author: AMMERMAN, J.,

text:
    Commonwealth v. Fisher

      C.P. of Clearfield County,
    no. 00-658-CRA.

      William Shaw, Jr., assistant district attorney, for Commonwealth.

      Ronald Collins, for defendant.
    December 19, 2001
   AMMERMAN, J.,

On June 21, 2000, Lawrence Fisher, defendant, was involved in a single vehicle accident in his 1997 Ford Explorer on the comer of Bay Road and Cayman Road in the Treasure Lake community. Following the filing of the criminal information, defendant filed an omnibus pretrial motion for relief requesting that the court quash the information based upon defendant’s assertion that the road where the accident occurred was not a “highway” or “trafficway” within the meaning of the DUI statute. On November 21, 2000, a hearing was held on the issues. Thereafter, briefs were submitted on the issue of whether the operation of the vehicle and accident occurred on a trafficway as defined in the Vehicle Code, and on February 1,2001, the court entered an opinion and order finding that Bay Road was in fact a trafficway as defined by section 102 of the Vehicle Code. A jury trial was held on June 9, 2001, and defendant was convicted of the offense of driving under the influence, a misdemeanor of the second degree, as set forth in 75 Pa.C.S. §3731(a)(l), incapable of safe driving, and 75 Pa.C.S. §3731(a)(4), driving with blood alcohol content of .10 percent or greater. Thereafter, on July 24, 2001, defendant was sentenced to serve two days incarceration in the Clearfield County Jail, with a probation term of two years, plus fines, costs and other conditions. Defendant filed post sentence motions raising several issues that were presented to the court on August 28, 2001. In compliance with the order of this court, briefs were submitted addressing the remaining outstanding issues. Following review of said briefs, the court issues the following opinion and order.

I. The Evidence Presented by the Commonwealth Regarding Whether the Crime Was Committed on a “Highway” or “Trafficway” Was Sufficient To Uphold the Jury Verdict and Accordingly, the Court Did Not Err in Denying Defendant’s Motion To Quash

The decision whether to grant a motion to quash a criminal information is within the sound discretion of the trial court and will not be overturned absent an abuse of discretion. Commonwealth v. Lebrón, 765 A.2d 293, 294 (Pa. Super. 2000). Accordingly, only where a judgment is manifestly unreasonable, where the law is not applied to the facts at hand or where the record shows that the judgment is a result of ill will, partiality or bias, will a decision be considered an abuse of discretion. Id.

A claim challenging the sufficiency of the evidence is a question of law. Commonwealth v. Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751 (2000). Evidence is sufficient when a verdict establishes each material element of the crime charged and the commission thereof by the accused beyond a reasonable doubt. Id., citing Common wealth v. Karkaria, 533 Pa. 412, 625 A.2d 1167 (1993). In determining whether evidence is sufficient, the evidence must be viewed in the light most favorable to the verdict winner, giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Widmer, 560 Pa. at 319, 744 A.2d at 751, citing Commonwealth v. Chambers, 528 Pa. 558, 599 A.2d 630 (1991).

Section 3101 of the Pennsylvania Vehicle Code provides that chapter 37, which includes the sections under which defendant was convicted, “shall apply upon highways and trafficways throughout this Commonwealth.” 75 Pa.C.S. §3101(b) (Purdon 2001). In defendant’s post sentence motions, he asserts that the Commonwealth did not offer any evidence during trial concerning the nature of Bay Road as a “highway or trafficway.” Accordingly, defendant asserts that defendant’s convictions pursuant to section 3731 of the Vehicle Code cannot stand.

The court finds defendant’s assertions to be without merit. As set forth in detail in this court’s opinion dated February 1, 2001, the Commonwealth submitted extensive pretrial evidence indicating that Bay Road is a trafficway within the privately maintained, gated community. Additionally, Officer Steve Maholtz testified at trial that the accident occurred on a “public highway or trafficway.” (Trial transcript, p. 101.) No objection to this testimony was made by the defendant, nor was any contradictory evidence presented to the jury. Therefore, Officer Maholtz’ testimony, although brief, was sufficient to establish the statutory requirement that defendant be driving on a “trafficway.” 75 Pa.C.S. §3101(b).

II. The Commonwealth’s Mention at Trial of Defendant’s Occupation As an Attorney Caused No Undue Prejudice to Defendant Such That a New Trial Is Required

Defendant objects to the Commonwealth’s submission of evidence regarding his occupation as an attorney at the trial and requests a new trial based upon his assertion that such evidence of his occupation was irrelevant and prejudicial. First, defendant asserts that his occupation as an attorney had no relevance to the central issue at trial, i.e., whether he was the operator of the Ford Explorer at the time of the accident. Pa.R.E. 401 provides that “ ‘Relevant evidence’ means evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Defendant argues that his occupation as an attorney did not make it “more or less probable that he was the operator of the Explorer at the time of the accident,” and accordingly that such evidence was irrelevant and inadmissible.

The admissibility of evidence is a matter left to the sound discretion of the trial court and that decision will not be reversed absent a showing of abuse of that discretion. Commonwealth v. Brewington, 740 A.2d 247, 253 (Pa. Super. 1999). In the case at hand, the Commonwealth introduced the fact of defendant’s occupation for limited purposes. First, such information supported the testimony of eyewitness Shannon Morgan, who was contacted after the accident by defendant and advised to contact an attorney because he was going to have her arrested. (Trial transcript, p. 52.) Evidence of defendant’s occupation supports Ms. Morgan’s testimony that she was reluctant to have further dealings with defendant following the accident, (trial transcript, p. 49) and supports an inference that the defendant was well aware of his impending criminal difficulty and prosecution as a result of his driving the car. Taken in the context of the events of the evening in question and the defendant’s actions thereafter, it can reasonably be argued that the defendant was implying to Ms. Morgan that she should not be involved in any legal proceedings. Defendant’s occupation as an attorney cannot be separated from these facts and his course of conduct. The court had originally ruled that the Commonwealth could not raise the issue of defendant’s occupation until Ms. Morgan testified that after the accident, defendant advised her that she should get an attorney, causing her to have misgivings about becoming involved in any proceedings involving defendant. The second basis upon which such evidence was relevant was for purposes of challenging the veracity of defendant who testified at trial that he was a bartender at the ski lodge, while never mentioning his legal career. (Trial transcript, p. 133.) Thirdly, such evidence was admitted for purposes of inquiring as to the bias of a witness, Alice Zimmerman, who stated that defendant was her attorney. (Trial transcript, p. 165.) The court finds that based upon the foregoing, the fact of defendant’s occupation was clearly relevant to the issues raised by the Commonwealth.

Alternatively, defendant asserts that the evidence of his occupation as an attorney taints him in the eyes of the jury, and accordingly falls within the gambit of Pa.R.E. 403 that provides: “although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice.” Defendant cites to Commonwealth v. Yeager, 314 Pa. Super. 524, 461 A.2d 281 (1983), for the proposition that there is a “widespread disrespect for attorneys,” and suggests that the Commonwealth’s focus on defendant’s occupation “promote [s] the very disrespect recognized and rebuked in Yeager ” The court finds that Yeager, a case dealing with the importance of character witness testimony to a defendant’s case, is completely inapposite to the case at hand. In Yeager, erroneous evidence of defendant’s prior arrest was introduced on cross-examination of defendant’s character witness, thus undermining his efforts to establish good reputation. The trial court instructed the jury to disregard the evidence concerning any prior arrest, and the jury convicted the defendant. The defendant appealed, asserting that he suffered prejudice beyond recourse and did not receive a fair trial. The Superior Court agreed and reversed, and in determining whether such prejudice existed despite the trial judge’s instruction, stated “[i]t would seem, all too regretfully, that respect for the law and its procedures has been colored, if not replaced, by a cynicism that promotes a suspicion among the citizenry that the court and counsel are participants in an effort to conceal the facts and the rules of evidence all too frequently screen a jury from the truth. As a result, it would have been easy surmise for a juror to conclude that appellant in fact had such an arrest record despite the statement by the court during the charge to the contrary.” Id. at 528, 461 A.2d at 283.

