special exception, Wilson’s proposal required two variances from the zoning ordinance requirements: first, a five parking space variance from the requirements of Emmaus Zoning Ordinance §601(2); and, second, a five-foot aisle width variance from the mandates of Emmaus Zoning Ordinance §603.3(B). By way of joining in the application for the special exception, the Borough of Emmaus declared its intention to vacate a portion of South First Street and convey the one-half of the vacated street to Wilson. Wilson’s application is premised on this surrender.

A public hearing was held by the Emmaus Borough Zoning Hearing Board (the Board) on March 27, 2014, where Appellant, Neil Carl, appeared as an interested party. Appellants own the property located at 7 South First Street, adjacent to Wilson’s property, which is used for commercial/industrial purposes.

On April 24, 2014 the board issued a written decision granting the requested special exception and variances. Pursuant to Zoning Ordinance §119, Special Exception Use Process, and § 118(D)(3), approval of conditional uses, the board found Michael Wilson had sustained his burden of demonstrating compliance with the special exception provisions. Additionally, the board noted in an application for a zoning variance, the applicant bears the burden to demonstrate the zoning ordinance imposes an unnecessary hardship, which is unique or peculiar to the applicant’s property; the hardship is of a serious, substantial, and compelling nature; and the granting of the variance will not be contrary nor detrimental to the public interest. The board found that Wilson sustained his burden.

On May 23, 2014, Neil and Joanne Carl filed the instant appeal. Appellants assert the board’s decision was contrary to law. Specifically, appellants argue the board erred by granting the variance due to an averred hardship when the board ignored the zoning ordinance requirement to find there is not any possibility the property can be developed in strict conformity with the provisions of the zoning ordinance. Appellants also argue the conditional conveyance by the Borough of Emmaus violates their rights and is inconsistent with law.

Standard of Review

Where the trial court does not take additional evidence, its scope of review is to determine if the zoning board committed an error of law or an abuse of discretion. Valley View Civic Association v. Zoning Bd. of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983). A zoning hearing board abuses its discretion when its essential findings of fact are not supported by substantial evidence. Id. “Substantial evidence” sufficient to support a decision of the zoning hearing board is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Lantos v. Zoning Hearing Bd., 153 Pa. Cmwlth. 591, 621 A.2d 1208 (1993). The court will not substitute its judgment for that of the zoning board unless the board manifestly abused its discretion. Nascone v. Ross Township Zoning Hearing Bd., 81 Pa. Cmwlth. 482, 473 A.2d 1141 (1984); Ramondo v. Zoning Hearing Bd., 61 Pa. Cmwlth. 242, 434 A.2d 204 (1981).

Discussion and Conclusions of Law

Appellants argue the conditional approval requiring vacation of a portion of South First Street and the conveyance by the Borough of a portion of the vacated property is inconsistent with appellate case law. Appellants assert an applicant for special exception must demonstrate their proposed use meets the applicable requirements of the zoning ordinance when the application is submitted because a promise to comply or conditions compelling future compliance cannot cure an otherwise non-compliant application. See Edgmont Township v. Springton Lake Montesorri, Inc. 622 A.2d 418, 420 (Pa. Cmwlth. 1993) (reversing the grant of a special exception because “a promise to come into compliance is not evidence to support the board’s grant of the special exception”); see also Lafayette College v. Zoning Hearing Board of City of Easton, 588 A.2d 1323 (Pa. Cmwlth. 1991).

A special exception is a permitted use, which a municipal legislative body has determined to be appropriate in a zoning district if specific requirements of the zoning ordinance are met. See 53 PS. §10603; see also Bernotas v. Zoning Hearing Bd. of City of Bethlehem, 68 A.3d 1042, 1053 (Pa. Cmwlth. 2013). Section 119 of the Emmaus Zoning Ordinance sets forth the process and procedures for seeking a special exception use. The ordinance specifically provides:

Approval of Special Exception Uses. The zoning hearing board shall approve any proposed special exception use if they find adequate evidence that any proposed use will meet:
A. All of the standards listed in § 118(3)(D).
B. Specific standards for the proposed use listed in §402 and §403.
C. All other applicable requirements of this Chapter.

Borough of Emmaus, Pa., Zoning Ordinance ch. 27, §119(3) (2003).

