author: MASSIAH-JACKSON, J,

text:
    Eagle Truck Services LLP v. Wojdalski

      C.P. of Philadelphia County,
    February Term, 2010
    No. 00546

      William J. Fox, for plaintiff.

      FrancisX. Clark, for defendant Wojdalski.

      Timothy C. Connor, for defendant Robb H., Inc.
    December 19, 2013
   MASSIAH-JACKSON, J,

On the morning of November 2, 2008, a multi-alarm fire broke out at a two-stoiy garage/warehouse at an industrial park in Northeast Philadelphia. The fire started on the roof of Building 7, then extended and spread to an adjacent garage/warehouse at Building 17. Both buildings and all contents were destroyed.

The eight acre industrial park owned by Robb H., Inc. contains twelve commercial buildings and offices. The tenants of Building 7 and Building 17 initiated this civil litigation to recover damages for their property losses.

On October 31, 2013, this court presided over the non-jury trial in the above captioned matter. All counsel were well prepared, provided research materials to the court, and were strong advocates for their clients. Memoranda of Law were filed on October 30, 2013 and supplemental memoranda of law were filed on November 15, 2013. In accordance with rule 1038 of the Pennsylvania Rules of Civil Procedure, this court submits Findings of Fact and Conclusions of Law in support of the orders of judgment in favor of all plaintiffs.

I.FACTUAL BACKGROUND

1. Defendant Robb H., Inc. (“Robb FL”) owned 2900 East Orthodox Street, Philadelphia, Pennsylvania. Defendant William Hawthorne was the President of Robb H. from 1999 through 2008. This property housed multiple commercial buildings including Building 7 and Building 17. October 31, 2013, N.T. 20-21, 166-167.

2. Robb H. is a family owned commercial real estate company. October 31, 2013, N.T. 23, 25-27, 30, 164-165.

3. On July 11, 2007, Robb H. and Hart Trucking Repair and Hakan Rodop, trading as Rodop Trucking, Inc., (collectively “Rodop Trucking”) entered into a commercial lease agreement for “Building #17 and Parking Area along South Property Line as Delineated at our meeting at the Site on July 10, 2007.” Rodop Trucking used the premises for contractor’s truck repair, storage and office space. Lease — Robb H. and Hart Trucking/Rodop Trucking.

4. On January 2, 2008, Robb H. and Eagle Truck Services, LLC, Aida Rosales, and Filiberto Calzadilla (collectively “Eagle Truck”) entered into a commercial lease agreement for “Building #7 and the area immediately to the rear of said Building #7.” Eagle Truck used the premises for an auto mechanic’s shop. Lease — Robb H. and Eagle Truck.

5. Clause 3 of both leases state that the plaintiffs (Lessees) were responsible to maintain the leased property with the express exception of the roof, exterior walls, and foundation, which were to be maintained by Robb H. “Lessee shall be responsible for all repairs required, except the roof, exterior walls, and structural foundations, which shall be maintained by Lessor.”

6.Each lease contains the following identical clause 11:

11. Indemnification of Lessor. To the extent of the law, Lessor shall not be liable for any damage or injury to Lessee, or any other person, or to any property, occurring on the demised premises or any part thereof. Lessee agrees to indemnify and hold Lessor harmless from any claims for damages, which arise in connection with any such occurrence. Said indemnification shall include indemnity from any costs or fee, which Lessor may incur in defending said claim.

7. Clause 14 of both leases relates to the destruction of the premises. Clause 14 states, “[i]n the event that the building in which the demised premises may be situated is destroyed to the extent not less than one-third of the replacement costs thereof, Lessor may elect to terminate this lease whether the demised premises be injured or not.” The lease continues, “total destruction of the building in which the premises may be situated shall terminate this lease.” Lease — Both.

8. Clause 12 of the lease between Eagle Truck and Robb H. provides, “[ljessee, at his expense shall maintain plate glass and public liability insurance including bodily injury and property damage insuring Lessee and Lessor...” Lease — Eagle Truck.

9. Clause 12 of the lease between Rodop Trucking and Robb H. provides, “[ljessee, at his expense, shall maintain public liability insurance including both bodily injury and property damage insuring Lessee and Lessor...” Lease — Robb H. and Hart Trucking/Rodop Trucking.

10. In October, 2008, Mr. Filberto Calzadillo contacted Mr. Hawthorne to inform him that the roof of Building 7 was leaking. October 31, 2013, N.T. 116.

11. Defendant-Hawthome received bids from Valentino & Son and Pawel Wojdalski to install a flat rubber roof on Building 7. Mr. Hawthorne awarded Mr. Wojdalski the work because his bid was cheaper. October 31,2013, N.T. 177.

12. The roofing contract identified “Bill Hawthorne” as the purchaser of services.

13. William Hawthorne located Mr. Wojdalski from a website of contractor listings and reviews. Mr. Wojdalski was listed as a four out of five star contractor on the website. Mr. Hawthorne did not read any of the reviews. October 31, 2013, N.T. 24, 172; Hawthorne, January 10, 2013, N.T. 23.

14. Mr. Hawthorne testified that Mr. Wojdalski provided a certificate of insurance for general contracting work with no exclusions for roofing and also a brochure. October 31, 2013, N.T. 34-35, 173.

15. Mr. Hawthorne retained Mr. Wojdalski to perform two small roof patching jobs in late 2007 and April 2008. Mr. Hawthorne “didn’t see any need to” ask Mr. Wojdalski about his roofing experience prior to hiring Mr. Wojdalski for the roof patching projects. Hawthorne, January 10, 2013, N.T. 33-34, But see, Wojdalski, September 27, 2010, N.T. 129-130.

16. Mr. Hawthorne testified that he did not inspect Mr. Wojdalski’s work on the patching jobs. He was satisfied with Mr. Wojdalski’s patch work because the roof stopped leaking. Hawthorne, January 10, 2013, N.T. 37, 40.

17. After Mr. Calzadillo’s call, Mr. Hawthorne entered into a contract with Mr. Wojdalski for flat rubber roof installation on Building 7 in October, 2008. DefendantWojdalski began work on Building 7 on or about October 31, 2008 and continued rubber roof installation on November 1, 2008. October 31, 2013, N.T. 26-27, 180.

18. This contract encompassed putting a new roof on 8100 square feet of the entire Building 7. Mr. Hawthorne never inspected Mr. Wojdalski’s work on the roof of Building 7. October 31,2013, N.T. 181-183.

19. Mr. Wojdalski explained in his deposition that this type of rubber roofing installation required the use of propane roofing torches attached by hose to propane tanks. The defendant would roll out rubber roof material and heat it by torch to connect the edges. The installation of a rubber roof requires the use of fire extinguishers or buckets filled with water in the event of a fire. Wojdalski, September 27, 2010, N.T. 74-75, 108-111, 158-159.

20. Mr. Wojdalski was not certified as a roofer and did not attend any trade classes to learn how to install a torch roof. All of his experience came from on-the-job training. During his on-the-job training, Mr. Wojdalski was managed by a supervisor and was never the lead on any of the roofing projects. Mr. Wojdalski stated that he handled hot roof installation under the direction of a supervisor “around five” times prior to performing any roofing work for Mr. Hawthorne and Robb H. Wojdalski, September 27, 2010, N.T. 58-59, 115-116.

21. Mr. Wojdalski testified that his former supervisor taught him to stay on the roof for one hour after a rubber torch roof installation to be sure everything was “safe”. The defendant could not explain what types of hazards this precaution was intended to prevent. Remaining on the roof for an hour was part of procedure and workers would clean up during this time. They would “check everything”, however, the defendant could not elaborate on the procedure or how the workers “checked” to determine the roof was safe. Wojdalski, September 27, 2010, N.T. 103-105.

22. Mr. Wojdalski knew not to leave gas tanks on the roof, however, on the evening of November 1, 2008, Mr. Wojdalski left the torches and gas tanks on the roof of Building 7. Mr. Wojdalski testified that he left the gas tanks on the roof because he believed that the tanks were empty. Wojdalski, September 27, 2010, N.T. 105-106, 178-181.

23. In the early morning hours of November 2, 2008, a fire started on the roof of Building 7. Images of the open flames and explosion were captured at about 2:30 a.m. on Robb H.’s surveillance cameras. October 31, 2013. N.T. 29, 99.

24. The fire spread from Building 7 to Building 17. October 31, 2013, N.T. 97; Fire Marshall Report PR-9.

25. The fire took approximately six hours to extinguish. The Philadelphia Fire Department’s Fire Marshall’s formal report noted the cause of the fire as an “Open Flame (Roofer’s Torch).” Fire Marshall Report PR-9.

26. Building 7 was destroyed in the fire as was Eagle Truck’s repair shop including equipment, machinery, tools, and tractor trailers. Eagle Truck claims damages amounting to $115,520.00. October 31, 2013, N.T. 102-112, 117-135.

