text:
    Higbee v. Curea
    C.P. of Lawerence County,
    No. 11099 2012.

      Breonna C. Frisk-Miller, for plaintiff

      Susan M. Papa, for defendant
    March 18, 2013
   PICCIONE, J.,

Before the court for disposition is a petition to intervene filed on behalf of the maternal grandparents, John and Cathy Curea (hereinafter, “maternal grandparents”). A brief factual and procedural summary of this case is as follows:

The plaintiff, Jonathan Higbee (hereinafter, “father”), and the defendant, Candace Curea (hereinafter, “mother”) are the natural parents of the minor child Jionni Curea, bom July 22,2012. Plaintiff initiated the within complaint for custody on September 19, 2012. Father was a minor child at the time this action was filed, and was therefore assisted by his mother, Colleen Higbee, in commencing this action. Shortly thereafter, on October 19, 2012, maternal grandparents filed a petition to intervene.

Following a custody conference before the custody officer on October 19, 2012, a temporary custody order was entered whereby mother was awarded primary physical custody, and father was awarded supervised partial custody rights every Sunday from 10:00 a.m. until 12:00 noon at mother’s residence. Father was awarded additional weekly supervised visitation with the minor children as agreed upon by the parties. Legal custody is shared between mother and father. The parties again appeared before the custody officer on January 4, 2013 for a review conference. Following the January 4, 2013 conference, father’s partial custody rights were expanded to provide father with increased visitation on the weekends, which would eventually result in father’s custodial time being unsupervised.

On January 31, 2013, this court held a hearing on maternal grandparents’ petition to intervene. Following the hearing, this court issued a briefing schedule. Briefs have been filed on behalf of the respective parties, and the Petition to Intervene is now ripe for disposition.

It is well established that the court’s primary concern in any custody proceeding is the best interests of the child, based on a consideration of all factors “that legitimately affect the child’s physical, intellectual, moral and spiritual wellbeing.” Swope v. Swope, 689 A.2d 264, 265 (Pa. Super. 1997). This determination is to be made on a case by case basis. Myers v. DiDomenico, 657 A.2d 956, 957 (Pa. Super. 1995).

With regard to a custody challenge by a third party, the Pennsylvania courts have expressed a strong preference for the rights of biological parents. In Charles v. Stehlik, 744 A.2d 1255 (Pa. 2000), the Supreme Court of Pennsylvania stated:

In a custody contest between two biological parents, “the burden of proof is shared equally by the contestants....” Yet, where the custody dispute is between a biological parent and a third party, the burden of proof is not evenly balanced. In such instances, “the parents have a ‘prima facie right to custody,’ which will be forfeited only if ‘convincing reasons’ appear that the child’s best interest will be served by an award to the third party. Thus, even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the [biological] parents’ side.”

Id. at 1258 (citations and quotations omitted); see also T.B. v. L.R.M., 753 A.2d 873 (Pa. Super.2000) (holding that biological parents have a prima facie right to custody over third persons) aff’d, 786 A.2d 913 (Pa. 2001).

A question of intervention, however, is a matter that is left up to the discretion of the trial court. Nemirovsky v. Nemirovsky, 776 A.2d 988, 991-992 (Pa. Super. 2001) (citing: Wilson v. State Farm Mutual Auto. Ins. Co., 517 A.2d 944, 947 (Pa. 1986). Because persons other than the natural parents are considered third parties in any custody proceeding, J.F. v. D.B., et al, 897 A.2d 1261 (Pa. Super. 2006), maternal grandparents must first establish that they have standing in this action in order to intervene and subsequently challenge the natural parents’ prima facie right to custody. McDonald v. Sohn, 762 A.2d 1101 (Pa. Super. 2000).

The Superior Court of Pennsylvania addressed the issue of intervention by grandparents in the case of K.B. II v. C.B.F., 833 A.2d 767 (Pa. Super. 2003). In C.B.F., the natural mother and natural father had one child during the course of their marriage. 833 A.2d at 769. The natural parents ultimately divorced. Id. Natural father had a history of drug and alcohol abuse, and natural mother was accused of abusing the minor child. Id. Paternal grandparents then petitioned to intervene in the ongoing custody dispute between the natural parents, which request was granted. Id. Following a custody trial, paternal grandparents were awarded primary physical custody of the minor child. Id. at 770. On appeal, natural mother challenged the trial court’s decision to permit paternal grandparents to intervene in the proceedings. Id.

In C.B.F., the Superior Court ultimately determined that under 23 Pa.C.S.A. §5313 a grandparent has automatic standing to seek physical and legal custody of his or her grandchildren, regardless of whether there has been a prior determination of unfitness by the parent or dependency of the child. Id. at 775. In reaching its conclusion, the C.B.F. Court revisited a similar case recently issued by the Supreme Court of Pennsylvania: R.M. v. Baxter, 777 A.2d 446 (2000). Id.

In Baxter, the paternal grandmother filed a custody complaint after the minor child, T.M., was adjudicated dependent. Paternal grandmother based her claim for custody on the fact that she frequently visited and cared for T.M. at the request of T.M.’s natural parents. Paternal grandmother asserted that section 5313 of the Domestic Code clearly permitted grandparents to intervene in a custody proceeding. The Supreme Court agreed and determined that

The unqualified language of [23 Pa.C.S.A. §5313] states, “A grandparent has standing to bring a petition for physical and legal custody of a grandchild.” This clear and unambiguous pronouncement cannot be ignored or modified by the subsequent reference to whom the provision, as a whole, is intended to apply. It is well settled that words and phrases contained in a statute shall be construed according to rules of grammar and according to their common and approved usage. Commonwealth v. Burnsworth, 669 A.2d 883 (Pa. 1995); 1 Pa.C.S. § 1903(a). When the words of a statute are clear and free from ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. Id. at §1921(b). The language providing that, “This subsection applies to a grandparent who...,” refers to the requirements a grandparent must establish to prevail on the merits of the custody claim. This is evidenced by the fact that “this subsection” is entitled, “Physical and legal custody,” rather than “Standing.”

Id. at 626-27, 777 A.2d at 451.

This court acknowledges that the case law discussed above applies to section 5313 of the Domestic Code, which was repealed and replaced by Section 5324. Section 5324 provides:

The following individuals may file an action under this chapter for any form of physical custody or legal custody:

(1) A parent of the child.
(2) A person who stands in loco parentis to the child.
(3) A grandparent of the child who is not in loco parentis to the child:
(i) whose relationship with the child began either with the consent of a parent of the child or under a court order;
(ii) who assumes or is willing to assume responsibility for the child; and
(iii) when one of the following conditions is met:
(A) the child has been determined to be a dependent child under 42 Pa.C.S. Ch. 63 (relating to juvenile matters);
(B) the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or
(C) the child has, for a period of at least 12 consecutive months, resided with the grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, in which case the action must be filed within six months after the removal of the child from the home.

23 Pa.C.S.A. §5324.

The maternal grandparents base their petition to intervene on the assertion that they have achieved in loco parentis status as set forth at 23 Pa.C.S.A. §5324(2). The phrase in loco parentis embodies two ideas; first, the assumption of a parental status, and, second, the discharge of parental duties. Morgan v. Smith, 241 A.2d 531, 533 (Pa. 1968). Thus, a person’s rights and liabilities arising out of an in loco parentis relationship are exactly the same as between parent and child without going through the formality of a legal adoption. Spells v. Spells, 378 A.2d 879, 882 (1977). However, in order for a person to stand in loco parentis to a child, that party “must first assume parental status through some legally cognizable means.” quoting In re Adoption of W.C.K., 748 A.2d 223, 230 (Pa.Super. 1999). It is not necessary for the third' party to have the express consent of the natural parent, but the third party must, at the very least, have an agreement by the natural parent to the placement of the child. Silfies v. Webster, 713 A.2d 639, 643 (Pa. Super. 1998).

The appellate courts have maintained that a third party may not obtain the status of in loco parentis in opposition to the wishes of a natural parent. B.A. v. E.E., 741 A.2d 1227, 1329 (Pa. 1999); Gradwell v. Strauser, 610 A.2d 999, 1003 (Pa. Super. 1992). While the doctrine of in loco parentis establishes a basis for a third party to have standing in a child custody action, it also recognizes a family’s need to protect itself from intruding third parties. J.A.L. v. E.P.H., 682 A.2d 1314, 1219-20 (Pa. Super. 1996). Although there exists a presumption that a child’s best interests are served by maintaining the family’s privacy, such a presumption “must give way where the child has established strong psychological bonds with a person who, although not a biological parent, has lived with the child and provided care, nurture, and affection, assuming in the child’s eye a stature like that of a parent.” Id. Thus, where the child has established a strong relationship with a third party who has lived with the child and provided care, nurture and affection as well as acting in the child’s eyes as a parent, a court can grant such a third party standing. T.B. v. L.R.M., 786 A.2d 913, 916 (Pa. 2001)(quoting and incorporating the decision and rationale set forth by the Superior Court in the case of J.A.L. v. E.P.H., 682 A.2d 1314, 1319-20(1996)).

The testimony and evidence at the January 31, 2013 hearing establishes that, since Jionni’s birth, maternal grandparents have been very involved in Jionni’s daily life. Jionni was bom with serious health complications that required Jionni to be hospitalized for an extended time. Maternal grandparents frequently visited the hospital during this time to provide support to both Jionni, and his mother and father. When Jionni was released from the hospital he lived with mother at maternal grandparents’ residence. Additionally, the court acknowledges that both mother and father are in high school, so maternal grandparents typically care for Jionni while his parents attend school.