By contrast, there is no basis for defendant’s assertion that evidence of his occupation as an attorney had any negative effect on his efforts to establish good reputation. Moreover, such evidence was not only accurate, but was used only for the limited purposes set forth above. Accordingly, the defendant’s post sentence motion requesting a new trial based upon the submission of evidence relating to his occupation as an attorney will be denied.

III. The Commonwealth Did Not Offer Improper Character Evidence Relating to Defendant’s Occupation As an Attorney, and Defendant Is Not Entitled to a New Trial

Defendant asserts that the Commonwealth argued at trial that his occupation as an attorney, “in and of itself, established his generalized propensities to lie and manipulate,” and that such arguments were improper and prejudicial on three grounds. First, defendant asserts that because defendant did not offer at trial any evidence of his character whether associated with his occupation or otherwise, that the Commonwealth’s mention of his occupation was prohibited under Pa.R.E. 404(a)(1). Second, defendant argues that the Commonwealth’s mention of defendant’s occupation violates 42 Pa.C.S. §5918 which prohibits the eliciting of information from a person charged with a crime and called to testify regarding issues tending to show he has been of bad character. Finally, defendant asserts that the use of his occupation at trial amounts to a violation of both the United States and Pennsylvania constitutions based upon a denial of defendant’s fundamental right to defend himself against criminal charges. The court finds these arguments to be without merit, and that defendant suffered no prejudice requiring a new trial by virtue of the Commonwealth’s statements regarding his occupation.

The record does not support defendant’s contention that the Commonwealth’s evidence regarding his occupation established his propensity for dishonesty. Defendant cites to a portion of the Commonwealth’s closing argument in which the Commonwealth states that “defendant is an attorney here. He knows he’s got to create some doubt in your mind.” (Trial transcript, p. 295.) The fact of defendant’s occupation as an attorney goes to the issue of his knowledge of the law or perspective on the events at issue, i.e., the defendant’s legal training is such that he knows he must create reasonable doubt. The court does not believe, nor does defendant cite any authority for the proposition, that defendant’s profession as an attorney raises a presumption of dishonesty. Moreover, the Commonwealth’s questions were directed to defendant’s knowledge based upon his experiences and not upon his character. Defendant also points to a section of the closing where the Commonwealth states the following: “This is a 33-year-old attorney who’s been out drinking with a 21-year-old. Do you believe that he’s going to give this guy his keys and say, here, you drive?” (Trial transcript, p. 303.) This question does not imply that defendant should not be believed because he is an attorney. Rather, this statement by the Commonwealth raises the issue of whether it was reasonable to believe that an intelligent adult knowledgeable of the law would give his keys to a 21-year-old who had been drinking. A fair inference can be drawn from the evidence that the defendant would not have done- so, as Shannon Morgan testified that the defendant refused Mike Mudra’s offer to drive his car and told them that “nobody drives his car.” (Trial transcript, p. 40.) Accordingly, the court finds no violation of the Rule of Evidence 404(a)(1) warranting a new trial.

Similarly, the court finds defendant’s argument that the Commonwealth’s mention of defendant’s occupation violated 42 Pa.C.S. §5918 which provides that “[n]o person charged with any crime and called as a witness in his own behalf, shall be asked, or if asked, shall be required to answer any question . . . tending to show that he has been of bad character.” Again, the flaw in defendant’s argument in this regard is his failure to show any authority for the proposition that the mention of defendant’s occupation as a lawyer sends a message to the jury that he is dishonest, and amounts to an attack on his character. Moreover, this statute, and the case law interpreting the same, deal primarily with revealing prior criminal records or pending criminal charges against a defendant, and have no applicability in the case at hand. See Commonwealth v. Lee, 297 Pa. Super. 216, 443 A.2d 904 (1982).

Finally, defendant’s assertion that evidence of his occupation was an attempt to convict defendant on the basis of his occupation notwithstanding the burden of proof, and in violation of his rights under the United States and Pennsylvania constitutions, is again without support in the record. The court finds no evidence whatsoever that there was any improper manipulation of the burden of proof. Moreover, defendant suggests a repeated, prolonged and extensive use of the defendant’s profession by the Commonwealth. This is completely unsupported by the record. As set forth above, the Commonwealth at most mentioned defendant’s occupation for purposes of showing why the testimony presented by the Commonwealth was more believable than that presented by the defendant. Such usage had nothing to do with bad character arising from defendant’s status as an attorney, and absolutely did not alter the Commonwealth’s burden of proof in this case. Moreover, the record clearly shows that the Commonwealth satisfied its burden of establishing beyond a reasonable doubt the elements of the crimes with which defendant was charged. Accordingly, the court finds no basis upon which defendant should be granted a new trial.

IV. Defendant Is Not Entitled to a New Trial Based Upon Defendant’s Assertion That the Commonwealth Submitted Evidence to the Jury Suggesting That Defendant Engaged in Criminal Activity for Which He Was Not Charged

Defendant asserts that the Commonwealth lacked a good faith basis for claiming that defendant intimidated a witness. Specifically, defendant contends that the testimony of Shannon Morgan suggested that defendant attempted to intimidate her, that such testimony implies criminal conduct for which defendant was not charged, and in fact tainted the jury such that a new trial is required.

The remedy of a new trial is an extreme one that should only be ordered when an incident is of such a nature that the unavoidable effect is to deprive the defendant of a fair and impartial trial. Commonwealth v. Johnson, 719 A.2d 778, 787 (Pa. Super. 1998). During pretrial motions, it was established that Ms. Morgan’s statement, which had been provided during discovery, was going to be used by the Commonwealth. In conformity with the limiting direction given by the court to the prosecution during pretrial argument, the Commonwealth presented evidence that Ms. Morgan was contacted by the defendant after the accident. (Pretrial transcript, pp. 4-5; trial transcript, p. 52.) During the trial, the court instructed the jury that Ms. Morgan’s statement regarding her feelings of intimidation were irrelevant to the DUI charges pending against the defendant. This was done at the request of the defense, as the Commonwealth had originally charged the defendant with intimidation of witness under 18 Pa.C.S. §4952(a)(2), but had withdrawn the charge at the preliminary hearing. Moreover, the court asked defendant’s counsel whether there was anything further that the court should advise the jury in this regard. Defendant’s counsel stated that there was nothing further that the court should advise the jury. Nevertheless, evidence of defendant’s occupation was relevant for purposes of explaining Ms. Morgan’s initial reluctance to testify and as to the defendant’s state of mind. In sum, the court does not believe that Ms. Morgan’s testimony had the effect of depriving defendant of a fair and impartial trial, such that a new trial is required.

V. The Verdict Was Not Against the Weight of the Evidence

The trial court has discretion whether to grant a motion for a new trial based on a claim that the verdict was against the weight of the evidence. Commonwealth v. Schwenk, 777 A.2d 1149, 1155 (Pa. Super. 2001), citing Commonwealth v. Gibson, 553 Pa. Super. 648, 720 A.2d 473 (1998). The trial court’s exercise of such discretion is proper when the verdict is so contrary to the evidence as to shock one’s sense of justice. Schwenk, 777 A.2d at 1155. Accordingly, a new trial should not be ordered because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. Widmer, 560 Pa. at 320, 744 A.2d at 752.

Defendant argues that this court should exercise its discretion in this case to order a new trial, alleging that the DNA evidence submitted relating to the blood found on the visor of defendant’s vehicle indicates conclusively that defendant was not the driver and thus the jury’s verdict in this case shocks one’s sense of justice. The court disagrees and finds that the verdict in this case was not contrary to the weight of the evidence presented by the Commonwealth. First the Commonwealth presented a laboratory report and stipulation that defendant’s blood alcohol level was .18percent. (Trial transcript, pp. 97-98.) Two eyewitnesses testified that (1) they saw defendant in an intoxicated state the night of the accident, (2) that defendant got into the driver’s side of the vehicle, and (3) that defendant drove away, they followed him and observed the accident. (Trial transcript, pp. 40-42 and pp. 75-78.) Though defendant’s expert testimony regarding the DNA of blood found on the driver’s side visor of defendant’s vehicle may lend support to defendant’s theory of the case, a conflict in testimony does not warrant a new trial. Widmer, 560 Pa. at 320, 744 A.2d at 752. Accordingly, defendant’s motion for a new trial on the grounds that the verdict is contrary to the weight of the evidence will be dismissed.