27. Building 17 was destroyed in the fire as was Rodop Trucking’s property including tires, equipment, and tools. Rodop Trucking claims damages amounting to $86,005.00. October 31, 2013, N.T. 44-46, 51-60.

II. LEGAL DISCUSSION

A. The Exculpatory Clause Does Not Relieve Robb H. or William Hawthorne from Liability.

Under Pennsylvania law, an exculpatory clause is valid if the clause satisfies three conditions. Topp Copy Products Inc. v. Singletary, 626 A.2d 98, 99 (Pa. 1993). The clause must not “contravene” public policy, the contract must be between persons and relate to their private affairs, and, the contract must not be a contract of adhesion. In Dilks v. Flohr Chevrolet, 192 A.2d 682 (Pa. 1963), the Supreme Court noted that even if an exculpatory clause of a contract is valid it will be unenforceable unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence. See, Dilks, supra, 192 A.2d at 687, quoting numerous cases.

The lease agreements here appear to satisfy the three conditions: the contracts are not contracts of adhesion, the contracts define private relationships and the use of the premises between Eagle Truck, Rodop Trucking and defendant-Robb H., and, the release does not contravene public policy. Our appellate courts have also held, however, that even if an exculpatory clause is determined to be valid, it will still be unenforceable unless the clause satisfies a four prong standard. Any instrument which diminishes the legal rights of another must spell out the intentions with great particularity. The Topp Copy court, supra, identified the four prongs at 626 A.2d 99: 1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.

Clause 3 states in pertinent part:

“Lessee shall be responsible for all repairs required, except the roof, exterior walls, and structural foundations, which shall be maintained by Lessor.”

Clause 11 states in pertinent part:

“To the extent of the law, Lessor shall not be liable for any damage or injury to Lessee, or any other person, or to any property, occurring on the demised premises or any part thereof.”

Clause 14 states in pertinent part:

“In the event that the building in which the demised premises may be situated is destroyed to an extent of not less than one-third of the replacement costs thereof, Lessor may elect to terminate this lease whether the demised premises be injured or not. A total destruction of the building in which the premises may be situated shall terminate this lease.”

This court concludes that the ambiguity in the lease agreement relating to the scope of the term “demised premises” must be construed against defendant-Robb H. While the leased properties are identified as Building 7 and Building 17, it is unclear within the language of the lease whether the term “demised premises” was intended to include the exterior parts of the building. No clause in either lease gives the tenant any responsibility or control over the exterior walls, foundation, or roof, but rather expressly reserves responsibility for the roof and the exterior on Robb H. The exculpatoiy portion of Clause 11 limits the liability of Robb H. for any negligence “occurring on the demised premises or any part thereof.” Although the lease expressly states that the parties intended to relieve Robb H. from liability for the “demised premises,” it is unclear whether or not the intention of the parties was to limit Robb H.’s liability for negligence of maintenance operations occurring on the roof.

This court concludes that although this defendant has invoked protection from Clause 11, Robb H. is unable to meet its burden to establish immunity. Robb H. is not immune from liability for negligent acts occurring on or in relation to maintenance of the roof. At best, the lease agreements do not articulate the intention of the parties. It appears that the lease agreements provide for full liability and responsibility for all such negligent acts on defendant-lessor-Robb H. where, as here, the roof of the building remains in control of the landlord.

B. Robb H. and William Hawthorne Negligently Failed to Hire a Competent and Careful Contractor

Restatement (Second) of Tort, section 411 provides:

“§411 Negligence in Selection of Contractor
An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor
(a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or
(b) to perform any duty which the employer owes to third persons”.

Section 411 imposes liability on a property owner for the negligent hiring of a contractor

when third persons are harmed as a result of such negligence.

In Mentzer v. Ognibene, 597 A.2d 604 (Pa. Superior Ct. 1991), the Superior Court noted the general principles and policy of Pennsylvania law which insulate a property owner from liability for the negligence of its independent contractor. The appellate court quoted Marshall v. SEPTA, 587 F. Supp. 258, 261-62 (E.D. Pa. 1984):

“As a general rule, the employer of an independent contractor is not liable for physical harm caused another by an act or omission of the contractor or his servants. Hader v. Coplay Cement Co., 410 Pa. 139, 189 A.2d 271 (1963); Gonzalez v. U.S. Steel Corp., 248 Pa. Super. 95, 1007[sic], 374 A.2d 1334, 1340 (1977), aff’d, 484 Pa. 277, 398 A.2d 1378 (1979); McDonough v. U.S. Steel Corp., 228 Pa. Super. 268, 273-74, 324 A.2d 542, 545 (1974). See Restatement (Second) of Torts § 409. An independent contractor is in possession of the necessary area occupied by the work contemplated under the contract and his responsibility replaces that of the owner who is, during the performance of the work by the contractor, out of possession and without control over the work or the premises. Hader v. Coplay Cement Co., 410 Pa. at 151, 189 A.2d at 277.”

There are three narrow exceptions to this general rule. Our courts recognize that an owner, such as Robb H., is expected to entrust the responsibility for the work to a qualified contractor and may justifiably depend on the contractor’s expertise. Exceptions to this general rule of non-liability exists in situations where the owner has retained control of the work designated to the contractor, or, the work creates a peculiar unreasonable risk of harm or special danger to others unless precautions are taken, or, the owner negligently selected a contractor. Mentzer v. Ognibene, supra, 597 A.2d at 610; Wilk v. Haus, 460 A.2d 288, 294 (Pa. Superior Ct. 1983).

In this case, there was no evidence presented that defendant-Hawthorne or Robb H. retained control of the timing, manner of work or other supervisory function. See Restatement (Second) of Torts, §414; Beil v. Telesis Construction, Inc., 11 A.3d 456 (Pa. 2011). The plaintiffs vigorously argued throughout the litigation that the nature of the roofing working, the use of propane torches, and risk of fire is a special danger and/or peculiar risk. Although plaintiffs’ arguments are compelling, this court is not willing to conclude as a matter of law that the risk of the destructive fire was contemplated by Mr. Hawthorne at the time he entered into the contract with Mr. Wojdalski. Moreover, the negligent acts and omissions when the roofer performed his work was one of several causes of the destruction of the two buildings. See, Restatement (Second) of Torts, §§416 and 427; Edwards v. Franklin & Marshall College, 663 A.2d 187 (Pa. Superior Ct. 1995).

When defendant-Hawthome failed to exercise reasonable care to employ a competent roofer to do the work which he knew required special skill and care in the use of torches, propane tanks and safety equipment, he is liable for his failure to maintain the premises for these plaintiff-lessees. When the owner/lessor Robb H. negligently selected an incompetent roofer to perform maintenance and repairs on the roof of the leased property, those actions fell within the exception to the general rule of non-liability of owners who entrust work to independent contractors. See, Adler v. Sklaroff, 36 A.2d 231 (Pa. Superior Ct. 1944).

Robb H. and William Hawthorne contend that there is no direct evidence of how the fire started, since no one was on the roof in the early morning hours of November 2, 2008. A trier of fact is free to consider direct and circumstantial evidence in reaching a verdict. In this case, Mr. Wojdalski testified at his deposition that when he left the work site at 6:30 p.m. on November 1st, there were three gas tanks, tools and torches which he left on the roof. N.T. 177-180. This defendant stated that he knew he should have removed the gas tanks, however, he thought they were empty. N.T. 105-106, 178-181. The video surveillance films clearly showed to Mr. Hawthorne and to others that the fire was blazing at 2:30 a.m. on November 2nd. There is sufficient circumstantial evidence to conclude that the hot roofing material and rubber installation which were left unattended the prior evening smoldered and simmered and ignited the propane gas tanks and debris causing the explosion and open flames several hours later.

Comment a of the Restatement (Second) of Torts, §411, states:

“a. Meaning of ‘competent and careful contractor.’ The words ‘competent and careful contractor’ denote a contractor who possesses the knowledge, skill, experience, and available equipment which a reasonable man would realize that a contractor must have in order to do the work which he is employed to do without creating unreasonable risk of injury to others, and who also possesses the personal characteristics which are equally necessary.”

The record reveals that neither Pawel Wojdalski nor PW Custom Construction possessed the common sense, knowledge, skill, training or experience for a major roof installation of this magnitude which a reasonable owner/ lessor should have realized that a contractor must have in order to do the work they were employed to do.

Defendant-Wojdalski was unable to explain why certain procedures were in place to ensure no fires and no hot spots and no smoldering of roof materials at the end of the work day. N.T. 103-105. He failed to appreciate the risks and danger associated with empty propane tanks.