Although father did file a custody complaint when Jionni was only two months old, the fact maternal grandparents assumed a substantial role in Jionni’s life since birth is undisputed. This finding does not negotiate the fact that both mother and father have both been very involved in caring for Jionni, but rather acknowledges the fact that mother and father are very young parents who are not presently capable of caring for Jionni on a full time basis. Maternal grandparents have provided a significant amount of care, nurture and affection for Jionni thus far. Recognizing that Jionni is presently only seven monthly old, and any form of bond developed between the minor child and maternal grandparents is limited in nature, the court believes that to the extent possible maternal grandparents have established a bond with the minor child.

For the foregoing reasons, the court determines that maternal grandparents have established in loco parentis status. Maternal grandparents petition to intervene is therefore granted.

ORDER OF COURT

And now, this 18th day of March, 2013, with this matter being before the court for a hearing on a petition to intervene, filed on behalf of the maternal grandparents, John and Cathy Curea, with the plaintiff, Jonathan Higbee, appearing and being represented by Breonna C. Frisk-Miller, Esquire; the defendant, Candace Curea, appearing and being represented by Susan M. Papa, Esquire; and the petitioners, John and Cathy Curea, appearing and also being represented by Susan M. Papa, Esquire, and consistent with the attached opinion, the court hereby orders and decrees as follows:

1. Petitioner’s request to intervene in this action is granted.

2. This case has previously been scheduled for a review conference on April 17, 2013.

3. Pending further order of court, the current custody order issued on January 10,2013 shall remain in full force and effect.

4. The prothonotary is directed to serve a copy of this order of court and attached opinion, by personal service or regular mail, upon counsel of record.

      . Repealed by 2010, Nov. 23, P.L. 1106, No. 112, §1. Now 23 Pa.C.S.A. §5324.


source: Caselaw Access Project

author: TUCKER, J.,

license: Public Domain

text:
    North Chestnut Hill Neighbors, Inc. v. Chestnut Hill College, Inc.

      C.P. of Philadelphia County,
    No. 152 CD 2013.

      Vincent B. Mancini, Henry Louis Schirner and Paul J. Toner, for appellants

      Peter Foster Kelsen, G. Craig Lord, Lavurence Shtasel and Jonathan Scott Goldman, for appellee
    March 21, 2013
   TUCKER, J.,

I. Procedural History

This matter comes before the court on appeal from an order granting Chestnut Hill College’s (hereinafter referred to as “appellee”) motion for summary judgment, order Entered by J. Tucker (12/26/2012). The court, upon consideration of the motion for summary judgment and responses thereto, entered an order in favor of appellee, and dismissing the complaint in declaratory judgment filed by North Chestnut Hill Neighbors, Inc. and Northwest-Wissahickon Conservancy, Inc. (hereinafter collectively referred to as “appellants”) in the Philadelphia County Court of Common Pleas. Id. The basis of that judgment is herein on appeal.

On July 15, 2011, appellants filed a praecipe to issue writ of summons in the Philadelphia Court of Common Pleas. Prae. to issue writ of summons (07/15/2011). On September 7, 2011, appellants filed a complaint against appellee, requesting a declaration that certain real property located in Philadelphia be subject to deed restrictions prohibiting appellee’s proposed development of said property. Compl. filed (09/7/2011). On October 7, 2011, appellee filed a notice of program dispute, seeking to reassign the case to the Philadelphia Court of Common Pleas Commerce Program. Not. of prog, dispute (10/07/2011). Appellants filed an answer to the notice of program dispute, and appellee filed a reply in support of the notice. Ans. (mot.pet.) filed (10/13/2011); mot./pet reply filed (10/17/2011). The court denied appellee’s request to reassign the case. Order entered by J. Herron (11/18/2011).

On October 27, 2011 appellee filed preliminary objections to appellant’s complaint in declaratory judgment. Prelim, objections (10/27/2011). OnNovember 17, 2011, appellants filed an answer to appellee’s ppreliminary objections, ans. to prelim, objections (11/17/2011). Appellee thereafter filed a reply in support of the preliminary objections, and appellants filed a sur-reply in support of the answer to the preliminary objections. Reply-prelim, object, filed (11/29/2011); reply-prelim, object, filed (12/06/2011); praecipe to suppl./ attach, filed (12/27/2011). On February 3, 2012, the court overruled appellee’s preliminary objections, order entered by J. Panepinto (02/03/2012).

On February 23, 2012, appellee filed an answer to the complaint for declaratory judgment. Ans. (02/23/2012). After discovery in this matter closed, the parties filed cross-motions for summary judgment on November 5, 2012. Discovery hearing reqst. filed (08/06/2012); order entered by J. New (08/16/2012); appellee mot. for summ. j. (11/05/2012). Appellant mot. for summ. j. (11/05/2011). On December 5 and 6, 2012, respectively, appellants and appellee filed answers to the motions for summary judgment. Ans. to appellee mot. for summ. j. (12/05/2012). Ans. to appellant mot. for summ. j. (12/06/2012). On December 26, 2012, this court entered an order granting appellee’s motion for summary judgment and dismissing the complaint for appellants’ lack of standing. Order entered by J. Tucker (12/26/2012). The relevant facts are as follows:

II. Facts

Appellee is a Pennsylvania nonprofit corporation and institution of higher learning located in Philadelphia County. Compl. (09/07/2011). Appellants are two Pennsylvania nonprofit corporations and community associations located in Philadelphia County. Id. Appellants were formed for the purpose of representing those situated in the immediate vicinity of the property at issue. Id. Specifically, appellant North Chestnut Hill Neighbors, Inc. is an association that advocates for the interests of North Chestnut Hill property owners. Id. Appellant Northwest-Wissahickon Conservancy, Inc. was incorporated to insure the “preservation, and enhancement of the long term quality of life” and conservation of’ natural, historical, and cultural resources” in Wissahickon Creek Valley. Id.

The property at the center of this litigation is alternatively known as The “Sugarloaf’ Estate (hereinafter referred to as “Sugarloaf’). Id. Sugarloaf is, among other things, located in the neighborhood known as North Chestnut Hill and situated entirely within the Wissahickon Valley Watershed. Id. It is also characterized by its “historical, geographical, environmental, horticultural and cultural significance.” Id. In 2006, Appellee purchased Sugarloaf for the purpose of expanding its campus. Id. In 2011, appellee submitted its master plan for the development of Sugarloaf; the master pilan included a proposal to develop Sugarloaf as a second campus for appellee. Id.

Consistent with appellee’s vision for the property, the master plan laid out the proposed design, construction, renovation, and/or demolition of throughways, residence halls, academic buildings, and parking facilities on Sugarloaf. Compl. (09/07/2011). Upon notice of the master plan, appellants and several other neighborhood organizations objected to the master plan. Id. In January 2010, appellee responded to these concerns by agreeing to submit certain disputed issues to non-binding mediation for the purpose of seeking “guidance in establishing a framework in which to conduct negotiations with [Appellee]” with respect to the master plan. Id. These negotiations did not yield an agreeable solution. Id.

Appellees sought rezoning of both its existing campus and Sugarloaf. Compl. filed (09/07/2011). On March 11, 2011, appellee submitted the master plan to the Philadelphia Planning Commission for approval; the master plan was approved by the Planning Commission and submitted to Philadelphia City Council for approval on April 19, 2011. Prelim, obj. (10/27/2011). A rezoning bill concerning Sugarloaf was introduced on April 28, 2011; the rezoning bill was approved by the Planning Commission and submitted to City Council on May 17, 2011. Compl. filed (09/07/2012); Prelim. Obj. (10/27/2011). On June 16, 2011, City Council passed the rezoning bill and approved the master plan on June 16, 2011. Prelim, obj. (10/27/2011). The resulting ordinance was signed into law June 22, 2011. Id.

As a direct result of the foregoing, appellants sought a declaration that Sugar loaf is subject to deed restrictions prohibiting appellee’s proposed developments, regardless of appellee’s acquisition of the required approvals by writ of summons filed July 15,2011. Id. The three separate deed restrictions cited by appellants are hereinafter respectively referred to as: (1) the Houston deed restriction, (2) the Greenfield deed restriction, and (3) the Growing Greener Restriction. Compl. (09/07/2011). The Houston deed restriction was imposed by the estate of the railroad manager and prominent benefactor and preservationist of Fairmount Park and North Chestnut Hill, Henry Howard Houston. Id. Houston and his heirs have a long history concerning the creation and preservation of Fairmount Park and North Chestnut Hill. Id. The Houston deed restriction applies to a little less than nine (9) of Sugarloaf’s approximately thirty (30) acres. Id. In relevant part, the Houston deed restriction requires the parcels subject to the restriction to be used for residential purposes unless any part is acquired by the City of Philadelphia for park purposes:

The said Lots or pieces of ground shall always be used exclusively for residential purposes and no buildings or other structures of any kind whatsoever shall ever be erected, used or sustained thereon, or on any part or subdivision thereof for other than residential purposes. Provided however, that if said Lots or pieces of ground or any part thereof, shall be acquired by the City of Philadelphia or the Commissioners of Fairmount Park for Park purposes, the foregoing restriction to residential use shall be of no further force and effect.

Id.

The Greenfield deed restriction was imposed by the Greenfield Foundation for the purpose of limiting development of Sugarloaf. Id. That restriction is contained in a 1968 deed of transfer from the Greenfield Foundation to Temple University, the former owner of Sugarloafl 'providing that:

In the event that, at any time hereafter, however remote, the Grantee shall be of the view that such use is not a reasonable and proper use of the property, and that it should be discontinued, the Grantee shall communicate such view to the Grantor and shall disclose to the Grantor (a) the considerations upon which such view is based and (b) the proposed alternative use or disposition of the property upon discontinuance of its use as a conference center. Before the Grantee shall act to effectuate a discontinuance of the property as a conference center or to make any other use or disposition of it, the Grantor may require the Grantee [to remit proceeds resulting from disposition of the property or reconvey the property to Grantor]... Under all circumstances, the Grantee agrees to guarantee the use of the property to maintain its natural beauty and preserve its essential character consistent with the character of the neighborhood surrounding it.