VI. The Court Did Not Commit Error in Its Charge to the Jury That They Could Infer That Defendant Was Incapable of Safe Driving If They Found His Blood Alcohol To Be .10 Percent or Greater

Defendant claims that the court’s instruction to the jury that it could infer defendant was incapable of safe driving if it found his blood alcohol level to be over .10 percent impermissibly shifted the burden of proof to defendant to prove that he was capable of safe driving. As such, defendant asserts he is entitled to a new trial.

The court disagrees. A trial court has broad discretion in the phrasing of jury instructions. Commonwealth v. Rivera, 565 Pa. 289, 302, 773 A.2d 131,139 (2001). This instruction was in accordance with Pennsylvania Standard Criminal Jury Instructions 17.3731(a). Committee notes to this instruction state that this is a permissible inference based upon section 1547(d)(3) of the Vehicle Code, which provides in pertinent part

“If chemical testing of a person’s breath, blood or urine shows:
“(3) That the amount of alcohol by weight in the blood:
“(i) of an adult is 0.10 percent or more . . . this fact may be introduced into evidence if the person is charged with violating section 3731.” 75 Pa.C.S. §1547 (Purdon 2001).

Accordingly, the court finds that this jury instruction was proper and is not a sufficient basis for granting a new trial.

Wherefore, the court enters the following order:

ORDER

And now, December 19,2001, following consideration of the evidence and briefs submitted by the parties, the court hereby orders that defendant’s post sentence motions be and are hereby denied.

      . This rule provides that “Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except... [i]n a criminal case, evidence of a pertinent trait of character of the accused is admissible when offered by the accused, or by the prosecution to rebut the same.”

      . In his brief in support of post-trial motions, defendant asserts that the Commonwealth submitted evidence suggesting that defendant created evidence. In both his brief and post-trial motions, defendant fails to cite to any part of the record providing support for this assertion. Accordingly, the court will not consider this argument.

      . In paragraph 12, footnote 2, of his post sentence motion, defendant also asserts that the testimony of Tom Buchkoski, an eyewitness, should have been excluded. Defendant claims that he only became aware that Mr. Buchkoski would testify on the day of trial, and accordingly, that he was prejudiced. After an extensive on-record discussion, the court found that defendant was aware of Mr. Buchkoski’s presence in the vehicle, and that Mr. Buchkoski was listed in discovery materials received from the Commonwealth. Accordingly, the court found that Mr. Buchkoski never gave any indication to defendant that he did not know who was driving, and permitted Mr. Buchkoski to testify. The court affirms its previous finding, and disagrees that defendant suffered any prejudice in this instance.

      . Defendant states that his accident reconstruction expert, William Wetzel testified “with certainty” that defendant was not the operator of the vehicle at the time of the accident, (trial transcript, p. 205), and that the Commonwealth’s reconstruction expert could not contradict this testimony “with certainty.” The court finds this argument to be meritless. As set forth herein, a difference in testimony does not warrant a new trial. Widmer, 560 Pa. at 320, 744 A.2d at 752. In addition, although the defendant vehemently argues otherwise, evidence submitted at trial as to the nature of the accident indicated that the small spot of blood on the driver’s side visor did not necessarily have to come from the person driving the vehicle.


source: Caselaw Access Project

author: GARDNER, P.J.,

license: Public Domain

text:
    Sheehan v. Choice Hotels International Inc.

      C.P. of Lehigh County,
    no. 1999-C-0138.

      Robert N. Broker, for plaintiffs.

      Gary A. Nau, for defendants.
    August 3, 2001
   GARDNER, P.J.,

This matter is before the court on defendants’ Choice Hotels International Inc. and Parkview Motel Corporation d/b/a Comfort Suites motion for summary judgment filed December 21, 2000. Plaintiffs’ response in opposition, to defendants’ Choice Hotels International Inc. and Parkview Motel Corporation d/b/a Comfort Suites motion for summary judgment was filed January 26,2001. Each party briefed the matter.

Oral argument was held before the undersigned on August 3,2001. Immediately upon the conclusion of oral argument, in open court, on the record, and in the presence of counsel for the parties, we dictated the within bench opinion. For the reasons expressed below, we deny the motion for summary judgment.

This is a personal injury action. Plaintiffs allege that on January 30,1997, plaintiff Peggy J. Sheehan, while a business invitee on the premises of defendant Comfort Suites Hotel in Allentown, Lehigh County, Pennsylvania, was utilizing the restaurant bathroom. She contends that when she attempted to leave the bathroom stall, the door suddenly and without warning came off its hinges and struck her on the head and shoulders, causing injuries. Plaintiff-husband Thomas W. Sheehan seeks damages for loss of his wife’s consortium.

Plaintiffs contend that the door fell because of an act of negligence on the part of defendants. Plaintiffs contend that defendants failed to maintain their premises in a proper and adequate manner and negligently repaired and maintained the door.

Plaintiff proceeds on two theories of recovery. The first is negligence. The second is the legal doctrine of res ipsa loquitur. Plaintiffs also contend, as an evidentiary matter, that they are entitled to an adverse inference jury instruction because of the spoliation of evidence by defendants’ maintenance man who allegedly discarded a hinge pin from the bathroom door.

Defendants contend that plaintiffs are unable to establish that defendants created the condition and are unable to establish that defendants had actual or constructive notice of a defective condition of the bathroom stall door. Defendants argue that to permit the jury to find negligence under the circumstances would be to impermissibly permit the jury to speculate. We disagree.

On pages 36 and 37 of the deposition of Henry Beers, defendants’ maintenance man, Mr. Beers testified that prior to the accident he tapped down every one of the plastic hinge pins on every bathroom door. He tapped them down as far as they would go to make them even with the top of the door. Later in his deposition he somewhat backed down from that testimony and stated that he never tried tapping them down. He also stated that he would tap them down a little to see if they would go further, but that they never went down further than where they were. (See deposition of Henry Beers of March 14, 2000, pp. 36-37, attached as an exhibit to plaintiffs’ response in opposition to defendants’ motion for summary judgment.)

In deciding a motion for summary judgment the record must be viewed in the light most favorable to the non-moving party, and all doubts to the existence of a genuine issue of material fact must be resolved against the moving party. Rush v. Philadelphia Newspapers Inc., 732 A.2d 648, 650 (Pa. Super. 1999). Here, despite Mr. Beers’ wavering, plaintiffs are entitled, for purposes of this motion, to the assumption that a jury could find credible that part of Mr. Beers’ testimony where he indicated that he hammered the plastic hinge pin all the way down to its level position, as he initially stated.

In addition, plaintiffs’ expert professional engineer, Mark I. Marpet Ph.D., in his written expert report dated October 2, 2000 (see exhibit attached to plaintiffs’ response to the motion for summary judgment at p. 4), rendered the opinions that the reason the door fell off and injured Mrs. Sheehan was because the plastic hinge pin failed. He also opined that the cause of the hinge failure was Mr. Beers’ tapping of the hinge pin with a hammer in an effort to force it flush with the top of the door.

Plaintiffs’ evidence, if believed by the jury, would support a finding of negligence on the part of defendants which was a substantial factor in bringing about plaintiff’s injury. In other words, these matters establish a genuine issue of material fact which render summary judgment inappropriate, and which must be resolved by the jury or factfinder Rush, supra.

Where, as here, if the harmful condition is traceable to the acts of a defendant possessor of reality, or its agent’s act, then plaintiffs need not prove that defendant had notice of the harmful condition in order to hold the possessor accountable for the resulting harm. In establishing a prima facie case, a business invitee, such as Mrs. Sheehan, may show that the owner created the condition and thereby forgo proof that the owner had actual or constructive notice of the condition. Moultrey v. The Great A & P Tea Company, 281 Pa. Super. 525, 530-32, 422 A.2d 593, 596-97 (1980).