Comment c of the Restatement (Second) of Torts, §411, states:

“e. Factors determining amount of care required. The amount of care which should be exercised in selecting an independent contractor is that which a reasonable man would exercise under the circumstances, and therefore varies as the circumstances vary.
Certain factors are important: (1) the danger to which others will be exposed if the contractor’s work is not properly done; (2) the character of the work to be done — whether the work lies within the competence of the average man or is work which can be properly done only by persons possessing special skill and training; and (3) the existence of a relation between the parties which imposes upon the one a peculiar duty of protecting the other.”

The record establishes that “Bill Hawthorne” and Robb H. executed a contract for installation of a rubber roof using propane roofing torches. This type of installation required readily accessible water source. It also required that the rubber cool down to be safe. It required a period of one to two hours for workers to “watch” the site and confirm that there was no fire hazard.

Clearly, one who hires a contractor who is expected to handle flammable materials is required to exercise greater care in the selection of the worker. The Restatement Comment c provides:

“...if the work is such as will be highly dangerous unless properly done and is of a sort which requires peculiar competence and skill for its successful accomplishment, one who employs a contractor to do such work may well be required to go to considerable pains to investigate the reputation of the contractor and, if the work is peculiarly dangerous unless carefully done, to go further and ascertain the contractor’s actual competence.”

Defendant-Hawthome testified at trial that he never checked Mr. Wojdalski’s employment references. N.T. 24; that he knew roofing is a specialty trade, N.T. 25; and, Mr. Wojdalski had previously worked as a painter and done two small roof repair jobs, N.T. 22-23. Mr. Hawthorne had never inspected Mr. Wojdalski’s prior roof repair work, and, he himself had no experience in hiring roofers or performing roof repairs, N.T. 26-27. Each time defendantWojdalski was selected by defendant-Hawthome to do work was because he was the cheapest contractor. N.T. 39. Mr. Hawthorne testified that he conducted no investigations with respect to Mr. Wojdalski and his qualifications. N.T. 172-73. Mr. Hawthorne did not prepare the scope of work or select the roofing materials to supervise or provide any advice about the roofing work. N.T. 180-181. Even though this type of roof involved torches, Mr. Hawthorne was not aware of any special precautions taken by the roofer. N.T. 181.

The Restatement guidelines at Comment c also indicate that “the extent of the employer’s knowledge and experience in the field of work to be done” should also be taken into account. Defendant-Hawthome testified at trial that he knew nothing about the torch down process or hot groove application for 8100 square feet installation of the new roof. N.T. 181.

The plaintiffs-Eagle Truck and Rodop Trucking presented substantial evidence in support of their causes of action for negligence, negligent hiring, negligent supervision and respondeat superior. William Hawthorne executed the contract in his own name. Robb H. was the owner and landlord of the buildings. Defendant-Hawthome negligently selected the contractor and failed to select a competent contractor. These defendants negligently employed an incompetent and careless contractor.

C. Damages

The testimony of Mr. Hakan Rodop was credible. The court has reviewed and relied on the photographs and other exhibits when considering the devastation and damages to plaintiffs’ property. Judgment will be awarded in the amount of $115,520.00.

The testimony of Mr. Filiberto Calzadillo and his wife, Mrs. Aida Rosales was credible. The court has reviewed and relied on the photographs and other exhibits when considering the devastation and damages to plaintiffs’ property. Judgment will be awarded in the amount of $86,005.00.

III. CONCLUSION

This court concludes that the fire which occurred on November 2, 2008, was avoidable. It was the result of carelessness and negligence of Pawel Wojdalski and PW Custom Construction when those defendants installed a torch down rubber roof. The unskilled and untrained roofer improperly applied and/or used the roofing materials and the propane torch.

This court also concludes that William Hawthorne and Robb H., Inc. in complete disregard of the duly owed to the plaintiffs, failed to exercise reasonable care or investigation to employ a competent contractor. The type of work, known by those defendants to be specialty work and dangerous if not properly done, required William Hawthorne and Robb H., Inc. to go further than look at a website and pick the cheapest contractor without any effort to ascertain the contractor’s actual competence for this major project.

For all of the reasons set forth above in these Findings of Fact and Conclusions of Law, judgment will be entered in favor of all plaintiffs and against all defendants.

ORDER

And now, this 19th day of December, 2013, for the reasons set forth in the Findings of Fact and Conclusions of Law filed this date, it is hereby ordered that Judgment is entered in favor of plaintiffs Eagle Truck Services, LLC, Filiberto Calzadillo, and Aida Rosales (husband and wife), in the amount of eighty-six thousand five dollars ($86,005.00) and against all defendants Pawel Wojdalski and Robb H., Inc.


source: Caselaw Access Project

author: NEALON, J.,

license: Public Domain

text:
    Arvonio v. PNC Wealth Management

      C.P. of Lackawanna County,
    No. 11 CV 478

      George A. Reihner, for plaintiffs.

      Michael J. Donohue, for defendant.
    December 20, 2013 —
   NEALON, J.,

Defendant, PNC Wealth Management (“PNC Wealth”), has filed de novo appeals from the special discovery master’s orders dated September 10, 2013, and September 23, 2013, denying PNC Wealth’s motions for protective orders with respect to depositions that plaintiffs, Robert T. Arvonio and Robert Rossi, Individually and t/a Robert Rossi & Co. Realty (“Arvonio and Rossi”), have scheduled of officers and designated witnesses of two non-parties, PNC Bank, National Association (“PNC Bank”), and PNC Financial Services Group, Inc. (“PNC Financial”). (Docket entry nos. 23, 26). Oral argument on PNC Wealth’s discovery appeals was conducted on December 16, 2013, at the conclusion of which both appeals were submitted for a decision.

By way of relevant background, Arvonio and Rossi commenced this action against PNC Wealth and PNC Bank on January 20, 2011, and asserted causes of action for breach of contract, conversion, trespass to chattels, gross negligence, breach of fiduciary duty, and civil conspiracy. (Docket entry no. 3 at ¶¶ 50-84). Arvonio and Rossi contend that between August 1994 and July 2008, they secured a series of loans and lines of credit from PNC Bank for their real estate business. (Id. at ¶¶ 10, 14-18, 31-37). During that time period, Arvonio and Rossi also had investment accounts which were managed by PNC Wealth. {Id. at ¶¶ 11-12, 30). From June 2003 to October 2006, Arvonio and Rossi executed pledge agreements with PNC Bank, by virtue of which they pledged their investment accounts as collateral for their loan and line of credit, and agreed that those accounts could be liquidated and used to satisfy their payment obligations to PNC Bank in the event of a default. {Id. at ¶¶ 19-24).

As of October 1, 2008, the aggregate value of those pledged investment accounts totaled $3,913,027.30. {Id. at ¶ 41). Arvonio and Rossi allege that although they were not in default of their payment obligations under the loan and line of credit, PNC Wealth liquidated the securities in their investment accounts between August 6, 2008, and April 1, 2009, without advance notice to Arvonio or Rossi. {Id. at ¶¶ 38, 42-49). Arvonio and Rossi further maintain that upon learning of PNC Wealth’s liquidation of the investment account securities, they authorized PNC Wealth on April 20, 2009, “to close the accounts and pay the proceeds to PNC Bank as the secured party.” {Id. at ¶ 46). In their complaint, Arvonio and Rossi seek to recover damages representing the difference in the value of their investment accounts at the time that their securities were unilaterally liquidated in 2008-2009, and the projected, current value of those accounts if those securities had not been sold in 2008-2009. {Id. at ¶¶ 55, 58, 65, 77, 80, 84).

PNC Bank and PNC Wealth filed preliminary objections seeking to dismiss the claims for conversion, trespass to chattels, gross negligence and civil conspiracy based, inter alia, on the “gist of the action” doctrine. (Docket entry no. 6). By order dated August 29,2011, Judge Moyle sustained those preliminary objections and dismissed counts II (conversion), III (trespass to chattels), IV (gross negligence) and VI (civil conspiracy) of the complaint. (Docket entiy no. 10). F ollowing the close of the pleadings, PNC Bank and PNC Wealth filed a motion for judgment on the pleadings on March 7, 2012. (Docket entry no. 14). Relying upon the affirmative defense of accord and satisfaction, PNC Bank and PNC Wealth argued that the release agreement, which was contained in an amendment to the loan documents, that was executed by Arvonio and Rossi on January 15,2010, constitutes a complete defense in this case. (Docket entry no. 15). On July 16, 2012, visiting Senior Judge Harold A. Thomson, Jr. granted the motion for judgment on the pleadings as to PNC Bank, but denied that case dispositive motion with respect to PNC Wealth based upon the “finding that disputed issues of fact remain regarding PNC Wealth Management, specifically whether PNC Wealth Management is a separate legal entity and, therefore, not party to the accord and satisfaction.” (Docket entry no. 17 at pp. 1-2).