Id. The Growing Greener restriction arose in connection with appellee’s acquisition of Sugarloaf when appellee applied for a Community Conservation Partnerships Program grant. Id. In connection with that application, Appellee voluntarily executed a declaration with the Pennsylvania Department of Natural Resources imposing certain restrictions upon a designated area of Sugarloaf. Id.

The court, after giving full consideration to appellants’ request and appellee’s opposition, dismissed the complaint for appellants’ lack of standing. Order entered by J. Tucker (12/26/2012). Appellants timely appealed the court’s December 26, 2012 order. Appeal to Cm with. Ct. (01/25/2013). On January 31, 2013, the court ordered appellants to file a concise statement of matters complained of on appeal pursuant to Pa. R.A.P. 1925(b) (“1925(b) statement”). Order entered by J. Tucker (01/31/2013). On February 15, 2013, appellants filed a response. 1925(b) statement (02/15/2013). Due to the lengthiness of appellants’ 1925(b) statement, the court will not reproduce the entire statement per its usual custom. Instead, the court perceives the issues as follows:

a. Whether the court committed an error of law and/ or abuse of discretion when it dismissed the above-captioned matter on the basis of “standing” after another judge in this case ruled that plaintiffs did have standing as third-party beneficiaries of the Sugarloaf restrictions?
b. Whether the court committed an error of law, abuse of discretion and/or capriciously disregarded the record evidence when it ruled that plaintiffs lacked standing as third-party beneficiaries of the restrictive covenants recorded against Sugarloaf to enforce those use restrictions?

A. discussion ensues:

III. Legal Analysis

a. The court properly granted appellee’s motion for summary judgment because the prior order overruling appellee’s preliminary objections did not preclude the court from addressing the issue of appellant’s standing.

Appellants argue that the court was barred from considering the issue of appellants’ standing because the previous court resolved that particular issue in ruling on appellee’s preliminary objections. 1925(b) Statement (02/15/2013); appellants’mot. for summ. j. (11/05/2011); ans. to appellee mot. for summ. j. (12/05/2012). Specifically, appellants submit that the matter was already litigated and thus became the law of the case because it was raised by appellee in its preliminary objections. 1925(b) Statement (02/15/2013). In support of this contention, appellants point to the general rule that, once an issue is resolved, parties are barred from re-litigating the issue and courts of coordinate jurisdiction are prohibited from entertaining the issue under the doctrines of “collateral estoppel, res judicata, and/or the law-of-the-case.” Id. Appellants point out, and appellee does not dispute, that there have been no intervening changes of fact or law permitting the court to reconsider the issue of appellants’ standing. Although appellants correctly adduce the general principles of the “coordinate jurisdiction doctrine,” their application of those principles is fundamentally incorrect.

It is well settled that “under the coordinate jurisdiction rule, judges of coordinate jurisdiction sitting in the same case should not overrule each other’s decisions.” Riccio v. Am. Republic Ins. Co., 705 A.2d 422, 425 (Pa. 1997), citing Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995). This rule is based on the sound policy of promoting finality in pretrial proceedings, judicial economy and efficiency. Id. It also serves “(1) to protect the settled expectations of the parties; (2) to insure uniformity of decisions; (3) to maintain consistency during the course of a single case; (4) to effectuate the proper and streamlined administration of justice; and (5) to bring litigation to an end.” Ryan v. Berman, 813 A.2d 792, 795 (Pa. 2002), quotiong Starr, supra. Departure from this rule is only permitted under exceptional circumstances. Id. When deciding how to apply these principles to prior court rulings, the court must determine where the prior ruling occurred in the context of the procedural posture of the case. Riccio, 705 A.2d at 425, citing Goldey v. Trustees of the Univ. of Pennsylvania, 675 A.2d 264, 267 (Pa. 1996). As the Supreme Court explained in Goldey:

Where the motions differ in kind, as preliminary objections... differ from motions for summary judgment, a judge ruling on a later motion is not precluded from granting relief although another judge has denied an earlier motion. However, a later motion should not be entertained or granted when a motion of the same kind has previously been denied, unless intervening changes in the facts or the law clearly warrant a new look at the question.

Goldey, 675 A.2d 264 at 267 (emphasis added). Thus, the court must consider appellee’s motion for summary judgment in the broader procedural context of the litigation.

Determining the applicability of the coordinate jurisdiction rule in the instant case does not require a novel analysis. Indeed:

...is not intended to preclude the granting of summary judgment following the denial of preliminary objections. “The failure to present a cause of action upon which relief can be granted may be raised at any time. A motion for summary judgment is based not only upon the averments of the pleadings but may also consider discovery depositions, admissions and affidavits.”...We can discern no reason for prohibiting the consideration and granting of a summary judgment if the record as it then stands warrants such action.

Id. (quoting Salerno v. Philadelphia Newspapers, Inc., 546 A.2d 1168 (Pa. 1988) (emphasis added) (citation omitted)). Accordingly, it is established jurisprudence that a court ruling on a later motion for summary judgment is not precluded from granting relief previously denied by another court in ruling on preliminary objections. Koresko v. Farley, 844 A.2d 607, 614- 615 (Pa. Cmwlth. 2004). Therefore, appellants’ argument is specious and contradictory, and the court properly entertained appellee’s motion for summaiy judgment.

b. The court properly granted appellee’s motion for summary judgment because appellants lacked standing to enforce the deed restrictions imposed against the property at issue.

The linchpin of the dispute in this case concerns three separate deed restrictions, namely: (1) the Houston Deed restriction, (2) the Greenfield Deed restriction, and (3) the Growing Greener restriction. Compl. (09/07/2011). The essential issue underlying appellants’ lawsuit and appellee’s related motion for summary judgment is whether appellants have standing to bring the underlying complaint in declaratory judgment by virtue of the three deed restrictions. As a preliminary matter, neither party disputes the existence of the three deed restrictions. Significantly, the court is not required to resolve the underlying factual disputes concerning the deed restrictions themselves. Instead, the focus of the court’s analysis was purely upon whether appellant’s have standing in the instant matter.

Under the Pennsylvania Rules of Civil Procedure, summary judgment is proper:

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. Under this standard, a movant may successfully obtain summary judgment in their favor by demonstrating that the record does not contain sufficient evidence of facts to make out aprima facie cause of action. Id. (Note). In considering a motion for summary judgment, the court views the record in the light most favorable to the non-moving party, and resolves all doubts as to the existence of a genuine issue of material fact against the moving party. Buffalini by Buffalini v. Shrader, 535 A.2d 684, 686 (Pa. Cmwlth. 1987).

In order to have standing, appellants must demonstrate that they are “adversely affected by the matter”, namely that appellants have an interest in the outcome of the instant complaint in declaratory judgment that is “substantial, direct, and immediate.” Koresko, 844 A.2d at 616 (citations omitted). “A restrictive covenant is a restriction in an instrument relating to real estate by which the parties pledge that something will not be done.” Doylestown Twp. v. Teeling, 635 A.2d 657, 661 (Pa. Cmwlth. 1993). In Pennsylvania, restrictive covenants, although not favored by the law, are legally enforceable. Id. As such “[t]he persons initially entitled to enforce the obligation of a promise respecting the use of land are the promisee and such third persons as are also beneficiaries of the promise.” Mariner v. Rohanna, 92 A.2d 219, 220 (Pa. 1952). Indeed, third parties may be made the beneficiaries of a restriction and may enjoin its breach so long as it is clearly shown that the covenant was for their benefit. Id. at 221.

In order to establish standing as a third party beneficiaiy of a restrictive covenant, appellants must show that it was the “intention of the parties, and it must appear from the terms of the grant or from the situation of the parties and the surrounding circumstances that it was the intention of the grantor, when inserting the restriction, to create... [an] equity... which would inure to the benefit of complainant’s land and equitably be annexed as an appurtenance.” Fey v. Swick, 454 A.2d 551, 554 (Pa. Super. 1982) (internal citation omitted) (discussing the right of a person not a party thereto to enforce, in equity, a restrictive covenant); Vernon Twp. Volunteer Fire Dep’t, Inc. v. Conner, 855 A.2d 873, 879-880 (Pa. 2004) (discussing the interpretation of restrictive covenants generally). In sum, Pennsylvania courts allow third party beneficiaries standing to enforce restrictive covenants in two instances: (1) where plaintiffs are clearly identified as the third party beneficiaries of the restriction; and (2) where plaintiffs are given rights to enforce the restriction through a planned subdivision with a shared restrictive covenant. Fey, 454 A.2d at 554, Mariner, 92 A.2d at 220-221; Gey v. Beck, 568 A.2d 672, 676 (Pa. Super. 1990).

In this case, appellants are not the promisee of the three deed restrictions; therefore, in order to have standing to enforce the deed restrictions, appellants must show that they quality as third-party beneficiaries of the restrictive covenants contained in one, two or all three deed restrictions. First, appellants names do not appear anywhere in the restrictive covenants, nor are their property interests identified in the restrictive covenants. Compl. (09/07/2011). Simply put, there is no clear indication that appellants were intended as third party beneficiaries to the deed restrictions.

The Growing Greener deed restriction specifically states that “This restriction is enforceable by the [Department of Conversation and Natural Resources] and its successors.” Id. Thus, the intent of the grantor in the Growing Greener restriction was for this restriction to be enforceable only by a government agency; since appellants are not the Department of Conversation and Natural Resources, or its successor, appellants have no standing to enforce the Growing Greener deed restriction.