Because we have concluded that plaintiffs have established sufficient evidence of negligence to take this case to a jury on a theory of negligence, it is not necessary for us to evaluate the appropriateness of plaintiffs’ res ipsa loquitur or spoliation theories. Defendants argue that if plaintiffs are able to sufficiently establish a negligence action, then they may not rely upon the doctrine of res ipsa loquitur. Defendants also contend that plaintiffs failed to negate other reasonable causes for the loss, such as a defective pin, or other patrons hanging on the bathroom door. We disagree.

Under the circumstances of this case, plaintiffs are permitted to rely upon the alternate theories of negligence and res ipsa loquitur. See Smith v. City of Chester, 357 Pa. Super. 24, 515 A.2d 303 (1986); and Gilbert v. Korvette Inc., 457 Pa. 602, 327 A.2d 94 (1974). In Gilbert, the Superior Court of Pennsylvania adopted the res ipsa loquitur doctrine as provided in section 328D of the Restatement (Second) of Torts. This section states that it may be inferred that harm suffered by a plaintiff is caused by the negligence of the defendant when three factors are present. First, the event is of a kind which ordinarily does not occur in the absence of negligence. Second, other responsible causes, including the conduct of a plaintiff and third persons, are sufficiently eliminated by the evidence. Third, the indicated negligence is within the scope of defendant’s duty to the plaintiff.

Here, plaintiff’s conduct, if her testimony is believed, eliminates her own contributory negligence as the cause of the action. There is nothing of record to suggest that the pin failed because it was defectively manufactured or otherwise defective, other than as caused by the hammering of defendants’ maintenance man. It is not necessary that plaintiffs exclude all other possible causes of the accident beyond a reasonable doubt. All that is required is that plaintiffs present a case from which a jury may reasonably conclude that the negligence was more probably than not that of the defendants. Smith, 357 Pa. Super. at 28, 515 A.2d at 305.

While it is trae that a res ipsa loquitur instruction is not warranted in the face of clear and indubitable proof of negligence, it is also true that res ipsa loquitur is appropriate where the facts of a case lie somewhere in a gray zone between the case in which plaintiff brings no evidence of specific acts of negligence (and therefore must rely on the res ipsa loquitur inference alone), and the case in which the defendant’s negligence can be clearly ascertained from the plaintiff’s evidence, and therefore the plaintiff need not rely on the res ipsa loquitur inference at all.

In other words, a plaintiff is entitled to the res ipsa loquitur instruction in a case where the plaintiff can present some direct evidence of negligence, but cannot, beyond a doubt, pinpoint the exact cause of the accident. Smith, 357 Pa. Super. at 30-31, 515 A.2d at 306. This is the situation in the case before this court, viewing the record in the light most favorable to plaintiffs as the non-moving party in this motion for summary judgment, as we are required to do.

Concerning spoliation of evidence, plaintiffs contend that Mr. Beers discarded the plastic hinge pin after knowing that the door fell off its hinges and injured plaintiff, because he was allegedly in the bathroom shortly after her accident while she was still there. We will reserve until trial, in the context of the evidence as it unfolds at that time, whether plaintiffs are entitled to any instruction concerning an adverse inference because of the alleged spoliation of evidence. In this regard, defendants contend that their maintenance man had no reason to know that he should do anything other than throw away the defective hinge.

For all the foregoing reasons we deny defendants’ motion for summary judgment.

ORDER

Now, August 3, 2001, upon consideration of defendants’ Choice Hotels International Inc. and Parkview Motel Corporation d/b/a Comfort Suites motion for summary judgment filed December 21, 2000; upon consideration of the briefs of the parties; after oral argument held this date; and for the reasons contained in the accompanying bench opinion, it is ordered that the motion for summary judgment is denied.


author: EATON, J.,

text:
    Adler v. Adler

      C.P. of Allegheny County,
    no. F.D. 314 July Term 1980-006.

      Robert Raphael, for plaintiff.

      Chris F. Gillotti, for defendant.
    June 7, 2001
   EATON, J.,

Plaintiff Lawrence N. Adler (Husband), appeals this court’s order dated March 20, 2001, awarding 60 percent of the marital estate to defendant Barbara J. Adler (Wife), denying Wife’s request for alimony and granting Wife counsel fees of $50,000 and expert fees of $40,000. In response to this court’s order of April 17, 2001, issued pursuant to Pa.R.A.P. 1925(b), Husband filed a concise statement of matters complained of on appeal. The sole matter of which Husband complains on appeal is the award of counsel fees and expert fees to Wife. Husband contends that Wife cannot demonstrate a financial need for such fees in light of the court’s equitable distribution award to her of assets valued in excess of $2 million. Husband further contends that Wife’s misconduct during the marriage was so egregious as to justify a basis for denial of counsel fees.

The purpose of an award of counsel fees is to ensure that the financially dependent spouse will be able to maintain or defend against an action for divorce, as well as to effectuate economic justice. Schubert v. Schubert, 398 Pa. Super. 284, 580 A.2d 1351 (1990). The statutory provision governing the court’s award of fees and expenses contemplates “the administration of fair and impartial justice by placing the parties on a par in defending their rights.” Jack v. Jack, 253 Pa. Super. 538, 546, 385 A.2d 469, 473 (1978); 23 Pa.C.S. §3702. An award of counsel fees is warranted “when it will promote the fair administration of justice by enabling the dependent spouse to maintain or defend the case without being placed at a financial disadvantage.” Miller v. Miller, 744 A.2d 778, 790 (Pa. Super. 1999). “Counsel fees are awarded on [a case-by-case basis following] a review of all relevant factors, including the payer’s ability to pay, the requesting party’s financial resources, the value of the services rendered, and the property received in equitable distribution.” Id. While counsel fees are awarded only upon a showing of actual need, financial need is no longer the sole determinative factor when making an award of counsel fees. Rather, Pennsylvania has adopted an equitable approach which requires the court to review all relevant factors, including financial need. The court’s order was issued following a three-day trial on the issues of equitable distribution, counsel fees and alimony. The parties were married on December 31,1968, in Pittsburgh, Allegheny County, Pennsylvania. This was the second marriage for both parties. The parties separated in April of 1980, and have continued to live separate and apart since that date. The Husband filed the within divorce action on April 23,1980. A decree in divorce was entered on March 17, 1995. Husband did not request equitable distribution by the court until almost 20 years after separation.

Two sons were bom of this marriage. Both are emancipated. Although Wife was trained as a nurse and had worked in that profession, she did not work outside the home after the marriage. The Husband is a physician specializing in cardiology and internal medicine. At the time of the parties’ marriage, Husband had completed his education and was a partner in Krause, Krause and Adler, the predecessor to his current medical practice. Husband, approaching 68 years of age, is close to retirement.

Wife is 57 years old and in ill health. She is virtually unemployable and has become accustomed to a very high lifestyle. Husband continues to work at a successful medical practice. He has a significant separate estate valued in excess of several million dollars. Wife, in turn, has not acquired any property other than that provided to her by Husband. The court awarded Wife 60 percent of a marital estate valued at $1,388,205. Of this amount, Wife is to get approximately $383,000 cash. One of the most compelling factors considered by the court in the exercise of its discretion was the enormous disparity in the parties income and separate estates. Having carefully considered the respective financial positions of the parties, the court determined that Husband clearly has the ability to pay these fees and costs and that Wife has shown financial need. In comparing the gross income of the two parties along with their expenses, Wife is certainly in a disadvantageous position. Under similar circumstances, the Superior Court found that the trial court did not abuse its discretion in its award of counsel fees. Harasym v. Harasym, 418 Pa. Super. 486, 414 A.2d 642 (1992). While Wife received 60 percent of the marital estate and substantial assets, her assets pale in comparison to those of Husband. Further, the court determined, based on the evidence presented to it, that Wife needs to conserve the cash awarded to her to fulfill her needs so that an award of alimony is not needed.