In Broussard v. Zoning Board of Adjustment of the City of Pittsburgh, the Supreme Court of Pennsylvania specifically addressed the issue of whether and under what circumstances an application for a special exception may be contingently granted conditioned upon the applicant’s subsequent compliance with express requirements for the special exception under the zoning ordinance. Broussard v. Zoning Board of Adjustment of the City of Pittsburgh, 907 A.2d 494, 495 (Pa. 2006). The Broussard Court found the Edgmont Township and Lafayette College opinions instructive in that the applicant property owners:

[Fjailed to include in its submissions before the zoning board any indication of an intention to fulfill the conditions associated with the special exception at issue. It was on this basis that the Commonwealth Court deemed the property owner’s submissions insufficient, and not upon the lack of literal completion of all conditions reflected in the plan itself. Id. at 501.

The Commonwealth Court later noted, “[Ijn Broussard, the court distinguished between an applicant who merely promises to bring a non-compliant zoning plan into compliance and an applicant who reasonably shows the ability to fulfill requirements.” In Re: McGlynn, 974 A.2d 525, 536 (Pa. Cmwlth. 2009). This distinction is key because no abuse of discretion can be found in granting conditional approval to an applicant who demonstrates a capacity to complete the special exception requirements. Broussard, 907 A.2d at 502. The court concluded,

Where the plan, as submitted, addresses all of the ordinance’s prerequisites for the special exception sought, and reasonably shows that the property owner is able to fulfill them in accordance with the procedures set forth by the zoning code (as reasonably interpreted by the board), a reviewing court should not reverse the grant of such an exception on the sole basis that some of the items described in the plan may be completed at a later date. Id.

In the present case, the court finds that Wilson did not merely promise the board he would bring a non-compliant zoning plan into compliance. Rather, by presenting a detailed plan and having the Borough of Emmaus join in the special exception request as a co-applicant, Wilson reasonably demonstrated the ability to fulfill the requirements by submitting a plan which addressed the relevant ordinance’s prerequisites. As a result, the court finds that the board did not abuse its discretion in granting the special exception and in imposing conditional approval.

Because the court finds that the board properly determined that Wilson presented substantial evidence in support of granting his requested special exception to allow the repair garage contingent upon the Borough vacating a portion of South First Street and conveying the Borough’s portion of the vacated property to Wilson, the next issue is whether the Board erred in granting the requested variances.

Under the applicable zoning ordinance, the board must make five specific factual findings in order to grant a variance. Borough of Emmaus, Pa., Zoning Ordinance ch. 27, §111 (2003). Specifically, the board must find all of the following where relevant:

(a) There areuniquephysical circumstances or conditions (including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property) and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of this Chapter in the neighborhood or district in which the property is located;
(b) Because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of this Chapter and a variance is therefore necessary to enable the reasonable use of the property;
(c) Such unnecessary hardship has not been created by the appellant;
(d) The variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare; and,
(e) The variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.)

Id. at § 111C(2); 53 P.S. §10910.2.

In this case, Wilson offered a plan in which a warehouse would be developed into a repair garage. The premise for the plan was for the Borough of Emmaus to vacate a public street, South First Street, and to convey one-half of the vacated street to Wilson in order for Wilson to use that former portion of the street for parking spaces. Wilson presented testimony that the five parking space variance and the five foot aisle variance were necessary to alleviate the undue hardship associated with the property due to the configuration of the property and the property’s location within a floodplain. Nineteen parking spaces, or five per repair/service bay plus one per employee, are required under the zoning ordinance. Borough of Emmaus, Pa., Zoning Ordinance ch. 27, §601(2) (2003). Because of the property’s configuration and location, Wilson’s plan provided for fourteen parking spaces, thereby necessitating the five parking space variance.

Because the property is located in a flood plain, there cannot be any significant modifications to the site. The existing stone parking lot cannot be macadamed, and a grass area between the street and the current parking lot cannot be utilized for parking spaces. The board noted that the five foot aisle width variance was necessary in order to enable the vacated portion of South First Street to be a “two-way” aisle for parking. The board determined that granting Wilson’s variances requests would not negatively affect the neighborhood. As a result, the court finds that the board did not abuse its discretion in granting the requested variances.

Conclusion

Because no abuse of discretion can be found in granting conditional approval to an applicant who reasonably shows the ability to fulfill requirements, Broussard, supra, the instant appeal is hereby denied and the decision of the Emmaus Borough Zoning Hearing Board is affirmed.

ORDER

And now this 6th day of October, 2014, upon consideration of the appeal filed by Neil Carl and Joanne Carl from a decision of the Emmaus Borough Zoning Hearing Board on April 4, 2014 filed with the clerk of judicial records — civil division on May 23, 2014, which granted the special exception and variance requests, having reviewed the briefs from appellants, appellee, and interveners and having heard argument on September 2, 2014, the court finds the following:

It is ordered that said appeal is denied and the Emmaus Borough Zoning Hearing Board’s April 4, 2014 decision is affirmed.