The parties thereafter engaged in paper discovery, and by order dated April 15,2013, the special discovery master ordered PNC Wealth to produce “all policy and procedure manuals which were in effect for PNC Wealth Management from January 1; 2006 to the present,” to “provide [Arvonio and Rossi] a verified statement identifying the current owner and any prior owner(s) of the PNC Wealth Management Service mark,” and to furnish Arvonio and Rossi with “verified statements” from Richard Masucci, Joseph Morris, Sally O’Brien, Mary Linda Donovan and Deborah Kolsovsky “setting forth the name of the PNC entity from which they received form 1099 or form W-2 income for years 2006 to 2010.” (Docket entry no. 18). Following an in camera review of documents that were submitted by PNC Wealth, the special discovery master issued supplemental orders on June 10, 2013, and June 13, 2013, directing PNC Wealth to produce certain materials relating to its alleged status as a registered trademark of PNC Bank’s parent corporation, PNC Financial, as opposed to a separate legal entity that is subject to suit. (Docket entry nos. 19-20).

Arvonio and Rossi subsequently served notices upon PNC Wealth scheduling the depositions of five officers of PNC Bank and indicating that the anticipated areas of inquiry would include “[t]he business activities of PNC Bank, National Association, which are conducted at Two PNC Plaza, Pittsburgh,” and “[a] 11 communications between and among” PNC Bank, PNC Financial Services, and PNC Wealth “regarding any business activities conducted under the name ‘PNC Wealth Management.’” (Docket entiy no. 29, exhibit A). Arvonio and Rossi served a comparable deposition notice with regard to designated witnesses of the non-party, PNC Financial. (Id. at exhibit B). Last, Arvonio and Rossi served a similar discovery deposition demand upon PNC Wealth. (Id. at exhibit C).

On September 9, 2013, PNC Wealth filed a motion for a protective order “seeking to stay the taking of the depositions of PNC officers until the court determines whether ‘PNC Wealth Management’ is a corporate subsidiary of PNC Bank, National Association.” (Docket entry no. 22 at p. 1). In support of its motion, PNC Wealth noted that it had “filed a motion for summary judgment arguing that the claims against PNC Wealth Management should be dismissed because PNC Wealth Management is not a separate legal entity subject to suit.” (Id. at ¶ 9, exhibit 2). PNC Wealth maintained that “[i]t would be unfair and inefficient to require five (5) PNC officers to be subjected to a deposition on the substantive merits of the plaintiffs’ claim when their testimony could be rendered moot if [PNC Wealth’s] motion for summary judgment is granted.” (Id. at ¶ 10). The special discovery master denied PNC Wealth’s first motion for a protective order, and PNC Wealth filed the instant discoveiy appeal on September 11, 2013. (Docket entry nos. 22-23).

On September 23, 2013, PNC Wealth also filed a motion for a protective order relative to the scheduled depositions of designated witnesses of PNC Bank and PNC Financial. Not unlike its earlier motion, PNC Wealth sought to stay those deposition pending a summary judgment determination “whether ‘PNC Wealth Management’ is a corporate subsidiary of PNC Bank, National Association.” (Docket entry no. 27 at p. 1). PNC Wealth asserted that its legal status could be ascertained by paper discovery and public filings with the United States Patent and Trademarks Office, the Securities and Exchange Commission, and other federal agencies. (Id. at ¶¶ 4-10). The special discovery master also denied that motion for a protective order on September 23, 2013, and PNC Wealth filed its second de novo appeal on that same date. (Docket entry nos. 25-26).

Under Pa.R.C.P. 4003.1, “discovery is liberally allowed with respect to any matter, not privileged, which is relevant to the cause being tried.” Berg v. Nationwide Mutual Insurance Company, Inc., 44 A.3d 1164, 1178 n. 8, (Pa. Super. 2012), app. denied, 65 A.3d 412 (Pa. 2013). Information is relevant “if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact.” Smith v. Morrison, 42 A.3d 131, 137 (Pa. Super. 2012), app. denied, 57 A.3d 71 (Pa. 2012). The relevancy standard applicable to discovery is necessarily broader than the standard used at trial for the admission of evidence. Com. v. TAP Pharmaceutical Products, Inc., 904 A.2d 986, 994 (Pa. Cmwlth. 2006); George v. Schirra, 814 A.2d 202, 205 (Pa. Super. 2002). Any doubts regarding relevancy are to be resolved in favor of discovery. Ario v. Deloitte & Touche, LLP, 934 A.2d 1290, 1293 (Pa. Cmwlth. 2007); Yadouga v. Cruciani, 66 Pa. D. & C. 4th 164, 168 (Lacka. Co. 2004).

Pursuant to Rule 4012(a), a trial court may issue a protective order “for good cause shown” in order to “protect a party or person from unreasonable annoyance, embarrassment, oppression, burden or expense.” Pa.R.C.P.4012(a). The party seeking a protective order under Rule 4012 bears the burden of establishing that the requested discovery is objectionable. Griffiths v. Ulmer, 55 Pa. D. & C.4th 370, 373 (Lacka. Co. 2002); Chrysler v. Zigray, 1 Pa. D. & C.4th 408, 410 (Lacka. Co. 1990). The moving party does not sustain that burden by demonstrating mere annoyance, burden or expense from the discovery being sought. Merrified v. Gavern, 10 Pa. D. & C.4th 541, 542 (Lacka. Co. 1991). Rather, since litigants should expect that “[a]lmost any discoveiy request causes some annoyance, embarrassment, oppression, burden or expense,” D. S. v. DePaul Institute, 32 Pa. D. & C.4th 328, 334 (Alleg. Co. 1996), “the proper inquiry is whether the party objecting to discovery has established unreasonable annoyance, embarrassment, oppression, burden or expensed associated with the discovery request.” Yadouga, 66 Pa. D. & C.4th at 169 (emphasis in original). Accord J. A. Reinhardt & Co., Inc. v. Stettz, 35 Pa. D. & C.4th 558, 562 (Monroe Co. 1996) (stating that “the puipose of protective orders is to shield parties and deponents from gross inconvenience.”).

PNC Wealth submits that officers and designated representatives of PNC Bank and PNC Financial should not be subjected to lengthy depositions addressing the expansive ambit of the claims being asserted by Arvonio and Rossi prior to a summary judgment determination whether PNC Wealth is a separate legal entity or simply a subsidiary of PNC Bank which is insulated from liability by the release agreements. PNC Wealth posits that any discovery by Arvonio and Rossi in that regard should be restricted to interrogatories and requests for production. (Docket entry no. 21 at pp. 4-8). Arvonio and Rossi argue that the scheduled depositions are “designed to ferret out information regarding issues that have been raised by [Arvonio and Rossi] in their complaint” and “to discover information relevant to the claims and defenses in this case.” (Docket entry no. 29 at pp. 7, 9).

“The trial court is responsible for overseeing discovery between the parties and therefore it is within that court’s discretion to determine the appropriate measures to insure adequate and prompt discoveiy of matters allowed by the Rules of Civil Procedure.” Rohm and Haas Company v. Lin, 992 A.2d 132, 143 (Pa. Super. 2010), cert. denied, 132 S. Ct. 852 (U.S. 2011). “The unique character of the discovery process requires that the trial court have substantial latitude to fashion protective orders.” Stenger v. Lehigh Valley Hospital Center, 382 Pa. Super. 75, 88, 554 A.2d 954, 960 (1989) (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984)). Rule 4012(a) vests the trial court with the authority to direct that either (a) the discovery “shall be only by a method of disco very...other than that selected by the party seeking discovery,” or (b) “the scope of discovery or deposition shall be limited.” Pa.R.C.P. 4012(a)(3), (5).

PNC Wealth has not demonstrated “good cause” for the issuance of a protective order limiting the method of discovery by Arvonio and Rossi to interrogatories, requests for production and publicly available government filings. See Econ Marketing Inc. v. Side II Associates, Ltd., 17 Pa. D. & C.4th 341, 346 (Monroe Co. 1992) (“It has been held that the inevitable annoyance associated with a deposition or the fact that it is time-consuming and involves some expense to the deponent does not constitute a showing of unreasonableness under Pa.R.C.P. 4012(a) such that a court could justifiably grant a motion for a protective order.”). Discovery depositions will provide Arvonio and Rossi with a more effective means of properly investigating the status of PNC Wealth in an effort to determine whether it is subject to suit or immune from liability by virtue of the release agreement. See Nardell v. Scranton-Springbrook Water Service Co., 24 Pa. D. & C.2d 663, 667 (Luz. Co. 1961) (observing that “oral interrogations are far superior to the written interrogatory” since “as the inquiry proceeds, the framing of each question is dependent upon the answers to preceding questions.”). Thus, PNC Wealth’s motion for a protective order will be denied to the extent it seeks to confine Arvonio and Rossi to paper discovery and publicly accessible filings.