An award of counsel fees and expenses under the circumstances of this case was necessary to put the parties on a par in this litigation. Wife received no advancement during the pendency of the litigation to defray the substantial fees and costs incurred in this complex litigation. The value of the services rendered was another important factor in the court’s award of expert fees. Here, Husband derived a significant benefit from the efforts of Wife’s expert. Husband accepted and relied upon much of Wife’s expert’s findings, therefore obviating the need for his own expert. The expert was of value to the Wife and the court with respect to an important issue on which the parties could not reach agreement. Wife contended that Husband had a deferred compensation benefit separate and distinct from the fair market value of his share of the medical practice. Husband denied any such separate benefit. Wife’s expert presented one-half of day testimony, following which the court found that the current value of Husband’s deferred compensation was $204,500. The services rendered by Wife’s expert and counsel were of value and the court finds that it would be unfair and inequitable to require Wife to pay such fees and costs out of her share of the marital estate.

Taking into account the totality of the circumstances reflected in the financial award as a whole, the court found that Wife’s request for counsel fees and expenses was reasonable and proper. Although the equitable distribution awarded to the Wife provided her with some liquid assets, the court determined, based on the testimony of the parties, that it was essential to preserve those assets for the Wife’s use and needs without the burden of the contested attorney’s fees. The assessment of the Wife’s counsel and expert fees and costs to the Husband allows Wife to defend herself in this divorce action and effectuates economic justice. Butler v. Butler, 423 Pa. Super. 530, 621 A.2d 659 (1993), reversed on other grounds, 541 Pa. 364, 663 A.2d 148 (1995).


author: HERRON J.,

text:
    Elfman v. Berman

      Richard Feldman, for plaintiffs.

      Herman P. Weinberg, Sarah E. Davies, Daryl Caplan and H. Thomas Hunt III, for defendants.
    May 8, 2001
   HERRON J.,

Plaintiffs-petitioners Joel Elfman DDS and Pennsylvania Federation Brotherhood of Maintenance of Way Employees (Penn Fed) lease office space in the defendants’ building. On April 4,2001, the City of Philadelphia Department of Licenses and Inspections (L&I) issued cease operations orders for the building due to violations of the city’s fire prevention and building codes. The plaintiffs are now locked out of their offices. The plaintiffs each petitioned for a preliminary injunction ordering their landlord to repair the building. The court grants the petitions. The following findings of fact, discussion and conclusions of law support the court’s contemporaneous order.

FINDINGS OF FACT

I. The Parties

(1) Dr. Elfman and Penn Fed lease office space in a high-rise building at 1930 Chestnut Street, Philadelphia, Pennsylvania. P-3; Pa.Fed.-l.

(2) Defendant Arnold Berman owned the building until March 31,2001 and was the plaintiffs’ original landlord. N.T. 17; P-3; Pa.Fed.-l.

(3) Defendant 1930-34 Associates, a limited partnership, bought the building on March 31, 2001 and is the plaintiffs’ current landlord. N.T. 17-18, 21, 52-53, 63; P-6; P-10; D-l.

(4) Defendant 1930-34 Corporation is the general partner of 1930-34 Associates. N.T. 66.

(5) Defendant Turchi is the sole principal of 1930-34 Associates. N.T. 21-22, 29, 76, 96.

II. Dr. Elfman’s Lease

(6) Dr. Elfman conducts a pediatric dental practice out of his office on the 19th floor of the building. N.T. 12-13; P-3.

(7) Dr. Elfman has treated more than 4,400 patients out of his office in the building over the last two years. He has one associate dentist and 14 other employees. N.T. 14.

(8) Dr. Elfman’s has a seven-year lease with a term beginning July 9, 1996 and ending June 30, 2003, with an option to renew for three more years. P-3.

(9) In Dr. Elfman’s lease, the landlord covenanted to:

(a) Provide elevator service Monday through Friday from 8 a.m. to 8 p.m. Saturday from 8 a.m. to 4 p.m.

(b) Provide heat and air conditioning as reasonably necessary Monday through Friday from 8 a.m. to 8 p.m. and Saturday 8 a.m. to 1 p.m.

(c) Clean the leased premises and common areas of the building. P-3, §7(a).

(10) The Elfman lease provided Dr. Elfman with a right of quiet enjoyment of the leased premises. P-3, §37.

(11) A separate provision in the lease, entitled “quiet enjoyment,” provides that Dr. Elfman shall have the right “to remain as lessee of the premises notwithstanding the sale ... of the building.” P-3, §48.

(12) The lease provides that, in the event of sale of the building, the purchaser would assume and agree to carry out any and all covenants and obligations of the lessor. P-3, §37(a).

III. Penn Fed’s Lease

(13) Penn Fed’s offices are on the 6th floor. N.T. 84.

(14) Penn Fed is a labor union representing, among others, workers who construct and maintain railroad tracks. Penn Fed has about 5,000 members. Penn Fed negotiates, administers and enforces collective bargaining agreements between its members and their employees and represents its members in grievance proceedings. N.T. 84.

(15) Penn Fed maintains over 75 four-drawer filing cabinets in the building. Penn Fed requires continuous and daily access to these files to perform its duties to its members. N.T. 97.

(16) Penn Fed has a lease that runs until September 30, 2004. Pa.Fed.-l.

(17) In Penn Fed’s lease, the landlord covenanted to:

(a) Provide heat as necessary between October 10 and May 20 of each year.

(b) Keep in operation during normal working hours, except Sundays and legal holidays, at least one elevator.

(c) Clean the leased space.

(d) Provide water for drinking, lavatory and toilet purposes. Pa.Fed.-l, §12.

(18) Until the locks of the building were changed on Match 31, 2001, Penn Fed had a key to the front door and 24-hour access to the building. N.T. 97.

IV. Conditions During Berman’s Ownership

(19) Under Berman’s ownership, conditions in the building deteriorated. N.T. 86.

(20) Only one of the building’s four elevators works. The one working elevator breaks down often and has no working emergency telephone. N.T. 18.

(21) Cleaning services stopped in July 2000. N.T. 19.

(22) The City of Philadelphia Department of Licenses and Inspections and the Fire Department cited Berman for code violations including electrical wiring problems, fire alarm dysfunction due to unpaid phone bills, debris blocking building exits, and falling exterior masonry. N.T. 107, 109-10; D-l.

(23) At least three times the city issued cease operations orders requiring the building to be shut for one to three days. N.T. 19-20, 112.

(24) On February 20, 2001, Dr. Elfman filed this action against Berman. P-5.

V. Conditions During Turchi’s Ownership

(25) Turchi intends to convert the entire building to residential use but cannot do so while plaintiffs’ leases are in effect. To circumvent the plaintiffs’ leases and remove the plaintiffs, Turchi intentionally allowed the building to fall into disrepair such that L&I would order closure of the building. The court makes this finding based on Turchi’s admissions to his tenants, his knowledge of the tenants’ leases and his knowledge of the neglected condition of the building. In January 2001, Turchi told Dr. Elfman and his staff that he would be the building’s new owner, that the building was unsafe, that he planned to gut the building and convert it to residential units, and that all tenants would be forced to leave. N.T. 21-22,39. On February 22,2001, Dr. Elfman’s counsel hand-delivered to Turchi’s counsel copies of the complaint in Elfman v. Berman, the Elfman lease and notices of building code violations that the L&I issued to Berman. N.T. 25; P-5. In February or March 2001, Turchi told a Penn Fed employee, Rae Ann Carson, that he would gut the building and convert it to residential units and that all tenants would have to leave. N.T. 96.

(26) On March 31, 2001,1930-34 Associates became owner of the building. N.T. 17-18.

(27) On Saturday March 31, 2001, the locks of the building were changed and Dr. Elfman had to cancel his patients’ appointments for that day. A sign on the door read:

Building Hours

7:30 a.m. — 6:00 p.m.

Monday Thru Friday

The Doors Will Be Locked At All Times You Will Not Have Access Without A Copy Of A Valid Lease

P-4; N.T. 25.

(28) On Monday, Tuesday and Wednesday, April 2-4, 2001, the building’s security guards permitted Dr. Elfman, his staff and his patients to enter the building. N.T. 26-30.