      . At the time of initial application, Wilson was the equitable owner of the property, but since then Wilson has purchased the property pursuant to a deed dated April 30,2014 and recorded May 9,2014 at the Lehigh County Recorder of Deeds Office, Document I.D. 2014011444.

      . Referenced in the ordinance, §118(3)(D) requires compliance with all other standards related to: other laws; traffic; safety; storm water management; neighborhood; site planning; and performance standards. Borough of Emmaus, Pa., Zoning Ordinance ch. 27, §118(3)(D) (2003).

      . §402 details additional requirements for specific principal uses. Borough of Emmaus, Pa., Zoning Ordinance ch. 27, §402 (2003).

      . §403 details additional requirements for accessory uses. Borough of Emmaus, Pa., Zoning Ordinance ch. 27, §403 (2003).


author: GRAY, J.,

text:
    Walker v. Community Action Realty, Inc.

      C.P. of Lycoming County,
    No. 13- 00,418

      Andrew S. Dashevsky, for plaintiff.

      Thomas E. Brenner, for defendant.
    Oct. 13,2014
   GRAY, J.,

Before the court is defendant’s motion for summary judgment in a personal injury case where the plaintiff slipped and fell on the landing at the top of the steps exiting defendants’ building. Defendants contend they are entitled to summary judgment because plaintiff failed to identify the specific defect that caused her fall and because the alleged defect was so trivial that allowing it to exist was not negligent as a matter of law. Upon review and consideration of the briefs and argument in this matter, defendants’ motion for summary judgment is denied.

Procedural Background

On February 19, 2013, plaintiff, Sarah Walker, filed a complaint in negligence related to her fall on March 3, 2011. On April 22, 2013 the parties filed a stipulation in which the general averments of negligence set forth in paragraphs ll(i) and ll(j) of the complaint were stricken. On April 23,2013, defendant, STEP, Inc. (STEP), filed an answer with new matter, raising comparative negligence, plaintiff’s pre-existing medical condition, and assumption of the risk. On June 24, 2013, defendant, Community Action Realty, Inc. (CAR), filed an answer with the same new matter as STEP. On June 4, 2014, defendants filed a joint motion for summary judgment with a supporting brief. On July 9, 2014, plaintiff filed her response to the motion for summary judgment with a supporting brief attached. Argument was held on July 28, 2014. No case monitoring notice has been filed.

Factual Background

On March 3,2011 Sarah Walker went to the STEP office at 2138 Lincoln Street related to programs offered there. Upon exiting the building, Walker stumbled, tripped and fell down the stairs into the sidewalk, sustaining injuries. Walker fractured three teeth and lost consciousness. In her deposition, Walker testified that her foot came into contact with a raised portion of the pavement on the porch at the top of the stairs, causing her to trip and fall down the stairs. See, Response to Summary Judgment (RSJ), at 4, citing Walker Dep. at 41:7-43:9. It is undisputed that there is a “raised area of the porch surface” located a few inches from the front edge of the top step, between the doormat and front step. The investigative report indicates that the irregularity is located three inches from the front edge of the exterior landing. The investigative report indicates that the irregularity consists of an area of about 13/4x1 3/4 and is l/8th of an inch high. See, Summary Judgment Motion (SJM) at 3, Investigator’s report at 2. The raised area of the porch surface is located directly in the middle of the steps, which is a busy, heavily traversed point of primary access to a public building.

Conclusions of Law

Summary Judgment

1. Pursuant to Pa. R.C.P. 1035.2, the court may grant summary judgment at the close of the relevant proceedings if there is no genuine issue of material fact or if an adverse party has failed to produce evidence of facts essential to the cause of action or defense. Keystone Freight Corp. v. Stricker, 31 A.3d 967, 971 (Pa. Super. Ct. 2011).

2. A non-moving party to a summary judgment motion cannot rely on its pleadings and answers alone. Pa. R.C.P. 1035.2; 31 A.3d at 971.

3. When deciding a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party, with all doubts as to whether a genuine issue of material fact exists being decided in favor of the non-moving party. 31 A.3d at 971.

4. If a non-moving party fails to produce sufficient evidence on an issue on which the party bears the burden of proof, the moving party is entitled to summary judgment as a matter of law. Keystone, 31 A.3d at 971 (citing Young v. Pa. Dep’t of Transp., 744 A.2d 1276,1277 (Pa. 2000)).