The Greenfield deed restriction does not specifically state who can enforce the deed restriction; however, a review of the Greenfield deed restriction shows that there are only two clearly identified parties, Greenfield and Temple. At best, the Greenfield deed restriction requires that the property maintain the “character of the neighborhood” surrounding the property. This language, “character of the neighborhood,” does not clearly identify appellants as intended beneficiaries of the restrictive covenant. In addition, Greenfield deed restriction does not relate to a common scheme, plan or subdivision.

Finally, a review of the Houston deed restriction shows that it does not relate to a common plan, and Plaintiffs are not clearly identified as intended beneficiaries of the Houston Clause deed restriction. Indeed, the Houston Deed Restriction does not clearly identify any entity other than those it references by name.

Appellants aver that they represent the interests of parties that might conceptually have standing. However, appellants have failed to make a cogent and convincing argument to this end. Other than certain opinion testimony provided by appellants, there is little persuasive evidence indicating this to be the case. Third and last, appellants have not demonstrated that they were given rights to enforce the prior deed restrictions. To the extent that appellants rely on and cite a number of cases in which they claim that neighbors, or neighborhood associations, have been granted standing to enforce restrictions, a review of these cases reveals that all of the cases cited by plaintiffs are inapplicable because they either deal with planned communities/subdi vision or are zoning cases which do not deal with restrictive covenants that run with the land. Appellants do not have standing to enforce any of the three deed restrictions.

IV. Conclusion

The court was not precluded from addressing the issues raised in appellee’s motion for summary judgment by virtue of the prior order disposing of the same issues in the context of appellee’s preliminary objections. Finally, under Pennsylvania Law the court finds no basis of standing for appellants to seek the requested relief. Appellants had ample opportunity to demonstrate standing under well settled principles of law, but were unable to do so. The court’s ruling should stand.

      . The Greenfield Foundation transferred Sugarloaf to Temple University in 1968; Temple University transferred Sugarloaf back to the Greenfield Foundation in 2005. Complaint Filed (09/07/2011). Sugarloaf was pm-chased in 2006 by appellee from Greenfield Foundation. Id.


author: NEALON, J.,

text:
    In re Objection to Nomination Paper of Marie Schumacher

      C.P. of Lackawanna County,
    No. 13 CV 1294.
    March 22, 2013
   NEALON, J.,

An elector has filed petitions seeking to set aside the nomination papers that have been filed by thirty-eight of the thirty-nine candidates who are seeking election to the government study commission at the primary election to be held on May 21, 2013. Two of the three objections raised by the elector are without merit since the challenged portions of the nomination papers are valid under the applicable state law. Although the elector’s third challenge based upon the absence of an “acceptance by candidate” oath under 53 Pa.C.S. § 2913(c) is well-founded, that deficiency in the candidates’ nomination papers is attributable to their reasonable reliance upon the deficient forms and erroneous instructions that were provided to the candidates by the Lackawanna County Department of Elections. Therefore, the government study commission candidates will be granted leave of court to amend their nomination papers nunc pro tunc to include the “acceptance by candidate” oath required by 53 Pa.C.S. § 2913(c). Their failure to do so by April 11, 2013, will warrant their removal from the primary election ballot.

I. FACTUAL BACKGROUND

Proponents of a government study commission referendum question filed a petition containing 6,101 signatures in support of a referendum question appearing on the upcoming municipal primary ballot for the-election of a government study commission to investigate and recommend the possible adoption of an optional form of govemmenttoreplaceLackawannaCounty’sexistinghome rule charter form of government. Timely objections were filed to that ballot referendum question petition, but those objections were overruled. See In re Referendum Petition for Government Study Commission, 2013 WL 1103067, at * 30 (Lacka. Co. Mar. 15, 2013); In re Objection to Ballot Referendum Petition Pursuant to 53 Pa.C.S.A. §§ 2901 et seq., 2013 WL 861610, at * 4 (Lacka. Co. Mar. 8, 2013). Additionally, the government study commission supporters’ petition seeking to confirm and validate their referendum question request pursuant to section 977 of the Election Code, 25 P.S. § 2937, was granted, and the Lackawanna County Bureau of Elections was directed to submit the following question to the electors at the next municipal primary election on May 21, 2013:

Shall a government study commission of seven members be elected to study the existing form of government of Lackawanna County, to consider the advisability of the adoption of an optional form of government, and to recommend whether or not an optional plan of government should be adopted?

In re Referendum Petition for Government Study Commission, at * 30.

If a timely and valid petition is filed for the submission of a question for the election of a government study commission, section 2912(a) of the Pennsylvania Home Rule Charter and Optional Plans Law (“HRC & OPL”) provides that “[a] governmental study commission of seven, nine or eleven members, as designated in the question, shall be elected by the qualified voters at the same election the question is submitted to the electors.” 53 Pa.C.S. § 2912(a). To that end, the Lackawanna County Department of Elections and its solicitor devised a nomination paper form to be used by candidates seeking election to the government study commission, which nomination paper was patterned after the form that had been utilized by Luzerne County for the election of its government study commission in 2009. (Transcript of proceedings (“T.P.”) on 3/21/13 at pp. 16-17). On or before the candidate filing deadline of March 12, 2013, forty candidates filed nomination papers for election to the government study commission.

On March 18, 2013, Joseph Pilchesky (“Pilchesky”) filed timely objections seeking to strike the nomination papers submitted by thirty-nine candidates. In No. 13 CV 1280, No. 13 CV 1282, No. 13 CV 1284, No. 13 CV 1290, No. 13 CV 1293 and No. 13 CV 1294, Pilchesky has challenged the joint nomination papers filed by Sarah F. Walsh, Jason M. Miller, Mary L. Oleslci, Dorothy Macciocco, Joseph M. Walsh, Catherine C. Hosie, Diane Walsh, Mirhia Noldy, Harry Kelly, Gerrie Carey, Charles Spano, Mary Rose McAndrew Spano, Charles J. Volpe, Marilyn C. Ruane, Michael J. Gianetta, Mary Jo Sheridan, Frank A. Farina, Robert R. Weber, Paul J. Catalano, J. Gaynor Cawley, David Wenzel, Robert Calpin, Maximilian Peters, Alexander J. Chelik, Lorraine Stevens, William Shanley and Dominick Perini, and argues that those candidates’ nomination papers violate section 2913 of the HRC & QPL. Pilchesky also contests those nomination papers, as well as the single candidate nomination petitions filed by Marie Schumacher (No. 13 CV 1277), Michael A. Dempsey (No. 13 CV 1278), Laureen A. Cummings (No. 13 CV 1279), Mamie O’Dea Palmer (No. 13 CV 1281), Frank J. Bolock, Jr. (No. 13 CV 1283), Michael Stuchlak, Jr. (No. 13 CV 1285), Joseph J. Brazil (No. 13 CV 1286), Gary Duncan (No. 13 CV 1287), Michael A. Catanzaro (No. 13 CV 1288), Jerry Notarianni (No. 13 CV 1289), Reginald H. Mariani (No. 13 CV 1291), and Sharon L. Gebert (No. 13 CV 1292), on the grounds that they designate a “Committee to Fill Vacancies” in Section C which is not comprised of the elected officers of the Lackawanna County Democratic or Republican political party. Last, Pilchesky seeks to set aside the nomination papers of each candidate since they do not contain the candidate’s acceptance oath required by section 2913(c) of the HRC & OPL, 53 Pa.C.S. § 2913(c). (T.P. 3/21/13 at pp. 19-42).

Once objections are filed to nomination papers, section 977 of the Election Code directs the court to “make an order fixing a time for hearing which shall not be later than ten days after the last day for filing said nomination, petition or paper....” 25 P.S. § 2937. Consequently, a hearing on Pilchesky’s objections was scheduled for and conducted on March 21, 2013, within ten days of the filing deadline of March 12, 2013. At that time, Pilchesky presented legal argument in support of his objections, and counsel representing nineteen (19) of the challenged candidates offered rebuttal arguments. In accordance with 25 P.S. § 2937, Pilchesky’s objections must be “finally determine[d]... not later than fifteen (15) days after the last day for filing said nomination petitions or papers” on March 12, 2013. See In re Nomination Petition of Rosenski, 2007 WL 2160454, at * 6 (Lacka. Co. 2007).

II. DISCUSSION

(A) STANDARD OF REVIEW

“[I]n reviewing election issues, ‘we must consider the longstanding and overriding policy in our Commonwealth to protect the elective franchise.”’ In re Nomination Papers of James, 596 Pa. 442, 447, 944 A.2d 69, 72 (2008) (quoting In re Nomination Petition of Driscoll, 577 Pa. 501, 508, 847 A.2d 44, 49 (2004)). Election laws must “be liberally construed to protect a candidate’s right to run for office and the voters’ rights to elect the candidate of their choice.” In re Nomination Petition of Gales, 54 A.3d 855, 857 (Pa. 2012). “[W]hile ‘our overriding concern at all times must be to be flexible in order to favor the right to vote,’ we must also ‘strictly enforce all provisions to prevent fraud.’” In re Nomination Papers of James, 596 Pa. at 448, 944 A.2d at 72 (quoting In re Luzerne County Return Bd., 447 Pa. 418, 420, 290 A.2d 108, 109 (1974)). Therefore, we must strike a balance between the liberal purposes of the election laws, and the enforcement of statutory provisions “relating to nominating petitions that are necessary to prevent fraud and to preserve the integrity of the election process.” In re Nomination Petition of Ford, 994 A.2d 9, 15 (Pa. Cmwlth. 2010).