(29) Neither Dr. Elfman nor Penn Fed has a key to the new locks. N.T. 26-30, 97.

(30) On Tuesday evening, April 3, 2001, the water stopped working in the building. N.T. 29-30.

VI. The Cease Operations Orders

(31) On Wednesday, April 4, 2001, an L&I inspector inspected the building. The L&I inspector issued two cease operations orders around noon. The cease operations orders cited violations of the Fire Prevention Code and Property Maintenance Code. N.T. 30; P-10.

(32) L&I posted two cease operations notices on the front door of the building. The notices prohibited occupancy after noon, April 4, 2001. The first notice cited violations of the city’s electrical, plumbing and fire codes, with the explanation: “No Sprinkler. System Down (No Water).” In a box captioned “corrective actions needed to remove this/these condition:” the notice stated “Correct Violation.” N.T. 125; cease operations notices.

(33) The second notice cited violations of the city’s electrical and phimbing codes, with the explanation “No Water.” In the box captioned “corrective actions needed to remove this/these condition:” the notice stated “Correct Violation.” Cease operations notices.

(34) L&I required the tenants to leave the building. The building remains closed. N.T. 30,132; cease operations notices.

(35) The water system has a gravity fed tank on the 22nd floor. A pump fills the tank. The tank feeds water into the building. The tank is supposed to be sealed. N.T. 115-16.

(36) City inspectors and an engineer hired by 1930-34 Associates inspected the water system. The pump does not work. The tank has no cover. There are dirt and rust in the tank. Bird droppings are on the side of the tank. N.T. 79-80, 115-16.

(37) With no water for flushing, human waste has accumulated in the building’s toilets. N.T. 33.

(38) The heat is turned off in the building. N.T. 53.

(39) There is garbage in the common areas of the building. N.T. 33.

(40) The April 4 closing of the building harmed and continues to harm Dr. Elfman. Since April 10, 2001, Dr. Elfman has conducted his practice out of a temporary space in another dentist’s office. The temporary space is not satisfactory. It is not set up for pediatric dentistry. There are fewer dental chairs. The space is available for fewer hours per week than Dr. Elfman needs. Because of these unsatisfactory conditions, Dr. Elfman has referred about half of his patients to other dentists. N.T. 31-33.

(41) The April 4 closing of the building harmed and continues to harm Penn Fed. Since losing its office, Penn Fed has relocated to a much smaller office with fewer phone lines. Penn Fed’s files, computers, copiers and fax machines remain in the building. Penn Fed can only access its files by making an appointment with the defendants. That access is not sufficient, and Penn Fed is in danger of not being able to fulfill its obligations to its members. Though Penn Fed is negotiating for new office space in another building, that space will not be available until the end of May. N.T. 89-91.

(42) On Friday, April 6, 2001, Dr. Elfman amended the complaint against Berman to include John Turchi and John Turchi Partnership — which Dr. Elfman later learned is called 1930-34 Associates — as defendants, and filed a petition for a temporary restraining order and preliminary injunction. On the same day, the court issued a temporary restraining order directing Turchi and the John Turchi Partnership “to take all steps necessary to immediately restore the supply of water to the building;... to contact the City of Philadelphia Department of Licenses and Inspections to request the reopening of the building immediately upon the supply of water being restored; [and] immediately take all steps, once the water is restored to certify the sprinkler system.” Dr. Elfman posted $1,000 bond. Exhibit P-4.

(43) Apart from hiring the engineer to inspect the water tank, defendants have done nothing since April 6,2001 to fix the pump, clean and seal the tank, certify the sprinkler system, remedy the violations cited by L&I or secure the re-opening of the building. N.T. 79-80.

(44) If the conditions cited in the cease operations orders were corrected, and no further cease operations orders were issued, L&I would allow the building to re-open for business. N.T. 141.

DISCUSSION

I. Turchi and 1930-34 Associates Waived Any Objection to Improper Service of Dr. Elfman’s Amended Complaint

In their post-hearing pleadings, Dr. Turchi and 1930-34 Associates objected for the first time to the service of Dr. Elfman’s complaint. The court overrules the objection. “Once a party takes action on the merits of a case, he waives his right to object to defective service of process.” Ball v. Barber, 423 Pa. Super. 358, 361-62, 621 A.2d 156, 158 (1993). Before objecting to service, counsel for the defendants entered into a stipulation of facts on the merits of the case, appeared at the preliminary injunction hearing, cross-examined Dr. Elfman’s witnesses, and made oral argument on the merits of Dr. Elfman’s case. By appearing and participating in the merits of the case without objecting to defective service, the defendants waived the objection and recognized the court’s jurisdiction. Peterson v. Philadelphia Suburban Transportation Co., 435 Pa. 232, 242, 255 A.2d 577, 583 (1969) (“[Ojne can waive [improper] service of process by various means, and become a party to a suit by voluntary appearance.”); Weaver v. Martin, 440 Pa. Super. 185, 193, 655 A.2d 180, 184 (1995) (holding that defendant became party to an action by voluntarily entering an appearance before filing preliminary objection to improper service of process); Ball, 423 Pa. Super. at 362, 621 A.2d at 158 (holding that defendant waived an objection to defective service by filing a notice of deposition before filing preliminary objections to service); Cinque v. Asare, 401 Pa. Super. 339, 343, 585 A.2d 490, 492 (1990) (“Defects in service of process must be raised in preliminary objections” and are waivable).

II. The Court Grants the Petitions for Preliminary Injunction

The plaintiffs ask the court to issue a preliminary injunction ordering Turchi, 1930-34 Associates and 1930-34 Corporation (together, the Turchi defendants) to comply with the terms of the leases. The court grants the preliminary injunction.

A. Standard for Preliminary Injunction

To be entitled to a preliminary injunction, a petitioner must satisfy a four-part test: (1) the petitioner has a clear right to relief; (2) the preliminary injunction is necessary to prevent immediate and irreparable harm that cannot be compensated by monetary damages; (3) a greater injury will result by refusing to issue the injunction; and (4) the injunction will restore the parties to the status quo as it existed prior to the wrongful conduct. Valley Forge Historical Society v. Washington Memorial Chapel, 493 Pa. 491, 500, 426 A.2d 1123, 1128 (1981); Greco v. Hazleton City Authority, 721 A.2d 399, 401 (Pa. Commw. 1998). In addition, before any injunction issued becomes effective, a petitioner is required to file a bond or deposit a fixed amount of legal tender with the prothonotary. Pa.R.C.P. 1531(b).

B. Clear Right to Relief

In determining the petitioner’s right to a prelimináry injunction, it is essential that “the activity sought to be restrained is actionable, and that the injunction issued is reasonably suited to abate such activity. And unless the plaintiff’s right is clear and the wrong is manifest, a preliminary injunction will generally not be awarded.” All-Pak Inc. v. Johnston, 694 A.2d 347, 350 (Pa. Super. 1997), citing Singzon v. Department of Public Welfare, 496 Pa. 8, 436 A.2d 125, 127 (1981). To show a clear right to relief, the petitioner must show only that substantial legal questions must be resolved to determine the rights of the respective parties and need not prove the merits of the underlying claim. Chmura v. Deegan, 398 Pa. Super. 532, 535, 581 A.2d 592, 593 (1990). “[Ujnlike a party seeking a permanent injunction, a party ‘seeking a preliminary injunction is not required to establish his or her claim absolutely.’ ” Boyle by Boyle v. Pennsylvania Interscholastic Athletic Ass’n Inc., 676 A.2d 695, 699 (Pa. Commw. 1996). (citation omitted)

The leases and testimony clearly show that 1930-34 Associates covenanted to provide Dr. Elfman and Penn Fed with heat, elevator service, regular cleaning services and potable running water. Dr. Elfman’s lease contained an express covenant of quiet enjoyment of the leased premises. P-3, §37. Both plaintiffs’ leases contained implied covenants of quiet enjoyment. Lichtenfels v. Bridgeview Coal Co., 366 Pa. Super. 304, 309, 531 A.2d 22, 25 (1987). “The legal implication of the covenant, express or implied, is that the lessor will permit the tenant to enjoy fully the demised premises subject to any rights reserved to the lessor.” Checker Oil Co. of Delaware Inc. v. Harold H. Hogg Inc., 251 Pa. Super. 351, 358, 380 A.2d 815, 818 (1977) (en banc). Any wrongful act of the landlord — including denying access, withholding utilities, or altering the premises so as to make the property unsuitable for the purpose for which it was leased — that interferes with the tenant’s possession is a breach of the covenant. Lichtenfels, 366 Pa. Super. at 309, 531 A.2d at 25; Kuriger v. Cramer, 345 Pa. Super. 595, 609, 498 A.2d 1331, 1338 (1955); Pollock v. Morelli, 245 Pa. Super. 388, 392-93, 369 A.2d 458, 460 (1976). “The impairment of the lessee’s possession need not be total, but the utility of the premises must be substantially decreased by the landlord’s interference with a right or privilege which is necessary to the enjoyment of the premises.” Checker Oil Co., 251 Pa. Super. at 358, 380 A.2d at 818 (same).