A trial court may restrict the scope of a discovery deposition under Rule 4012(a)(5) to protect a party or deponent from unreasonable burden or expense. See Branham v. Rome & Haas Co., 19 A.3d 1094, 1111 (Pa. Super. 2011), app. denied, 615 Pa. 771, 42 A.3d 289 (2012). PNC Wealth has established “good cause” for limiting the parties’ initial depositions to the potentially case-dispositive issue of PNC Wealth’s status as “a separate legal entity” or a “party to the accord and satisfaction.” (Docket entry no. 17 at pp. 1-2). As we have previously noted, “[w]hile a limited degree of ‘fishing’ is to be expected with certain discovery requests, parties are not permitted ‘to fish with a net rather than with a hook or a harpoon.’” Brogan v. Rosenn, 2013 WL 3377193, at * 4 (Lacka. Co. 2013) (quoting Brownstein v. Philadelphia Transp. Co., 46 Pa. D. & C.2d 463, 464 (Phila. Co. 1969)). Before subjecting PNC Wealth to the prospect of costly and far-reaching discovery on the various claims and defenses in this matter, Arvonio and Rossi will be required to first complete discovery on the threshold issue of PNC Wealth’s legal status so that the merits of its motion for summary judgment may be addressed. If PNC Wealth’s motion for summary judgment is ultimately granted, the parties will be spared the time and expense associated with unnecessary discovery. Conversely, if that motion for summary judgment is denied, the individuals who are presently scheduled to be deposed by Arvonio and Rossi, albeit now on the narrow issue of PNC Wealth’s legal status, may be subject to additional depositions regarding the merits of the claims and defenses in this case.

And now, this 20th day of December, 2013, upon consideration of the de novo discovery appeals of defendant, PNC Wealth management, pursuant to Lacka. Co. R.C.P. 4000.1(b) of the Special Discovery Master’s orders of September 10, 2013, and September 23, 2013, the memoranda of law submitted by the parties, and the oral argument of counsel on December 16, 2013, and based upon the reasoning set forth above, it is hereby ordered and decreed that:

1. Defendant’s de novo discovery appeals are granted in part and denied in part;

2. Defendant’s de novo discovery appeals are denied to the extent that they seek the issuance of a protective order pursuant to Pa.R.C.P. 4012(a)(3) limiting plaintiffs to interrogatories, requests for production of documents and other paper discovery as the only methods of discovery; and

3. Defendant’s de novo discovery appeals are granted to the extent that the scope of the scheduled depositions will be restricted under Pa.R.C.P. 4012(a)(5) to the issue, as set forth in the order of July 16,2012, addressing defendant’s motion for judgment on the pleadings, of defendant’s status as “a separate legal entity” or a “party to the accord and satisfaction,” so that the merits of defendant’s motion for summary judgment may be addressed as a threshold determination in this case.

      . Although not averred in the complaint, Judge Margaret A. Bisignani Moyle noted in her Memorandum and Order dated August 29, 2011, addressing the preliminary objections of PNC Bank and PNC Wealth, that since PNC Bank “perceived the debt to be undersecured... its Wealth Management arm began liquidating [plaintiffs’] securities in their investment accounts and retained the cash in such accounts to collateralize the debt.” (Docket entry no. 9 at p. 2).


author: GLAZER, J.,

text:
    Food Line Management t/a Port Richmond Thriftway v. Dollar Tree Stores, Inc.
    C.P. of Philadelphia County,
    March Term, 2013
    No. 01629

      Bruce E. Rodger, Samuel Shaffer Dalke and Justin Proper, for plaintiff.

      Eric E. Reed, for defendant Dollar Tree Stores, Inc.

      Jonathan W. Hugg and Nolan Ganguli Shenai, for defendants Cedar Realty Trust and Port Richmond LLC 1.
    July 11, 2013 —
   GLAZER, J.,

The petition of defendant Dollar Tree Stores, Inc. (“Dollar Tree”) requires this court to determine whether communications exchanged by counsel on behalf of their clients constituted a settlement agreement, where Dollar Tree’s reply to the offer of plaintiff Food Line Management, Inc. (“Thriftway,”) contained conditions and terms not found in the original offer. For the reason below, the court finds that the new conditions and terms in Dollar Tree’s reply amounted to a counteroffer and a rejection of Thriftway’s offer. As a result, the petition of Dollar Tree to enforce the purported settlement agreement is denied.

Background

On April 30, 2013, Bruce Rodger, Esquire, counsel for Thriftway, sent an e-mail containing and offer to settle to Marilyn G. Kohn, Esquire, counsel for defendant Dollar Tree. The e-mail stated in pertinent part:

I have been instructed... to pursue... discussions leading to a global settlement of all claims, counterclaims, etc. asserted by ... all parties in the ... litigation....
[Thriftway] would be willing to forego further pursuit of the claims asserted in the Thriftway complaint... if Dollar Tree will agree to certain reasonable limitations upon its future business operations.... Those limitations include:
a) Dollar Tree’s agreement, for the duration of its tenancy ... (the “Relevant Time Period,”) to limit food product displays, (including but not limited to refrigerated and frozen) to the sale floor square footage described in the April 19, 2012 Declaration of Larry Mitchell....”
b) Dollar Tree’s agreement for the relevant time period not to offer for sale ... fresh produce, meats or deli products and to restrict dairy product offerings to items selling for one dollar or less.
c) Dollar Tree’s agreement for the relevant time period not to offer for sale ... any food product items (defined as edible, regardless of nutritional content) selling for more than one dollar.
d) Dollar Tree’s agreement for the relevant time period not to accept SNAP food stamps and related benefits (not including SNAP cash benefits), or WIC benefits, as payments from customers.

Defendant Dollar Tree, in its petition to enforce the settlement agreement, made the following averments:

Dollar Tree responded to Thriftway by email dated May 8, 2013 .... Dollar Tree agreed to the essence of the first three terms (although suggesting certain refinements to the proposed language). Thus, as of May 8, 2013, there remained only one essential term of the Thriftway Settlement Proposal not agreed to: whether Dollar Tree would agree to limit its acceptance of SNAP payments... .

To determine whether Dollar Tree’s reply e-mail dated May 8, 2013 constituted an acceptance of the first three essential terms of Thriftway’s offer, the court shall examine the language in the reply from Dollar tree to Thrifiway. Dollar Tree’s reply stated as follows:

a) Larry Mitchell’s declaration is somewhat ambiguous.... Therefore, to maintain the current average amount of sales devoted to food we have to add an allowance for seasonal displays.... Dollar tree will agree to limit it’s [sic] display of food products to an area no more than 1,400 square feet... plus 2.5 feet of aisle space in front of the display unit.
b) I believe we are in agreement as to item (b), but we would need to define certain terms carefully. For example, fresh meat” means uncooked, unprocessed and unfrozen meat. “Fresh deli products” means, for example, sliced-to-order or packaged-to-order products of the kind sold at staffed deli counters. We can work on the exact language....
c) Dollar tree will agree to remain a single-price store, with the price set at $1.00 or less for the near future. However, we need an allowance so that, in the event the company elects to raise the price point to allow for inflation or costs increases, it would be allowed to do so. In other words, the store will remain a single economy price point concept, but might raise that price to $1.25 (or some other amount)... We can agree if... the price point remains within 10% of equivalent of today’s $1.00....
d) Dollar tree is not inclined to cease participation in the SNAP or WIC programs.
Discussion
In Pennsylvania,
Where a settlement agreement contains all of the requisites for a valid contract, a court must enforce the terms of the agreement.”
[A]n agreement is binding if the parties come to a meeting of the minds on all essential terms....”
[A conditional acceptance] ... without the parties’ mutual agreement to the condition, cannot be the basis of a meeting of the minds or an intent to be mutually bound.
A reply to an offer which purports to accept an offer, but instead changes the terms of the offer, is not an acceptance, but, rather, is a counter-offer, which has the effect of terminating the offer.

Examination of the reply e-mail of Dollar Tree, dated May 8, 2013, shows that Dollar Tree did not agree to the essence of any of the terms contained in Thriftway’s offer dated April 30, 2013. Indeed Dollar Tree, rather than merely suggesting certain “refinements” to the proposed language from Thriftway, proposed altogether new terms and conditions found in the original offer from Thriftway.

As to item a) in Thriftway’s offer, Dollar Tree counter-offered by suggesting that it be allowed to dedicate to the sale of food products no less than 1,400 square feet of floor space, plus 2.5 feet of aisle space, even though Thriftway’s proposal, which referenced the Declaration of Larry Mitchell, offered a maximum floor space dedicated to the sale of food products to no more than 12.42% (approximately 946 square feet) of Dollar Tree’s selling floor space.

As to item b), Dollar Tree’s counsel stated the following in its reply: “I believe we are in agreement as to item (b) but we would need to define certain terms carefully.” This language clearly and unequivocally shows that there was no meeting of the minds as to the essential terms contained in Thriftway’s offer at item b).