Nomination papers are presumed to be valid, In re Nomination Petition of Driscoll, 577 Pa. at 508, 847 A.2d at 49, and an objector alleging defects in a nominating paper has the burden of proving such defects. In re Nomination Petition of Gales, supra; In re Nomination Petition of Flaherty, 564 Pa. 671, 679, 770 A.2d 327, 331 (2001). If the court is not convinced that the alleged defect exists, “the challenge is to be resolved in favor of the candidate.” In re Nomination Petition of Gales, supra; In re Nomination Petition of Ford, supra. Moreover, where “objections relate to...defects apparent on the face of the nomination petition or paper, the court, after hearing, may, in its discretion, permit amendments within such time and upon such terms...as the court may specify.” In re Nomination Petition of Driscoll, 577 Pa. at 509, 847 A.2d at 49 (quoting 25 P.S. § 2937).

(B) MULTIPLE CANDIDATES NOMINATED BY SAME NOMINATION PAPERS

Pilchesky objects to the nomination papers that were filed by the twenty-six (26) candidates identified in No. 13 CV 1280, No. 13 CV 1282, No. 13 CV 1284, No. 13 CV 1290, No. 13 CV 1293 and No. 13 CV 1294, and contends that those nomination papers have impermissibly listed multiple candidates on the same nomination papers. Pilchesky predicates his argument upon section 2913(a) of the HRC & OPL, which governs the nomination of candidates for the government study commission, and provides that “[e]ach candidate shall be nominated by nomination papers signed by a number of electors equal to at least 2% of the number of electors voting for the office of Governor in the last gubernatorial general election or 200 electors, whichever is less, and filed with the county board of elections not later than the tenth Tuesday prior to the date of the election.” 53 Pa.C.S. § 2913(a). Pilchesky submits that the use of the word “each” when referencing candidates in section 2913(a) denotes an individual candidate and reflects a legislative intent that nomination papers may only identify a single candidate for election to the government study commission.

Section 2912(b) of the HRC & OPL addresses the nomination and election of members of the government study commission, and states that “[e]ach candidate for the office of member of the commission shall be nominated and placed upon the ballot containing the question in the manner provided by and subject to the provisions of the Act of June 3, 1937 (P.L. 1333, No. 320), known as the Pennsylvania Election Code, which relate to the nomination of a candidate nominated by nomination papers filed for other offices elective by the voters.” 53 Pa.C.S. § 2912(b). Sections 951 to 954 of the Election Code, 25 P.S. §§ 2911-2914, govern the nomination of candidates by “nomination papers.” Section 951(c) of the Code regulates the signing and submission of nomination papers and distinctly states that “[m]ore than one candidate may be nominated by one nomination paper... [pjrovided, that each... does not nominate more candidates than there are offices to be voted for at the ensuing election.” 25 P.S. § 2911(c). See also, Swartz v. Helm, 41 Pa. D & C. 2d 322, 328-329 (Dauph. Co. 1966) (interpreting 25 P.S. § 2911(c) as permitting multiple candidates “to join their candidacies in one nomination paper.”).

Thus, so long as none of the nomination papers at issue nominates more than seven candidates for election to the Lackawanna County Government Study Commission, the listing of multiple candidates on one nomination paper is proper under Section 951(c) of the Election Code. See also, 53 Pa.C.S. § 2913(b) (“An elector may not sign nomination papers for more candidates for the commission than he could vote for at the election.”). The challenged nomination papers in No. 13 CV 1280, No. 13 CV 1282, No. 13 CV 1284, No. 13 CV 1290, No. 13 CV 1293 and No. 13 CV 1294 nominate seven or fewer candidates for election to the government study commission. As a result, those petitions are not violative of the HRC & OPL or the Election Code, and Pilchesky’s objections to those particular nomination petitions will be overruled.

(C) DESIGNATION OF COMMITTEE TO FILL VACANCIES

Pilchesky next objects to section C of the nomination papers that were prepared by the Lackawanna County Department of Elections, distributed by the Bureau to government study commission candidates, and filed by thirty-eightcurrentcandidatesforelectiontothegovemment study commission. Section C, entitled “Committee to Fill Vacancies,” requires each candidate to designate the individual(s) who the candidate has “authorized to fill any vacancy caused by the death or withdrawal of any such candidates.” Pilchesky maintains that “[tjhere is no legal authority” for a candidate to appoint such a committee to fill vacancies, and further argues that “[njone of the persons named in Section C are officers of the Democratic or Republican Party who are the persons authorized at law to fill a vacancy when a candidate is lost to withdrawal, death or some other reason.” (See, e.g., docket entry no. 1 at ¶¶ 31-32 in No. 13 CV 1277).

Unlike candidates of political parties, candidates for election to the government study commission do not run as prospective nominees of any particular political party which has been officially recognized by the county under section 901(b) of the Election Code, 25 P.S. § 2861(b). In fact, section 2912(b) of the HRC & OPL, relating to the nomination of candidates for the government study commission, specifically states that “[e]ach candidate shall be nominated and listed without any political designation....” 53 Pa.C.S. § 2912(b). Therefore, although candidates for elective office generally may appear on the primary election ballot only as registered electors of a recognized political party, an elector who is registered as an independent voter may seek election to the government study commission.

As noted above, section 2912(b) of the HRC & OPL directs that the nomination of candidates for election to the government study commission is governed by the provisions of the Pennsylvania Election Code pertaining to the nomination of candidates by nomination papers. Section 980 of the Election Code expressly states that “[i] n the case of the death or withdrawal of any candidate nominated...by nomination papers, the committee named in the original nomination papers may nominate a substitute in his place by filing in the proper office a substituted nomination certificate” setting forth certain information. 25 P.S. § 2940. By virtue of the plain language of 25 P.S. § 2940, the designation of a “Committee to Fill Vacancies” in Section C of the nomination papers is clearly authorized by the Election Code.

In support of his contention that only “officers of the Democratic or Republican party” are “authorized at law to fill a vacancy” involving a government study commission member, Pilchesky relies upon the Lackawanna County Home Rule Charter (“the County Charter”). (T.P. 3/21/13 at pp. 30-31). Section 1.2-206 of the County Charter addresses vacancies arising from the death, resignation, removal or forfeiture of any elected “county officer.” Section 1.2-206(b) states that if a vacancy in such an elected office occurs, “the executive committee of the political party of the person elected to the office in question shall submit a list of three persons to the judges of the court [en banc] within five (5) days of the vacancy,” and the court shall thereafter “appoint one of the three (3) persons recommended to temporarily fill the vacancy.” 335 Pa. Code § 1.2-206(b). Section 1.2- 206(b) is limited to vacancies in the office of “an elected officer,” as that phrase is defined in 335 Pa. Code § 1.2-201. Since a member of the government study commission is not “an elected officer” under Section 1.2-201 of the County Charter, nor has [s]he been nominated by a “political parly,” Section 1.2-206 of the County Charter is clearly inapplicable.

The designation of a “Committee to Fill Vacancies” in Section C of the nomination papers for government study commission candidates is explicitly sanctioned by 25 P.S. § 2940. Pilchesky’s contentions that “[tjhere is no legal authority” for the appointment of such a committee, and that any such vacancies may only be filled by officers of the local political parties, are without merit. Hence, his second objection to the government study commission candidates’ nomination papers will also be overruled.

(D) ABSENCE OF “ACCEPTANCE BY CANDIDATE” OATH

Pilchesky’s third challenge is predicated upon Section 2913(c) of the HRC & OPL pertaining to the “acceptance by candidate” oath which must accompany the nomination papers filed by a candidate for election to the government study commission. Section 2913(c) provides:

(c) Acceptance by candidate. - - Each nomination paper shall, before it may be filed with the county board of elections, contain under oath of the candidate an acceptance of the nomination in writing, signed by the candidate therein nominated, upon or annexed to the paper, or, if the same person be named in more than one paper, upon or annexed to one of the papers. The acceptance shall certify that the candidate is an elector, that the nominee consents to run as a candidate at the election and that, if elected, the candidate agrees to take office and serve.

53 Pa.C.S. § 2913(c). Although “[t]he word ‘shall’ can be interpreted as mandatory or merely directory,” In re Sale of Real Estate by Lackawanna County Tax Claim Bureau, 22 A.3d 308, 314 (Pa. Cmwlth. 2011), app. denied, 613 Pa. 648, 32 A.3d 1279 (2011), it is firmly “established that ‘shall’ is mandatory for purposes of statutory construction whenastatute is unambiguous.” 1-A Realty. v. Pennsylvania Public Utility Commission, 2013 WL 53718, at * 3 (Pa. Cmwlth. 2013). The Commonwealth Court has previously held that the use of the word “shall” in the provisions of the HRC & OPL governing the election of government study commission members is to be considered a mandatory directive. See Reese v. County Board of Elections of Lancaster County, 10 Pa. Cmwlth. 448, 452-454, 308 A.2d 154, 157-158 (1973) (HRC & OPL requirement that each voter “shall” be instructed that, regardless of the manner of the elector’s vote on the issue of whether a governmental study commission should be elected, [s]he may vote as to whom shall serve on such commission, is mandatory notwithstanding the absence of language prescribing the manner of giving such instruction).

It is undisputed that the Lackawanna County Department of Elections neglected to prepare an “acceptance by candidate” oath to be distributed to candidates seeking election to the Lackawanna County government study commission. (See, e.g., docket entry no. 1, exhibits B-C in No. 13 CV 1277). In addition, the “Instruction for Filing for the Office of Government Study Commission” which was printed and disseminated by the Lackawanna County Department of Elections failed to advise prospective candidates of the need to file an “acceptance by candidate” oath in compliance with 53 Pa.C.S. § 2913(c). As a direct consequence of the Department of Elections’ failure to furnish the requisite “acceptance by candidate” form and to provide accurate instructions to candidates seeking election to the government study commission, no candidate for election to the government study commission filed an “acceptance by candidate” oath in accordance with Section 2913(c) of the HRC & OPL. (T.P. 3/21/13 atpp. 34-41).