At the hearing, the plaintiffs clearly showed that the Turchi defendants breached the covenants to provide heat, elevator service, water and cleaning services. The plaintiffs clearly showed that the Turchi defendants breached the covenant of quiet enjoyment and constructively evicted the plaintiffs by changing the locks on the building, failing to provide essential services, willfully neglecting the building, failing to comply with the city code such that L&I shut down the building, and failing to take all steps necessary to remove violations of the code such that L&I will re-open the building. Kelly v. Miller, 249 Pa. 314, 317, 194 A. 1055, 1056 (1915) (holding that restricting access to leased premises is a breach of the covenant of quiet enjoyment); Checker Oil Co., 251 Pa. Super. at 359, 380 A.2d at 818 (same). The plaintiffs are entitled to specific performance of these covenants. See id. (holding that tenant was entitled to mandatory permanent injunction enforcing the covenant of quiet enjoyment); Emerman v. Baldwin, 186 Pa. Super. 561, 569, 142 A.2d 440, 445 (1958) (a contract for the lease of real property is unique and may be the subject of specific performance).

The Turchi defendants assert no defense to liability on Penn Fed’s claims. The Turchi defendants assert a single defense to liability on Dr. Elfman’s claims: paragraph 7(c) of Dr. Elfman’s lease. That paragraph reads:

“Lessor reserves the right, without liability to lessee and without constituting any claim of constructive eviction or any other claim, to stop or interrupt any heating, elevator, escalator, lighting, ventilating, cooling, gas, steam, power, electricity, water, cleaning or other similar or dissimilar service and to stop or interrupt the use of any building facilities at such times as may be necessary and for as long as may reasonably be required by reason of accident, strikes or the making of repairs, alterations or improvements, or inability to secure a proper supply of coal, gas, steam, water, electricity, labor or supplies, or by reason of any other similar or dissimilar cause beyond the reasonable control of lessor. No such stoppage, or interruption will entitle lessee to any diminution or abatement of rent or other compensation nor will this lease or any of the obligations of lessee be affected or reduced by reason of any such stoppage or interruption, unless lessor fails to take appropriate measures to restore such services without undue delay.” Exhibit P-3, Elfman lease §7(c). (emphasis added)

This paragraph is no defense. First, the conditions that have caused the breaches of the leases are within the Turchi defendants’ control. Second, even were they not within the Turchi defendants’ control, the Turchi defendants have failed “to take appropriate measures to restore such services without undue delay.”

At the hearing, the Turchi defendants also argued that Dr. Elfman is not entitled to enforcement of the lease because he knew the condition of the building and “did nothing to make arrangements to protect his practice.” Dr. Elfman’s knowledge of the breaches of the lease does not relieve defendants of their obligations under the lease. To the extent that this argument is a defense of failure to mitigate damages, it must fail. Even were mitigation a defense to Dr. Elfman’s claims, the Turchi defendants have offered no evidence that Dr. Elfman failed to mitigate damages. On the contrary, Dr. Elfman mitigated damages by finding temporary office space.

An injunction ordering the Turchi defendants to comply with the covenants is reasonably suited to abate the harm to the plaintiffs. The injunction will also bar the Turchi defendants from doing any residential conversion or other renovation work that will interfere with the plaintiffs ’ right to possession of the leased premises. The injunction, however, will not order that the plaintiffs be permitted access to the building prior to the lifting of the cease operations orders beyond any access currently allowed by the cease operations orders.

C. Immediate and Irreparable Harm

In order to establish immediate and irreparable harm, a plaintiff has the burden of showing that the harm cannot be remedied by damages or that damages “can be estimated, only by conjecture and not by an accurate pecuniary standard.” West Penn Specialty MSO Inc. v. Nolan, 737 A.2d 295, 299 (Pa. Super. 1999). In determining whether the harm in question can be remedied by damages, courts are to look not at past damage, but rather to “the unbridled threat of the continuation of the violation.” Id. In addition, the harm in question must be great and irreparable. Kimmel v. Lower Paxton Township, 159 Pa. Commw. 475, 633 A.2d 1271 (1993).

In the absence of a preliminary injunction, Dr. Elfman will be unable to treat half of his patients, and he will be required to refer those patients to other dentists. This threat of continued interruption of the relationship between a doctor and his patients constitutes an immediate and irreparable harm that cannot be remedied by damages. West Penn Specialty MSO, 737 A.2d at 299.

In the absence of a preliminary injunction, Penn Fed will suffer immediate and irreparable harm: it will be unable to fulfill its obligations to its membership.

D. Restoration of the Status Quo

In granting a preliminary injunction, a court is required to “preserve the status quo, as it exists or previously existed before the acts complained of.” Smotkin v. Manhattan-Ward Inc., 363 Pa. Super. 597, 600, 526 A.2d 1223, 1225 (1987). The status quo to be preserved is “the last actual, peaceable and lawful noncontested status which preceded the pending controversy.” Valley Forge, 493 Pa. at 501, 426 A.2d at 1129.

Here, the last noncontested status was the time that 1930-34 Associates’ predecessor, Berman, was honoring his covenants in the leases. A return to the statue quo would requite the Turchi defendants to honor the covenants.

E. Greater Injury in Refusing the Injunction

The plaintiffs must show that there would be greater injury resulting from failing to grant the injunction than from granting the injunction. DiLucente Corp. v. Pennsylvania Roofing Co. Inc., 440 Pa. Super. 450, 456, 655 A.2d 1035, 1037 (1995). In considering any injuries, “[tjhere should be no balancing of conveniences, but it should be clear that greater injury would be done by refusing it than in granting it.” Pennsylvania Railroad Co. v. Driscoll, 330 Pa. 97, 101, 198 A. 130, 133 (1938).

The Turchi defendants presented no testimony as to the harm they will suffer if the court grants the injunction. Furthermore, any harm that the Turchi defendants suffer will be monetary: the costs of fixing the building and providing required services. If the court does not grant an injunction, however, the injury to Dr. Elfman and Penn Fed will be substantial and will not be remediable by money damages.

III. The Court Sets Bond at $1,000for Each Plaintiff

An order granting a preliminary injunction must require the petitioner to file a bond with the prothonotary. Pa.R.C.P. 1531(b). In determining the amount of the bond, the trial court must balance the equities involved and “require a bond which would cover damages that are reasonably foreseeable.” Greene County Citizens United by Cumpston v. Greene County Solid Waste Authority, 161 Pa. Commw. 330, 337, 636 A.2d 1278, 1281 (1994). The bond need not cover all possible damages. Christo v. Tuscany Inc., 368 Pa. Super. 9, 20, 533 A.2d 461, 467 (1987). The court may consider, among other factors, the defendants’ failure to establish their possible loss, the plaintiffs’ ability to pay, and the likelihood of actual damage to the defendants. Id. at 19-20, 533 A.2d at 466-67; Broad and Locust Associates v. Locust-Broad Realty Co., 318 Pa. Super. 38, 44, 464 A.2d 506, 509 (1983).