As to item c), Dollar Tree replied that it agreed to sell food items in its store for no more than $ 1.00, yet it quickly requested an “allowance” that would enable Dollar Tree to sell food items for up to $1.25 per item as an adjustment for inflation and cost increases. The discrepancy between Thriftway’s offer and Dollar Tree’s reply shows that there was no meeting of the minds as to an essential term contained in item c).

As to item d), Dollar Tree clearly and unequivocally rejected Thriftway’s proposal by refusing unconditionally to cease participation in the SNAP or WIC programs.

The reply of Dollar Tree did not accept Thriftway’s offer in any way whatsoever; rather, it provided a counteroffer which rejected and terminated Thriftway’s offer. Since there was no meeting of the minds and no settlement agreement, the petition of Dollar Tree is denied.

ORDER

And now, this 10th day of July, 2013, upon consideration of the petition of defendant Dollar Tree Stores, Inc. to enforce settlement, the responses in opposition of plaintiff Food Line Management, Inc. and defendant Port Richmond LLC1. and the respective memoranda of law, it is ordered that the petition is denied.

      . See Declaration of Larry Mitchell, Director of Visual Merchandising of Dollar Tree, Inc., dated April 19, 2012, ¶¶ 6-7, ,attached to the Declaration of Attorney Nancy C. DeMis in opposition to Dollar Tree’s petition to enforce settlement agreement. In his Declaration, Larry Mitchell stated that the total area of the Dollar Tree store was approximately 9,464 square feet, and the total selling floor was 7,614 square feet. Larry Mitchell also stated in his declaration that “[a]proximately 12.42% of the total selling floor ... is dedicated to the sale of food products.” Since 12.42% of 7,614 square feet equals approximately 946 square feet, this figure represents approximately the essential term contained in Thriftway’s e-mail offer, item a), dated April 30,2012.

      . E-mail dated April 30, 2013, from Bruce Rodger, Esquire, to Marilyn G. Kohn, Esquire, exhibit C to Dollar Tree’s petition to enforce settlement agreement.

      . Dollar Tree’s petition to enforce settlement agreement, ¶ 10 (emphasis supplied).

      .101; 976 A.2d 510, 518 (Pa. Super. 2009).

      . Commerce Bank/Pennsylvania v. First Union Nat. Bank, 2006 Pa. Super. 305; 911 A.2d 133, 147 (Pa. Super. 2006).

      . Espenshade v. Espenshade, 729 A.2d 1239, 1247 (Pa. Super. 1999).

      . Id.

      . In the response in opposition to Dollar Tree’s petition, defendant (“Port Richmond”,) asserts in its new matter that “Dollar Tree and Thrift-way have impermissibly included in and attached to their petition and response, respectively, confidential settlement negotiations and offers to compromise between Dollar Tree, Thriftway and/or Port Richmond, which is prohibited by Pa. R.E. 408(a). The proposed order attached to Port Richmond’s response asks the court to strike without prejudice Dollar Tree’s petition and the response of Thriftway.
      Rule 408(a) of the Pennsylvania Rules of Evidence states: “Evidence of the following is not admissible on behalf of any party, when offered to prove liability for ... a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction: (1) furnishing of offering or promising to furnish — or accepting or offering or promising to accept — a valuable consideration in compromising or attempting to compromise the claim.... (Emphasis supplied).
      In this case, any evidence of settlement negotiations involving Port Richmond was not offered to prove liability of any party or to impeach a prior inconsistent statement, but was merely offered in an attempt to enforce a purported settlement agreement between Dollar Tree and Thrift-way. For this reason, the court shall not issue an order striking Dollar Tree’s petition to enforce settlement agreement or Ihriftway’s response in opposition thereof.


author: CEISLER, J.,

text:
    EMC Mortgage LLC v. Biddle

      C.P. of Philadelphia County,
    September Term, 2011
    No. 03840; 2894 EDA 2013

      Irwin Lee Trauss, for appellant.

      Adam Hart Davis and Steven J. Adams, for appellee.
    November 5, 2013—
   CEISLER, J.,

I. FACTS AND PROCEDURAL HISTORY

Defendant/Appellant Robert Biddle (hereinafter “appellant”) appeals this court’s August 6, 2013 order, which granted a motion to reassess damages in favor of plaintiff/appellee EMC Mortgage (hereinafter “appellee”). The instant matter was initiated by appellee on September 30, 2011, when it filed a mortgage foreclosure complaint against appellant. After more than a year of conciliation efforts, appellee entered a default judgment via praecipe on February 19, 2013.

Appellee filed a motion to reassess damages (hereinafter “appellee’s motion”) on June 6, 2013, stating that additional costs and interest had accrued since the entry of judgment, and asking this court to modify the damages amount accordingly. Appellant filed an answer on June 26, 2013, arguing that the mortgage foreclosure judgment was final when entered, and thus, damages were fixed at that point intime. See appellant’s brief, at 13. Upon consideration of the appellee’s motion and the appellant’s response thereto, the court granted the motion to reassess damages through an order dated August 6, 2013, and docketed on August 7, 2013, thereby allowing the amendment of appellee’s writ of execution to reflect an updated, total damages amount of $78,115.15. Appellant appealed this court’s decision to the Superior Court on September 25, 2013. Pursuant to this court’s Pa. R.A.P. 1925(b) order, appellant submitted a statement of errors alleging that this court: 1) Granted a motion to reassess damages “without authority”, 2) erred in “failing to dismiss the motion as unverified,” 3) erred in resolving the motion “without a trial at least as to damages” where facts were disputed and damages were not determined by the original complaint, and 4) erred in assessing damages by reference to the mortgage after judgment. See appellant’s 1925(b) statement, 1-7.

II. DISCUSSION

This court respectfully requests that the instant appeal be denied for the following reasons:

1. This appeal is interlocutory and addresses a matter that is not appealable by right under the Pennsylvania Rules of Civil Procedure. Thus, the instant appeal is procedurally improper.
2. Even if the instant appeal were deemed permissible, it is without merit because it is well-established that, prior to satisfaction, a party has the right to amend the amount of damages in a mortgage foreclosure action.

In general, litigants may only appeal orders which are final in nature. Pa. R.A.P. 341 Final orders include those that dispose of all claims and all parties, are expressly defined as final, or are entered as final by the trial court. Pa. R.A.P. 341(b)-(c). Appeals from interlocutory orders are ordinarily not allowed, with limited exceptions that are appealable as of right. See Pa. R.A.P. 311 (interlocutory appeals are allowed regarding orders affecting judgments, attachments, changes of venue, injunctions, new trials, partition, or other cases made appealable by statute or rule). Additionally, a party may file an appeal where: 1) the at-issue order is separable from the main cause of action, 2) the right at stake is too important to be denied review, and 3) the claim will be irreparably lost if review is postponed until final judgment. See Pa. R.A.P. 313(a)-(b) (discussing appeals of collateral orders). Pennsylvania courts narrowly construe the collateral orders doctrine and require that “every one of its three prongs be clearly present before collateral appellate review is allowed.” Rae v. Pennsylvania Funeral Directors Ass’n, 977 A.2d 1121, 1126 (Pa. 2009).

Here, this court’s August 6, 2013 order was interlocutory, as it did not extinguish all claims or end litigation. As a matter of well-settled Pennsylvania law, a court controls the enforcement of judgment and may grant any relief until judgment is satisfied. Stephenson v. Butts, 142 A.2d 319, 321 (Pa. Super. Ct. 1958). This order was not final in nature, as it was issued prior to satisfaction of the judgment. See Farmers First Bank v. Wagner, 687 A.2d 390, 392, n. 3 (Pa. Super. Ct. 1997) (satisfaction is the endpoint of a mortgage foreclosure action). While, in rare circumstances, an order disposing of a motion to reassess damages may be deemed final in nature, this is the exception to the rule. Morgan Guar. Trust Co. of New York v. Mowl, 705 A.2d 923 (Pa. Super. Ct. 1998) Here, the property has yet to be sold at sheriff’s sale and the judgment has yet to be satisfied. The instant order, therefore, is but one piece of an ongoing case. It did not resolve the underlying suit, nor did its issuance preclude the appellant from gaining any subsequent relief at the trial level.

Additionally, the at-issue order is not collateral in nature, in that the nature of appellant’s argument does not necessitate immediate appellate review. If Appellant disputes the amount of damages, he may continue to contest it until satisfaction. See B. C. Y, Inc., Equip. Leasing Associates v. Bukovich, 390 A.2d 276, 278 (Pa. Super. Ct. 1978) (explaining that courts may correct a default judgment to conform to the facts). Furthermore, appellant can still attempt to stay any future sheriff’s sale of the property and, if that fails, may seek to set aside said sale. Farmers, 687 A.2d at 392; id. at 392 n. 3. (citing First Eastern Bank v. Campstead, 637 A.2d 1364 (1994). Thus, the at-issue order at issue is neither final, nor appealable as of right, nor collateral. The instant appeal is, therefore, procedurally improper and should be quashed.