It is well settled that a court may grant nunc pro tunc relief and allow a party to belatedly submit correct filings if the original failure to do so is attributable to extraordinary circumstances involving some breakdown in the administrative process. See MKP Enterprises, Inc. v. Underground Storage Tank Indemnification Board, 39 A.3d 570, 592 (Pa. Cmwlth. 2012), app. denied, 60 A.3d 537 (Pa. 2012); Hinds v. Com., Dept. of Transp., 740 A.2d 1217, 1218-1219 (Pa. Cmwlth. 1999). The Supreme Court of Pennsylvania has concluded that “nunc pro tunc relief is appropriate where a breakdown in the administrative operations of the Election Board occurs.” In re Petition to Contest General Election for District Justice in Judicial District 36-3-03, 543 Pa. 216, 228, 670 A.2d 629, 635 (1996). Nunc pro tunc relief is particularly warranted where nomination petitions or papers are not properly filed as a result of an election official’s inadvertent error. See Nomination Petition of Hall, 26 Pa. Cmwlth. 54, 60, 362 A.2d 475, 477 (1976) (nominating petition, which “was not properly filed due to an error by the Election Bureau,” should have been “considered properly filed nunc pro tunc.”).

In Appeal of Fairview Associates, Inc., 61 Pa. Cmwlth. 404, 433 A.2d 929 (1981), the Delaware County Board of Elections advised supporters of a referendum question “that only 345 signatures were required” on their petition, “and, in reliance on the Board’s information, the electors filed a petition containing only 498 signatures.” Id. at 406, 433 A.2d at 930. However, the petition actually “needed a minimum of 573 signatures, of which it was 75 signatures shy at the time of filing.” Id. After the trial court granted the electors leave to file additional signatures nunc pro tunc, the appellant appealed “contending that the electors’ failure to obtain the proper number of signatures was a fatal, non-amendable defect.” Id.

On appeal, the Commonwealth Court noted “that the electors in this case relied upon incorrect information provided by the Board of Elections,” such that the “only issue presented...[wa]s whether or not that reliance was reasonable.” Id. at 407, 433 A.2d at 930-931. Acknowledging that “it may have been possible to ascertain from sources other than the Board of Elections the number of signatures” required by law, the Appeal of Fairview Associates Court nevertheless concluded that “the Board of Elections. ..was...an obvious and reasonable source from which to seek the required information.” Id. at 407,433 A.2d at 931. In affirming the lower court grant of nunc pro tunc relief, the Commonwealth Court reasoned:

We believe that the clear public policy favoring access to the voting franchise militates in favor of a conclusion that the public should reasonably be expected to rely on statements from Board of Election employees acting in their official capacities.We believe, therefore, that the electors’ reliance on the statements of employees of the Board of Elections was reasonable, and that the court below properly permitted the electors to file additional signatures on their petition nunc pro tunc.

Id. at 407-408, 433 A.2d at 931.

More recently, in In re Howells, 20 A.3d 617 (Pa. Cmwlth. 2011), aff’d, 611 Pa. 559, 28 A.3d 915 (2011), the Commonwealth Court had occasion to consider whether a defect in a candidate’s nominating petition could be cured nunc pro tunc where the candidate reasonably relied upon an election official’s faulty advice. In that case, a judicial candidate failed to file a statement of financial interest in compliance with section 1104(b) of the Public Official and Employee Ethics Act, which characterizes such a failure as “a fatal defect to a petition to appear on the ballot.” Id. at 619 (quoting 65 Pa.C.S. § 1104(b)(3)). The candidate opted not to file a statement of financial interest after the deputy chief clerk for the county election commission “told him that he was not required to file a statement of financial interest under Section 1104(b) of the Ethics Act.” Id. In reaffirming the reasoning in Appeal of Fairview Associates, the Commonwealth Court concluded that the lower court had properly permitted the candidate to cure the defect nunc pro tunc, stating:

As in Fairview, Howells relied on incorrect information supplied by the Election Commission and verified that information during a subsequent conversation with [the deputy chief clerk]. Although the correct information was otherwise available to him, in contrast to the facts in Fairview, we nevertheless believe that the reasoning set forth in Fairview is equally applicable here, i.e., the clear public policy favoring access to the voting franchise militates in favor of a conclusion that the public should reasonably be expected to rely on statements from Election Commission employees acting in their official capacities. Therefore, we agree with the trial court that Howells reasonably relied on the misinformation he received from the Election Commission.

Id. at 623.

We find that the candidates for election to the government study commission reasonably relied upon the flawed forms and inaccurate instructions that were provided to them by the Lackawanna County Department of Elections. Based upon the holdings in In re Howells and Appeal of Fairview Associates, the candidates’ failure to file the “acceptance by candidate” oath required by 53 Pa.C.S. § 2913(c) does not justify their removal from the ballot as candidates for election to the government study commission. Rather, those candidates should be granted leave to file their “acceptance by candidate” oaths nunc pro tunc.

During the hearing on March 21, 2013, and following considerable discussion regarding the candidates’ reasonable reliance upon the erroneous forms and mistaken guidance provided by the Election Department, counsel for Paul J. Catalano, J. Gaynor Cawley, David Wenzel, Robert Calpin, Maximilian Peters and Joseph Albert asked Pilchesky if he would agree to withdraw his objection based upon 53 Pa.C.S. § 2913(c), provided the candidates were granted nunc pro tunc relief in “recognition that [Pilchesky] would have a valid point of law in that area.” (T.P. 3/21/13 atpp. 50-51). Pilchesky replied “I’ll stipulate to that.” (Id. at p. 51). When then asked to confirm that stipulation, Pilchesky stated that he would agree to “a one-time free pass with the understanding that the county provided defective instructions, you know, and then that’s what you’re here for.” (Id.).

Accordingly, in light of our finding concerning the government study commission candidates’ reasonable reliance upon the erroneous forms and instructions provided by the Department of Elections, and pursuant to Pilchesky’s stipulation as stated on the record, we will permit the candidates to amend their nomination papers by executing and filing their “acceptance by candidate” oaths nunc pro tunc. The Lackawanna County Department of Elections will be directed to produce and deliver an “acceptance by candidate” oath to the candidates for election to the government study commission within the next ten (10) days. The language of the form developed by the Department of Elections must be in complete conformity with 53 Pa.C.S. § 2913(c). The candidates for election to the government study commission must execute and file their “acceptance by candidate” oaths with the Department of Elections by no later than April 11, 2013. The failure of a government study commission candidate to file an “acceptance by candidate” oath by April 11, 2013, will result in that candidate’s removal from the primary election ballot on May 21, 2013. An appropriate order follows.

ORDER

And now, March 22, 2013, upon consideration of the petitions filed by Joseph Pilchesky in No. 13 CV 1277, No. 13 CV 1278, No. 13 CV 1279, No. 13 CV 1280, No. 13 CV 1281, No. 13 CV 1282, No. 13 CV 1283, No. 13 CV 1284, No. 13 CV 1285, No. 13 CV 1286, No. 13 CV 1287, No. 13 CV 1288, No. 13 CV 1289, No. 13 CV 1290, No. 13 CV 1291, No. 13 CV 1292, No. 13 CV 1293 and No. 13 CV 1294 seeking to strike the nomination petitions filed by the government study commission candidates identified in those petitions, the memoranda of law and oral argument presented by the self-represented parties and counsel for the parties, and based upon the stipulation of Joseph Pilchesky as stated on the record during the hearing on March 21, 2013, it is hereby ordered and decreed that:

1. The Lackawanna County Department of Elections shall produce an “acceptance by candidate” oath under 53 Pa.C.S. § 2913(c) andshall deliverthe same to all candidates for election to the Lackawanna County government study commission by no later than April 1, 2013;

2. The language of the “acceptance by candidate” oath to be produced by the Lackawanna County Department of Elections shall be in conformity with 53 Pa.C.S. § 2913(c);

3. All candidates for election to the Lackawanna County government study commission shall file their “acceptance by candidate” oaths by no later than April 11, 2013;

4. The failure of any candidate to file an “acceptance by candidate” oath by April 11, 2013, will result in the removal of that candidate from the primary election ballot on May 21, 2013; and

5. In all other respects, the petitions to set aside filed by Joseph Pilchesky in the above-captioned matters are denied.

      . Although Joseph Albert, 1131 Rundle Street, Scranton, also filed nomination papers as a candidate for election to the government study commission, Pilchesky inadvertently neglected to challenge Mr. Albert’s nomination papers. (T.P. 3/21/13 atpp. 6-7).

      . On March 12, 2013, counsel for Frank A. Farina filed correspondence with the Lackawanna County Bureau of Elections confirming that Mr. Farina had withdrawn his nomination papers and “that Frank A. Farina shall not be a candidate of the Lackawanna County Government Study Commission.” (T.P. 3/21/13 at p. 6).

      . Section 1.2-201 identifies the “elected officers” of Lackawanna County as including three county commissioners, a controller, treasurer, district attorney, sheriff, clerk of judicial records, recorder of deeds, register of wills and coroner. 335 Pa. Code § 1.2-201 (a)-(i).


author: MOSS, /.,

text:
    Tucker v. PennDOT

      Michelle A. Fioravanti, for appellant.

      Shannon Mackereth, for appellee.
    March 22, 2013
   MOSS, /.,

On April 10, 2012, the Department of Transportation (“department”) mailed a notice to Wilford Tucker which advised him that his “driving privilege is scheduled to be suspended on 08/15/2012, because you failed to produce proof of financial responsibility on 02/01/2012, the date of your traffic offense.” The notice also informed Mr. Tucker that the legal basis for the suspension was section 1786(d) of the Vehicle Code, 75 Pa. C.S. § 1786(d), which provides that

The Department of Transportation... shall suspend the operating privilege of the owner or registrant for a period of three months if the department determines that the owner or registrant has operated or permitted the operation of the vehicle without the required financial responsibility.