The preliminary injunction will require the Turchi defendants, at the very least, to clean up the garbage, provide a regular cleaning service, fix the pump, cover the water tank, certify the sprinklers, turn on the heat, provide the plaintiffs with keys, and perform other tasks. The Turchi defendants- — all of whom knew about and were noticed or subpoenaed to appear at the hearing— failed to appear at the hearing and failed to offer any evidence about the anticipated cost of performing these tasks. The Turchi defendants failed to offer any credible reason why they are not obligated to perform these tasks. Considering these factors and balancing the equities, the court determines that a bond of $1,000 from each plaintiff will be sufficient to cover reasonably foreseeable damages.

IV. The Court Denies the Request for Interim Financial Relief

The plaintiffs propose that the court award interim financial relief for extra expenses that they are incurring as a result of the Turchi defendants’ conduct. There has been no testimony as to the amounts of such expenses. The court denies the request without prejudice to the plaintiffs to seek reimbursement for these expenses as part of their damage claims. However, the court will impose a 10-day deadline on the Turchi defendants to comply with the court’s order. For each day beyond the 10 days that the Turchi defendants have not complied with the order, they shall pay a fine of $500 to each plaintiff.

V. The Court Denies the Request for Counsel Fees

The plaintiffs ask the court to award them counsel fees under 42 Pa.C.S. §2543. This statute provides that a court may award “counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter” or for “conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith.” 42 Pa.C.S. §2503(7) and (9). The plaintiffs base their request on the Turchi defendants’ failure to offer a meritorious defense to the plaintiffs’ claims that the defendants violated the lease and failed to comply with Dr. Elfman’s subpoena. The court cannot conclude at this time that the Turchi defendants’ conduct was dilatory, obdurate, vexatious, arbitrary or in bad faith. The court denies the request for counsel fees.

CONCLUSIONS OF LAW

(1) Dr. Elfman has a right to remain in his office until June 30, 2003.

(2) Penn Fed has a right to remain in its office until September 30, 2004.

(3) The change in the building’s ownership does not affect the plaintiffs’ rights under the lease.

(4) The Turchi defendants owe the plaintiffs a duty to comply with the terms of the leases, including a duty to supply potable running water, elevator service, heat and cleaning services.

(5) The Turchi defendants covenanted to provide the plaintiffs with quiet enjoyment of the leased premises. This covenant includes a duty to provide full-time access to the leased premises, a duty to comply with the City of Philadelphia Code and a duty to take all steps necessary to remove the violations cited by the cease operations orders such that the building is re-opened.

(6) The Turchi defendants have breached and continue to breach these duties.

(7) The Turchi defendants have constructively evicted the plaintiffs.

(8) The plaintiffs have a clear right to specific performance of these covenants.

(9) The plaintiffs will suffer imminent, irreparable harm not compensable by monetary damages if defendants continue to breach these duties.

(10) Greater injury will occur from denying the preliminary injunction than from granting it.

(11) A preliminary injunction will restore the parties to the status quo.

(12) A preliminary injunction ordering the Turchi defendants to comply with the lease is reasonable to abate the harm to the plaintiffs.

CONCLUSION

On the basis of the record, the court will enter a contemporaneous order granting the plaintiffs’ petition for a preliminary injunction. The portion of the order granting Penn Fed’s petition is conditioned on Penn Fed’s filing additional bond or legal tender of $1,000 with the prothonotary within five days of the entry of this order. Id. Dr. Elfman has already posted $1,000 bond and he need not post additional bond.

The Turchi defendants shall have 10 days after the entry of the order to have the building re-opened and otherwise comply with the order. For each day after the expiration of the 10 days that the building remains closed and the Turchi defendants otherwise fail to comply with the order, the Turchi defendants shall pay a fine of $500 per day to each plaintiff.

ORDER

And now, May 8, 2001, upon consideration of the plaintiffs’ petitions for preliminary injunction, the defendants’ responses, the hearing and oral argument and all relevant documentation, and in accordance with the court’s contemporaneously-filed opinion, it is hereby ordered that the petitions are granted. It is further ordered that

(1) Turchi, 1930-34 Associates and 1930-34 Corporation shall repair the water system at 1930 Chestnut Street so that plaintiffs have a supply of safe, potable running water.

(2) The Turchi defendants shall fix any defects in the sprinkler system and have that system certified by a licensed professional.

(3) The Turchi defendants shall supply heat for the building from October 10 until May 20 of each year.

(4) The Turchi defendants shall remove all garbage and debris from the common areas of the building, including trash blocking the stairways and exits.

(5) The Turchi defendants shall maintain at least one working elevator at all times and shall supply that elevator with a working communications system.

(6) The Turchi defendants shall provide daily cleaning service to the common areas of the building and the leased premises.

(7) The Turchi defendants shall give the plaintiffs keys to the front door of the building and shall give the plaintiffs and their employees full-time access to the building.

(8) The Turchi defendants shall provide access for plaintiffs’ patients and visitors Monday through Friday from 8 a.m. to 8. p.m. and Saturday from 8 a.m. to 4 p.m.

(9) The Turchi defendants shall remedy all violations identified in the cease operations orders and shall make all efforts to have the cease operations orders lifted and the building re-opened.

(10) The Turchi defendants shall not do any residential conversion or other renovation work that deprives the plaintiffs in any way of the use of the leased premises.

(11) The Turchi defendants shall have complied with the terms of this order, including securing the lifting of the cease operations orders and the re-opening of the building, within 10 days of the entry of this order. On the eleventh day after the entry of this order, the Turchi defendants shall pay a daily fine of $500 to each plaintiff. The Turchi defendants shall hand-deliver the accumulated fines for each week (Sunday through Saturday) to counsel for each plaintiff by 4:30 p.m. on the Monday immediately following that week. The fine shall be in the form of a certified check. Once the building is reopened and the Turchi defendants have otherwise complied with this order, the Turchi defendants shall petition the court to stay the fine.

(12) In the event any daily fine is paid as provided in paragraph 11 of this order, the Turchi defendants may seek an increase in the amount of the bond and the court will immediately address the request.

(13) Dr. Elfman shall maintain the $1,000 bond that he already posted.

(14) Penn Fed shall file a bond or deposit legal tender of $1,000 with the prothonotary in accordance with Pa.R.C.P. 1531(b) within five days of the entry of this order.

(15) Plaintiffs’ requests for interim financial relief and counsel fees are denied.

      . All references to Notes of Testimony (N.T.) are to testimony and oral argument at the April 12,2001 hearing on the plaintiffs’ petitions.

      . The two cease operations notices were not part of the record of the April 12,2001 hearing. The city solicitor’s office submitted copies of the notices to the court after the hearing. In their post-trial memoranda, however, all parties adopted the notices submitted by the city solicitor as the notices posted on the building on April 4, 2001 and referred to at the hearing.

      . In their post-hearing brief 1930-34 Associates and 1930-34 Corporation allege that Penn Fed has since removed its belongings from the building. The court cannot make a finding based on facts alleged in the brief.

      . The defendants do not argue that they are not bound by the covenants. 1930-34 Associates is liable as Berman’s successor. See Stone v. Marshall Oil Co., 188 Pa. 614, 41 A. 748 (1898) (stating that a covenant in a lease for the performance of some duty in connection with the possession of the land runs with the laud). Checker Oil Co. of Delaware Inc. v. Harold H. Hogg Inc., 251 Pa. Super. 351, 358, 380 A.2d 815, 818 (1977) (en banc) (“The burden of [an express or implied covenant of quiet enjoyment] runs with the land and thus passes to the transferee of the reversion or to the assignee of the landlord’s interest in the lease.”). 1930-34 Corporation is hable as the general partner of 1930-34 Associates. 15 Pa.C.S. §§8327, 8533(b). Though Turchi’s exact role in these two companies is not clear, he is liable, at least, in his official capacity as the principal of 1930-34 Associates. Therefore, the court concludes that all of the Turchi defendants are liable under the leases.

      . The covenant to provide water is explicit in Penn Fed’s lease and implicit in Dr. Elfman’s lease.