Negligence — Trivial Defects

5. “Pennsylvania law provides that property owners have a duty to keep their sidewalks in a reasonably safe condition for travel by the public.” Peair v. Home Ass’n of Enola Legion No. 751, 287 Pa. Super. 400, 430 A.2d 665, 667 (Pa. Super. 1981). “Property owners must maintain their sidewalks so that they do not present an unreasonable risk of harm to pedestrians.” Bromberg v. Gekoski, 410 Pa. 320, 189 A.2d 176, 177 (Pa. 1963); German v. City of McKeesport, 137 Pa. Super. 41, 8 A.2d 437, 440 (Pa. Super. 1939).

6. A defect in sidewalk may be so trivial that the property owner or municipality cannot be liable as a matter of law. Davis v. Potter, 340 Pa. 485, 17 A.2d 338 (Pa. 1941)(no liability where pedestrian slipped and fell on snow and ice covering an elevation in pavement common in the city.) see also, Bosack v. Pittsburgh Railways Co., 410 Pa. 558, 189 A.2d 877 (Pa. 1963) (no liability where plaintiff tripped on depression or irregularity about 11/2 to 2 inches wide located outside normal pedestrian crossing) see also Harrison v. City of Pittsburgh, 353 Pa. 22, 44 A.2d 273, 274 (Pa. 1945) (finding that property owners could not be negligent because slightly elevated manhole cover in middle of sidewalk was slight and trivial).

7. “No definite or mathematical rule can be laid down as to the depth or size of a sidewalk depression” to determine whether the defect is trivial as a matter of law. Mull v. Ickes, 994 A.2d 1137, 1141 (Pa. Super. 2010), citing, Breskin v. 535 Fifth Ave., 381 Pa. 461, 113 A.2d 316, 318 (Pa. 1955); Emmey v. Stanley Co. of America, 139 Pa. Super. 69, 10 A.2d 795, 797 (Pa. Super. 1940). Thus, if the defect is not obviously trivial, the question of negligence must be submitted to a jury. Mull, 994 A.2d at 1141, citing, Breskin, 113 A.2d at 318. The Superior Court reversed summary judgment based upon the triviality of the defect in Mull v. Ickes, supra. In that case, the defect consisted of a gap in the sidewalk measuring about two inches with a height difference of about 1 and 1/2 between slabs of concrete. “The gap was in the direct line of travel of one entering the building.” Mull v. Ickes, 994 A.2d at 1138.

Causal Connection

8. Logical and reasonable inferences as to the cause of a fall are sufficient to raise an issue of material fact and deny summary judgment. See, e.g., Marks v. Tasman, 527 Pa. 132, 137, 589 A.2d 205, 207 (Pa. 1991). In Marks, the plaintiff was an 89 year old, legally blind man who did not see what caused his fall. However, evidence placed his foot near a hole at the time of the fall. This evidence was sufficient to establish that he fell because of the defect in the sidewalk. See also, Harris by Harris v. Hanberry, 149 Pa. Commw. 300, 613 A.2d 101 (Pa. Cmwlth. 1992) (“finding that a hole on the defendant’s property alleged to have caused a fall presented a material factual question that precluded summary judgment”).

Discussion

In the present case, a genuine issue of material fact exists with respect to the cause of plaintiff’s fall. In her deposition, plaintiff stated that she fell because her foot got caught on the raised area of the porch surface located between the doormat and the front steps. The parties agree that there is an irregularity in the pavement on the porch at that location. While defendant points to contradictory evidence, plaintiff sufficiently presented an issue of fact as to causation.

As to the second issue, the defect has not been established as so trivial as to warrant summary judgment. “No definite or mathematical rule can be laid down as to the depth or size of a sidewalk depression” to determine whether the defect is trivial as a matter of law. Mull v. Ickes, 994 A.2d 1137, 1141 (Pa. Super. 2010), citing, Breskin v. 535 Fifth Ave., 381 Pa. 461, 113 A.2d 316, 318 (Pa. 1955). In the present case, the plaintiff contends she tripped on a raised area of the porch surface located directly in the middle of a primary means of exit from a public building. As in Ickes, supra, the defect in the present case was in “the direct line of travel of one entering the building.” In the present case, there is an admitted “irregularity” where plaintiff fell, located right middle of where the public would be expected to step before descending the step at a busy, heavily traversed public building. Indeed, plaintiff fell while leaving STEP in a manner and location intended for exit from a public building. This court concludes that a jury can decide that allowing this defect to exist at this location constitutes negligence.

Accordingly, the court enters the following order.

ORDER

And now, this 13th day of October, 2014, it is ordered and directed that summary judgment is denied.