Assuming, arguendo, that the instant appeal was permissible, it still remains that appellant’s allegations regarding this court’s putative errors are entirely without merit. This court will address each of these allegations in sequence:

A. Appellee May Seek Reassessment of Damages By The Court

Appellant is mistaken in his repeated assertions that this court granted the motion “without authority,” and that the appellee provided “no authority for the procedure which the court followed.” Appellant’s 1925(b) statement at 1, 5-6. As a matter of well-settled law, Pennsylvania courts enjoy the “inherent power to correct a judgment of default to conform to the facts. B. C. Y., Inc., Equip. Leasing Associates v. Bukovich, 390 A.2d 276, 278 (Pa. Super. Ct. 1978) (citing Wilson Laundry Co. v. Joos, 189 A.2d 917 (Pa. Super. Ct. 1963); Harr v. Furman, 29 A.2d 527 (Pa. 1943); Brummer v. Linker, 196 A. 834 (Pa. 1938)). Moreover, the right to seek amendment of damages prior to satisfaction of judgment has been repeatedly affirmed by the Superior Court. In Nationsbanc Mortgage Corp. v. Grillo, the Superior Court unambiguously explained that a mortgagee “had every right to petition the court to amend the writ of execution to include additional interests and costs prior to appellant’s good faith tender.” 827 A.2d 489, 493 (Pa. Super. Ct. 2003). See also Morgan, 705 A.2d at 928 (“[Mortgagee] should have sought approval of the court to amend its judgment prior to the sheriff’s sale.”); Union Nat. Bank of Pittsburgh v. Ciongoli, 595 A.2d 179, 182 (Pa. Super. Ct. 1991) (explaining that a party who seeks to reassess damages should petition the court prior to satisfaction). This court, therefore, was well within its authority to grant a motion to reassess damages prior to satisfaction of a judgment in mortgage foreclosure.

B. A Motion Does Not Require Verification

Appellant is also mistaken in his assertion that appellee needed to verify its motion to reassess damages. Pa. R.C.P. 206.3, the rule cite by appellant in support of his argument, provides that “[a] petition or an answer containing an allegation of fact which does not appear of record shall be verified.” Id.', see appellant’s 1925(b) statement, at 2. However, a motion to reassess damages is neither a petition nor an answer, but rather a motion governed by Pa. R.C.P. 208. See also In re Jacobs, 936 A.2d 1156, 1164 (Pa. Super. Ct. 2007) (describing Rule 208.1-4 as “the rules of civil procedure pertaining to motions practice”).

This rule expressly provides that “[a] motion need not be verified unless verification is required by general rule governing the particular motion or by order of the court.” Pa. R.C.P. 208.2(5)(b). As no such rule exists with respect to motions to reassess damages, and as this court did not require appellee to verify its motion to reassess damages, said motion did not need to be verified.

C. There Was No Material Factual Dispute Before This Court, And A Trial Was Not Required.

Appellant erroneously asserts that this case presented a factual dispute requiring resolution via a hearing or trial. See appellant’s 1925(b) statement at 3; Id. at 3. The motion and answer, however, presented no disputed fact and this court deemed it unnecessary to allow for further development of the record. Appellant cites case law interpreting Pa. R.C.P. 209 to argue that a factual dispute arising in a motion must be resolved by a hearing or some other method of developing the record. While Pa. R.C.P. 209 did, at one point, define a court’s options for resolving factual disputes arising from petitions, it was stricken from the Pennsylvania Rules of Civil Procedure seventeen years ago. Id.; see Ungate v. Passalacqua, 613 A.2d 6, 9 (Pa. Super. Ct. 1992). Currently, Rule 208.4 governs the handling of factual disputes during the consideration of motions. See Pa. R.C.P 208.4(b)(1). Under this Rule, a court may provide some mechanism for developing the record where “a party seeks relief based on disputed facts for which a record must be developed,” but it has broad discretion over whether to convene a hearing or employ some other method. Id.

While there is little appellate guidance regarding the application of Pa. R.C.P 208.4(b)(1), it is clear that a trial court has the ability to rule upon a motion without allowing for further development of a factual record. Florig v. Estate of O’Hara, 912 A.2d 318, 322 n.5 (Pa. Super. Ct. 2006). “It is the court’s duty to draw conclusions of law from facts stated by a pleader or petitioner.” Cross v. 50th Ward Cmty. Ambulance Co., 528 A.2d 1369, 1372 n. 8 (Pa. Super. Ct. 1987) (citing Standard Pennsylvania Practice 2d §16:27 (1982)); however, a party’s responsive averments, should they consist of mere legal conclusions, “do[] not give rise to a disputed issue of fact.” Id. Therefore, a denial consisting solely of such conclusions fails to create a dispute requiring further development of the record.

Appellant’s denials in the instant matter amount to conclusions of law that fail to raise any true factual dispute. Here, the only factual issue under consideration was whether additional expenses had accrued after the entry of default judgment, but prior to satisfaction of that judgment. Appellee submitted the original mortgage, the note, a calculation of additional interest consistent with the rate agreed in the mortgage, an accounting of legal fees identifying the dates specific services were provided, and a similarly itemized and dated breakdown of the cost of suit and title. Appellee’s motion, at 1-4. Despite appellant’s claim that he “expressly denied all the factual allegations in the plaintiffs motion,” he offered only erroneous legal conclusions in response to appellee’s factual allegations, rather than substantive challenges to the revised damages figures. Appellant’s 1925(b) statement at 3; appellant’s answer at 2.

For example appellant’s answer to the motion denied that any sums were expended on his behalf and explains by setting forth the erroneous legal conclusion that damages may not be reassessed without a trial. Appellant’s answer at 2-5. Similarly, appellant’s denial regarding legal fees baldly states, “It is expressly denied that plaintiff has paid anything in legal fees.” Id. at 5-6. Appellant provides no basis for this denial, despite the fact that the mortgage entitles appellee to recoup the costs of pursuing a judicial remedy upon default. See Appellee’s motion, Ex. D; appellant’s answer at 6. (“And it further denied [sic.] that there is any authority under which plaintiff would be entitled to collect such fees from defendant or from the sale of his home.”). Simply put, this court declined to allow appellant to manufacture a factual dispute by disguising erroneous conclusions of law as factual denials.

Appellant further argues that a trial should have been conducted as to the issue of damages, alleging that the amount assessed “could not be determined from the verified complaint to be a sum certain.” Appellant cites Pa. R.C.P. 1037(b)(1), which addresses how the prothonotaiy may calculate damages upon entry of a default judgment, and requires a trial on the issue of damages when there is no sum certain, or when a sum certain cannot be calculated from the complaint. Id. On this point appellant simply cites an inapplicable rule. The default judgment was originally entered with damages assessed at $60,264.10 (as set forth in the appellee’s complaint). Appellee’s motion, Ex. A. The validity of that judgment, and the amount of damages initially assessed as a result, was not at issue here; therefore, this court had no reason to convene such a trial. In short, as appellant failed to create any genuine factual disputes, this court deemed it unnecessary to convene a hearing or allow for further development of the record.

D. The Parties To The Mortgage Intended Appellant’s Obligation To Survive Until Satisfaction Of The Judgment

Finally, appellant argues that appellee’s motion to reassess damages ignored the existing judgment by using the mortgage as a basis from which to calculate new damages. Appellant’s answer at 5, 12. Appellant relies principally on In re Stendardo, for the proposition that a judgment extinguishes the obligation of a mortgage under the merger of judgments doctrine. 991 F.2d 1089, 1095 (3d Cir. 1993). The Stendardo Court explained that, unless a mortgage agreement evinces the intent to have a given contractual provision survive judgment, said judgment becomes the sole basis for ascertaining damages. Stendardo, 991 F.2d at 1095. Stendardo provided the following as an example of contractual language that would allow for the post-judgment recoupment of interest, costs of suit, and attorney’s fees:

In case [of] default...foreclosure proceedings may be brought...on this mortgage and prosecuted to judgment, execution and sale for the collection of the same, together with costs of suit and an attorney’s commission for collection of the total indebtedness.

Stendardo, 991 F.2d at 1096 (citing In re Clark Grind & Polish, Inc., 137 B.R. 172, 174 (Bankr. W.D. Pa. 1992). Here, paragraph 18 of appellant’s mortgage contains a substantially similar provision:

18. Foreclosure Procedure. If lender requires immediate payment in full under paragraph 9 [acceleration clause], lender may foreclose this security instrument by judicial proceeding. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this paragraph 18, including, but not limited to, attorney’s fees and cost of title evidence.