On May 10,2012, Mr. Tucker filed a timely appeal from the department’s April 10, 2012 notice. On December 7, 2012, a trial was held before this court. The department called Mr. Tucker as its only witness. Mr. Tucker acknowledged that on February 1, 2012, he owned and was operating a motor vehicle when he was stopped by a police officer. He also acknowledged that he was unable to provide proof of financial responsibility when stopped. Mr. Tucker explained, however, that he had insurance on the vehicle that he was operating when he was stopped, but was unable to provide proof of that insurance because he was insured by E-Insurance and the proof was on an email from E-Insurance on a cell phone that he no longer owned at the time that he was stopped.

The police officer who stopped Mr. Tucker issued him a traffic citation based on an alleged violation of Section 1786(f) of the Vehicle Code, 75 Pa. C.S. § 1786(f). That section provides the following:

(f) Operation of a motor vehicle without required financial responsibility. —Any owner of a motor vehicle for which the existence of financial responsibility is a requirement for its legal operation shall not operate the motor vehicle or permit it to be operated upon a highway of this Commonwealth without the financial responsibility required by this chapter. In addition to the penalties provided by subsection (d), any person who fails to comply with this subsection commits a summary offense and shall, upon conviction, be sentenced to pay a fine of $300.

In addition to Mr. Tucker’s testimony, the department introduced certified records that included the February 1, 2012 citation and the department’s April 10, 2012 notice. The certified records also included Mr. Tucker’s driving record, which showed a March 30, 2012 conviction for violating section 1786(f).

Mr. Tucker introduced records showing that he had taken an appeal from the March 30, 2012 conviction. Those records showed that the appeal from the March 30, 2012 conviction was resolved by way of a negotiated plea. The plea resulted in Mr. Tucker being found not guilty of violating section 1786(f) and being found guilty of section 6308(a).

Based on the evidence submitted at the December 7, 2012 hearing, this court sustained the appeal and rescinded the suspension. The department took a timely appeal. In its statement of errors complained of on appeal, the department provided the following:

1. The trial court erred as a matter of law or abused its discretion when it sustained the license suspension appeal despite the department’s properly admitted evidence and unrebutted independent testimony of the petitioner that he was unable to provide proof of insurance, merely because the petitioner was found not guilty in the underlying criminal matter for a violation of 75 Pa. C.S. § 1786(f).
2. The trial court erred as a matter of law or abused its discretion by relying on dicta in the Commonwealth Court’s decision [in] Bradish v. Department of Transportation, Bureau of Driver Licensing, 41 A.3d 944 (Pa. Cmwlth. 2012), to determine that it did not have discretion to make its own factual findings that petitioner had been driving without financial responsibility on February 1, 2012.

I. Discussion

This case illustrates how a legal issue is created when the department seeks to suspend a licensee’s operating privilege pursuant to section 1786(d) based solely on the testimony of the operator who contends that he had insurance and on certified records relating to the citation that was issued. The department did not introduce independent evidence showing that Mr. Tucker lacked insurance on February 1,2012. Such evidence might have included records from E-Insurance or the testimony of an officer about his investigation of the issue of whether or notMr. Tucker had insurance onFebruary 1,2012 covering the vehicle that he was operating.

In a case based on an alleged violation of section 1786 (d), the department may establish a rebuttable presumption of a violation by proving that (1) the licensee’s vehicle was of the type that was required to be registered; (2) financial responsibility coverage of the licensee’s vehicle was not in place; and (3) the licensee operated the vehicle while it was not covered by the required insurance. 75 Pa. C.S. § 1786(d)(4); Fine v. Department of Transportation, 694 A.2d 364, 367 (Pa. Cmwlth. 1997). If the Department satisfies its initial burden of proving aprima facie violation, the burden of proof shifts to the licensee to prove that the vehicle was insured at the time it was driven. Capone v. Department of Transportation, 875 A.2d 1228, 1231 (Pa. Cmwlth. 2005); Fine, 694 A.2d at 367. When a licensee has pled guilty to operating a motor vehicle without the requisite financial responsibility under Section 1786(f), the department is deemed to have satisfied its initial burden by producing evidence of the guilty plea. Wible v. Department of Transportation, 670 A.2d 744, 746 (Pa. Cmwlth. 1996).

In Fine, the department suspended Mr. Fine’s driver’s license based on his entry of a guilty plea to a violation of Section 1786(f) before a magisterial district judge. Mr. Fine appealed the summary conviction to the court of common pleas and was found not guilty. He also appealed his license suspension. At the de novo license suspension appeal hearing in the court of common pleas, the department relied on the record of the summary conviction to demonstrate that Mr. Fine operated his vehicle without financial responsibility. Mr. Fine responded by presenting documentation of the not guilty verdict in the common pleas court.

The court of common pleas denied Mr. Fine’s license suspension appeal. Mr. Fine filed an appeal to the Commonwealth Court and the Commonwealth Court reversed the common pleas court. In explaining the reason for the reversal, the Commonwealth Court wrote:

Although PennDOT’s initial submission of [the] records [from the district court] may have met its burden to establish a [summary] conviction [under 75 Pa. C.S. § 1786], it is a rebuttable presumption; Licensee’s submission of a certified copy of the appeal is sufficiently clear and convincing to rebut the presumption of a conviction.... PennDOT did not meet its ultimate burden of proof because the presumption of a conviction was sufficiently rebutted by the record of the not guilty judgment in the Court of Common Pleas....

Fine, 694 A.2d at 367.

In Bradish v. Department of Transportation, 41 A.3d 944 (Pa. Cmwlth. 2012), the Commonwealth Court relied on its holding in Fine. In Bradish, as in Fine, the licensee was found guilty of section 1786(f) by a magisterial district court judge and then not guilty by a court of common pleas judge. At the hearing in the court of common pleas concerning the alleged violation of section 1786(d), the department presented a certified copy of the citation that had been issued and proof of the licensee’s conviction by the magisterial district court judge. The licensee presented the court order finding her not guilty of the summary conviction and a copy of her bank statement showing a payment for her insurance policy prior to the issuance of the citation.

The Commonwealth Court held that production of evidence showing that the conviction was overturned was sufficient by itself to rebut the presumption that the licensee had operated the vehicle without insurance. The court wrote that:

Fine is dispositive. Here, the trial court held, correctly, that PennDOT established a prima facie case, thereby establishing a rebuttable presumption that Licensee had operated a vehicle without insurance. As in Fine, however, Licensee rebutted that presumption by presenting evidence that the conviction was overturned.

Id., 41 A.3d at 946.

In its statement of errors complained of on appeal, the department cites Smith v. Department of Transportation, 141 A.2d 1247, 1250 (Pa. Cmwlth. 2000), and refers to the Commonwealth Court’s statement that “if particular conduct constitutes a crime and is also a ground for civil liability, an acquittal in a trial for the criminal offense does not bar institution of a civil action, nor even constitute evidence of innocence in the civil action, upon the rationale that proof must be established beyond a reasonable doubt in the criminal case, while in civil cases, a preponderance of the evidence will suffice.” The department does not note, however, that in Smith, the court also observed that “the department must prove the lack of financial responsibility in its civil enforcement proceedings by evidence independent of the criminal charges where those charges have not finally resulted in a guilty plea or verdict.” Id. The independent evidence supporting the department’s case in Smith was the testimony of an officer who stated that he contacted the insurance carrier named on the expired financial responsibility card presented to him by Ms. Smith and learned that the automobile was not covered at the time of the incident.

Likewise, in Dubolino v. Department of Transportation, 816 A.2d 1200 (Pa. Cmwlth. 2002), the department introduced independent evidence from an officer. The officer testified that after stopping Ms. Dubolini and believing that she was operating a vehicle without proof of insurance, he issued her a warning notice that required her to come to the police station with proof of such insurance. The officer further testified that Ms. Dubolino came to the police station the next day, but only produced information showing that she had insurance as of the day after the incident.

In the present case, the department failed to produce any evidence independent of the criminal proceeding that demonstrated that Mr. Tucker did not have insurance on February 1, 2012. No officer was called to report on the results of an investigation. No records from E-Insurance or any other insurance company were submitted by the department. Rather, the only evidence not having to do with the criminal proceeding was the testimony of Mr. Tucker. He repeatedly testified that he had insurance on the day of the incident, but was unable to provide proof because he no longer had the cell phone on which the proof allegedly existed.

Thus, the present case is like Fine and Bradish. The department was able to meet its initial burden based on the records showing a conviction of Section 1786(f), but lacked independent evidence to overcome the licensee’s evidence rebutting the department’s prima facie case.

The present case also demonstrates the potential damage that can be done to the department’s case when the district attorney’s office enters into a negotiated plea that results in a licensee being found not guilty of violating section 1786(f). A criminal conviction may be used to establish the operative facts in a subsequent civil case based on those same facts. Department of Transportation v. Mitchell, 517 Pa. 203, 212, 535 A.2d 581, 585 (1987). A plea constitutes an admission by the defendant to all the facts that are admitted by the defendant during the colloquy. Id.

In his concurring opinion in Commonwealth v. Jones, 593 Pa. 295, 311, 929 A.2d 205, 214 (2007), Justice Saylor observed that “a defendant, upon pleading guilty, admits to facts sufficient to support his plea, see Commonwealth, Department of Transportation v. Mitchell, 517 Pa. 203, 212, 535 A.2d 581, 585 (1987) (plurality) (‘[I]t is well settled that a guilty plea constitutes an admission to all of the facts averred in the indictment.’) (citing Commonwealth ex rel. Walls v. Rundle, 414 Pa. 53, 198 A. 2d 528 (1964)), and that a judge must ascertain that a factual basis exists for any guilty plea, see Pa.R.Crim.P. 590 comment.” The comment to Rule 590 explains that “[a]t a minimum the judge should ask questions to elicit the following information, [including, but not limited to]... (2) Is there a factual basis for the plea?” Thus, as part of the negotiated plea, facts should have been elicited showing that Mr. Tucker had insurance on the vehicle that he was operating on February 1, 2012 in order for the court to find him not guilty of violating section 1786(f).

Although the Commonwealth Court has not directly addressed the issue, the manner in which a criminal matter is resolved should be considered in deciding what, if any, effect the result of the criminal matter has on a hearing based on an alleged violation of section 1786(d). For example, in Smith, the criminal matter was resolved by the section 1786(f) charge being withdrawn in exchange for Ms. Smith’s plea of guilty to the charges of driving at an unsafe speed and failing to inform the police of an accident. There being no adjudication of the section 1786(f) charge, the mere fact that Ms. Smith had been charged with a violation of Section 1786(f) was irrelevant in determining whether or not she violated section 1786(d).

In Dubolino, the Commonwealth Court reported that the common pleas court found Ms. Dubolino not guilty of section 1786(f). The opinion, however, does not state whether that was by way of a plea or a trial. If the acquittal on the charge of violating Section 1786(f) was the result of a trial, then that not guilty verdict would not constitute evidence that the licensee had insurance for purpose of section 1786(d) because the proof at the criminal trial was established beyond a reasonable doubt and a lower burden of proof exists at the trial based on section 1786(d). On the other hand, if a licensee is found guilty of violating Section 1786(f) and the time for an appeal has expired, then that guilty finding should be unrebuttable and conclusive evidence that the licensee violated section 1786(d).

Most pleas are guilty pleas. The present case is unusual because Mr. Tucker was found not guilty of violating section 1786(f) as a result of a plea. While certain charges may be withdrawn, pleas do not usually involve a defendant being adjudicated not guilty of a charge. Pa.R.Crim.P 590 governs the procedure for pleas, be they pleas of guilty or not guilty. Rule 590 would appear to require the prosecutor, defense counsel and the defendant to agree that the defendant had the required insurance in order that the necessary factual basis exists for a not guilty plea to a charge of having violated section 1786(f). That factual finding may be binding in a subsequent civil proceeding involving an alleged violation of section 1786(d).

In the present case, this court does not have the transcript of the plea colloquy. Therefore, this court does not know if the court that took the not guilty plea followed Rule 590 and made a finding that the defendant had the required financial responsibility. This court concedes that the department is correct that this court overstated the importance of the not guilty plea.

The department suggests that this court should have ruled in its favor because the court stated that “the fact that he [Mr. Tucker] thinks he had some e-mail from the [sic] [E]-Insurance, and his testimony is not particularly compelling or convincing to me.” Even though the court did not find Mr. Tucker to be particularly convincing, Mr. Tucker never acknowledged that he did not have insurance. His testimony, therefore, is not the type of independent evidence that the department needed to “meet its ultimate burden of proof because the presumption of a conviction was sufficiently rebutted by the record of the not guilty judgment in the Court of Common Pleas.” Fine, 694 A.2d at 367.

II. Conclusion

For all of the foregoing reasons, the court did not err in sustaining the appeal and rescinding the suspension.

      . Section 6308(a) provides that “[t]he operator of any vehicle or any pedestrian reasonably believed to have violated any provision of this title shall stop upon request or signal of any police officer and shall, upon request, exhibit a registration card, driver’s license and information relating to financial responsibility, or other means of identification if a pedestrian or driver of a pedalcycle, and shall write their name in the presence of the police officer if so required for the purpose of establishing identity.” Although Mr. Tucker was found guilty of Section 6308(a), it may not be a crime. Section 6308(e) is titled “Penalty,” but it does not refer Section 6308(a). Rather, it provides only that “[a]ny person violating subsection (d) commits a misdemeanor of the third degree.”


author: FOX, J.,

text:
    State Farm Mutual Insurance Company v. Dill

      Elliott Tolan, for appellant

      James T. Moughan, for appellee
    March 7, 2013
   FOX, J.,

FACTS and PROCEDURAL HISTORY

Barisha Dill appeals from this court’s order dated October 1,2012, which denied her motion to strike and/or set aside arbitrators’ award. This matter originated from of a motor vehicle accident which occurred in March, 2003. On March 5, 2005 Dill filed a negligence action against the other driver (third party) involved in the accident. After suit was commenced, the carrier for the third party referred the case to attorney Kevin McNulty (NcNulty). McNulty entered his appearance and filed an Answer on April 8, 2005. On April 27, 2005, McNulty withdrew his appearance and Daniel Lewbart, Esquire, entered his appearance. Thereafter neither McNaulty nor any attorney in his office had further involvement in the third party action. Attorney Lewbart defended the other driver in that case. In 2008 the negligence action settled in Dill’s favor for the policy limits. Other than the brief period after the referral and before the transfer, McNulty claimed he never worked on the case and had no recollection of the matter.

Following the resolution of the third party claim, Dill filed an underinsured claim (UIM) against the insurance carrier for the car in which she was a passenger, State Farm Mutual Insurance Company (State Farm). Per the terms applicable insurance policy, the matter proceeded to arbitration. The arbitration panel consisted of the following members: Alan Feldman, Esquire, appointed by Ms. Dill’s counsel; Kevin McNulty, Esquire appointed by State Farm. The parties could not agree to a third neutral arbitrator. As a result, this action was commenced and State Farm requested that the court appoint a neutral arbitrator. On April 12,2012, Judge John W. Heron appointed Craig Lord, Esquire, the neutral arbitrator. Following a hearing, the arbitration panel rendered a unanimous award in favor of State Farm. Dill filed this motion to strike and/or set aside arbitrators’ award, asserting that she did not receive a fair hearing because of McNulty’s prior involvement in the third party matter. Upon review of the briefs and after oral argument, this court denied Dill’s motion.

DISCUSSION

This court’s October 1, 2012 order should be affirmed because Dill failed to establish grounds to vacate or set aside the award. An arbitration award cannot be vacated unless “it is clearly shown that a party was denied a hearing or that fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award.” Borgia v. Prudential Insurance Company, 561 Pa. 434, 440, 750 A.2d 843, 846-847 (2000) citing Runewicz v. Keystone Ins. Co., 476 Pa. 456, 461, 463, 383 A.2d 189, 192, 193 (1978); see also 42 Pa.C.S.A. §7341; Snyder v. Cress, 2002 PA Super 28, 791 A.2d 1198 (2002), at 1201. Additionally, Dill “.bears the burden to establish both the underlying irregularity and the resulting inequity by ‘clear, precise and indubitable evidence.” Gargano v. Terminix International Co., 2001 PA Super 282, 784 A.2d 188, 193 (Pa. Super. 2001). In light of the applicable standard of review in this matter, it is clear that this court’s order should be affirmed.

The crux of Dill’s argument is that because McNulty was involved briefly in the underlying third party action, he was disqualified from being a competent and fair arbitrator; and as a result she did not receive a fair hearing. She points to Longo v. Donegal Insurance Co., 610 A.2d 466 (Pa. Super. 1992), for the proposition that the inclusion of an unqualified arbitrator requires the award to be stricken or set aside. While this court agrees with that holding, this court does not agree that McNulty is an unqualified arbitrator. Mr. McNulty submitted an affidavit in which he attests that he has no recollection of or meaningful involvement in the underlying third party claim, which had been settled and resolved more than six years ago. The attorney who defended that claim was Mr. Lewbart. Further, while Dill’s counsel had notice of McNulty’s prior brief involvement in the third party claim, no objection or complaint was raised about McNulty’s appointment an arbitrator. Dill did not object when McNulty was initially appointed nor at the hearing before the panel. No petition to remove arbitrator was filed. No objection was made until after the issuance of the panel’s decision.

Dill contends that Pa.R.C.P. 1302(e) provides that a member of an arbitration panel should be disqualified for any reason that would disqualify a judge under the Code of Judicial Conduct. The Pennsylvania Rules of Judicial Conduct, Cannon 3(c)(1) provide that “Judges should disqualify themselves in a proceeding in which their impartiality might be reasonably questioned, including but not limited to instances where: (a) they have a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (b) they served as a lawyer in the matter in controversy, or a lawyer with whom they previously practiced law served during such association as a lawyer concerning the matter.” Id. However, this was not a compulsory arbitration under Pa.R.C.P. 1301 et seq. This arbitration was pursuant Dill’s underinsured motorist claim under the terms of the applicable policy with State Farm. McNaulty was selected as the defense arbitrator. In the third party action McNulty did not represent Dill or State Farm. He served briefly as counsel for the third party defendant in which Dill was the plaintiff. Further, his affidavit states that he has no knowledge of the matter. There is also no evidence of prejudice on McNulty’s part. The arbitrators’ decision in favor of State Farm was unanimous.

Further, in Longo, supra, the Superior Court also noted that “a party may waive objection to the composition of the arbitration panel if, after learning of the grounds for objection, the party nevertheless participates in the hearing and withholds objection until after the panel renders a decision. Id. at 468. This is exactly what happened here. Although Dill had a different attorney in the third party action, this being an underinsured claim, the third party action is of import and the docket accessible. Dill had ample knowledge and/or the means to discover McNulty’s brief involvement in the third party action. Thus, even if McNulty was an unqualified arbitrator, which he is not, Dill waived such objection. For the foregoing reasons, this court’s order of October 1, 2012 should be affirmed.

      . Dill, et al. v. Marshall, et al., Phila. CCP March 2005, No 00217