Appellee’s motion, Ex. D. Under this language, appellee is able to recoup costs, fees, and other expenses stemming from appellant’s default and the resulting foreclosure action. Moreover, ¶23 of the mortgage provides that the interest rate after judgment shall be at the rate entered on the note. Appellee’s motion, Ex. D. This instrument, therefore, demonstrates that appellant had the requisite authority to obtain the post-judgment, pre-satisfaction reassessment of damages.

In short, this appeal is not only procedurally improper, but, moreover, is entirely without a shred of substantive merit.

III. CONCLUSION

For the aforementioned reasons, this court respectfully requests that the instant appeal be quashed.

DETAILED AND ITEMIZED STATEMENT OF ERRORS COMPLAINED OF ON APPEAL

Defendant Robert D. Biddle, by his attorney, files the following “detailed and itemized statement of errors complained of on appeal” in accordance with the order of the court dated September 26, 2013, and entered on the docket within the meaning of Pa. R. App. P. 108(b) and Pa. R. Civ. P. 236(b), on September 30, 2013.

1. The court, without a hearing; without evidence and without authority, granted plaintiff’s unverified motion to increase its judgment in mortgage foreclosure by about $18,000.00, or by about 30% of the original judgment. The court entered its order over the verified response of defendant in which he denied all the factual allegations contained in the motion and further asserted that the court lacked authority to do what plaintiff requested in the motion. In entering the order from which Mr. Biddle has appealed, the court committed the errors set forth below:

2. Despite defendant’s express request that it do so, the court erred by failing to dismiss the motion because it was unverified. Pa. R. C.P. 206.3 requires every petition and answer containing an allegation of fact not of record to be verified. Because the motion was unverified, the factual allegations in the motion, none of which were of record, had to be treated as a nullity — incapable of supporting the relief plaintiff requested in the motion and incapable of supporting any relief. Warren v Williams, 370 Pa. at 382 (Pa. 1952) (allegation in petition given no effect when petition improperly verified by counsel); Hutchinson v. Woodwell, 107 Pa. 509, 518-519 (1885) (a complaint not verified by a party does not need to be answered and cannot support a judgment). See Rupel v Bluestein, 280 Pa. Super. 65, 75-77, 421 A. 2d 406, 411-412 (Pa. Super. 1980) (improperly verified complaint could not support an injunction); Signora v Kaplan, 33 Pa. D. & C. 4th 219, 222-224 (CCP Del Cty 1996) (court struck off petition to open and treated petition and attached answer as nullities because of absence of verification by a party), aff’d Signora v Liberty Travel, 718 A. 2d 355 (Pa. Super. 1998); Santilli v. Church, 33 D. & C. 2d 309(C.C.P. Chester Cty. 1964) (default judgment struck off where verification to complaint though signed by the plaintiff lacked notary’s seal); Avco v. Witherite, 12 Centre Co. 99 (1975) (same conclusion under similar facts); Cf. Houck Et Ux. v. Carnavail, et al, 80 Montgomery 83 (1962) (failure to verify a pleading resulted in the pleading being stricken); Temont Township School District v. Western Anthracite Coal Co. 75 D. & C. 225 (1950); Philadelphia School of Beauty Culture v Haas, 78 D.C. 97, 104 (C.P. Dauphin, 1949); H.I.S. Sportswear v. Cohen, 62 D. & C. 2d 559 (C.P. Del. 1973) (unexplained verification by officer of a related corporation not sufficient); Goodrich AnRam §1024(c)-1.

3. Defendant expressly denied all the factual allegations in plaintiff’s motion with a verified response. In such a case, if the motion is treated as a motion and not as a petition, the allegations in the plaintiff’s motion cannot be accepted as true and the court is required to issue an order providing for a mechanism to be used to resolve the factual disputes and to develop a record. Pa. R. C. P. 208.4 (b) (1)and 2 and Pa. R. C. P. 206.7. Defendant in his response to the motion expressly stated that a judgment could not be increased, in the face of disputed facts, without evidence and without a trial at least as to damages. If the court did not err by not dismissing the motion outright, because it was not verified, the court erred in the instant case by deciding the motion without developing a record that would support the court’s resolution of the motion, in the face of the disputed issues of fact raised by defendant’s verified answer. Ungate v. Passalacqua, 418 Pa. Super. 12, 19 (Pa. Super. 1992) (Trial court had no basis for preferring one parties version of the facts to the other party’s in absence of a record. Trial court acted prematurely.)

4. Plaintiff’s initial complaint, upon which it obtained a default judgment, was verified. See Pa. R. C. P. 1024. Pa. R. C.P. 1037(b) (1) permits the prothonotary to assess damages, on a default judgment, “for the amount which the plaintiff is entitled if a sum certain [from the face of the verified complaint] or which can be made certain by computation, but if it is not, the damages shall be assessed at a trail at which the issues shall be limited to the amount of damages” (emphasis added). In the instant matter the court erred by determining the damages, without a trial, in an amount that could not be determined from the verified complaint to be a sum certain and that could not be made a sum certain by calculation based on the allegations in the verified complaint.

5. Once a default judgment is entered the underlying mortgage merges with the judgment and is extinguished. 25 P.L.E. §243., n. 23; In re Stendardo, 991 F.2d 1089, 1095 (3rd Cir. 1993); Lance v. Mann, 60 A2d. 35, 36 (Pa. 1948); In Re Coleman, 82 Bankr. 15, 17 (Bankr. D.N.J. 1988); In Re McKillips, 81 Bankr. 454 (Bankr. N.D. III. 1987); See also In Re Herbert, 86 Bankr. 433, 436-437 (Bankr. E.D. Pa. 1988); In Re Smith, 92 Bankr. 127, 129-131 (Bankr. E. D. Pa. 1988). Unless it is vacated or opened, the judgment, and not the mortgage, determines defendant’s obligation to plaintiff. In Re Stendardo, 991 F.2d at 1095-1096, 1102.; See, 25 P.L.E. ¶244; Ball v. Rolling Hill Hospital, 518 A.2d 1238, 1246 (Pa. Super. 1986) (post judgment interest established by statute). Defendant has no liability, post judgment, to plaintiff for obligations under the mortgage, which are not part of the judgment and which do not survive the judgment. Id. In the instant case after the judgment, plaintiff is entitled to receive from the sale of defendant’s property, only the judgment, plus interest on the judgment at the legal rate or at some other amount if provided in the judgment, less payments made on account of the judgment, plus record court costs which may be added administratively in accordance with Pa. R. C. P. 3256, 3257, 3180, 3181(a) (1) and (11) 3138 and 3103 to the judgment. The court erred in the instant case, as a matter of law, by ignoring the judgment that was entered in the instant case on September 19, 2012. The court erred by awarding plaintiff additional attorneys fees, inspection fees, reimbursement for taxes, insurance payments and other assessments and charges, which plaintiff’s attorney alleges in the unverified motion plaintiff paid, when plaintiff has no right under its September 19, 2012 to any of these amounts. In re Stendardo, 991 F.2d 1089, 1095 (3rd Cir. 1993); Lance v. Mann, 60 A2d. 35, 36 (Pa. 1948).

6. Plaintiff provided no authority for the procedure which the court to followed. Plaintiff pointed the court to no appellate court case and no rule that allows a plaintiff to replace a judgment it feels is too small with one that is bigger, while retaining the benefit of the judgment, simply because plaintiff would like the judgment to be bigger because it thinks it is owed more money. This is particularly the case where the plaintiff can point to no irregularity in the process that resulted in the original judgment. The court erred in the instant case, as a matter of substantive law, by entering an order which effectively vacated the earlier judgment and replaced it with a new one without any authority for its doing so. While there are cases giving the court broad discretion in controlling the enforcement of its judgment, the is no authority giving it broad discretion to alter the amount of the judgment, absent a reason to provide a party with a new trial in accordance with Pa. R. C.P. 227.1. To the extent the court relied upon its discretion regarding the enforcement of judgments to increase the judgment, the court erred in the instant case by abusing that discretion.

      . Appellant’s statement of errors contains six numbered paragraphs; however, paragraphs 1 and 6 function as an introduction and conclusion respectively. This court therefore, discerns only the four assertions of error listed here. The entire statement is attached to this opinion as “appendix A.”

      . Additionally, a motion to reassess damages does not fall within any of the exceptions to the general rule against interlocutory appeals. Pa. R.A.P. 311. Pa. R.A.P. 311 (a)(1) allows for interlocutory appeals of orders affecting judgments, but only applies to “[a]n order refusing to open, vacate or strike off a judgment.” The instant order produces none of these three outcomes. Pa. R.A.P. 311 (a)(2) allows interlocutory appeals concerning attachments where an order affects “possession or control of property”; however, the order to reassess damages merely recalculates the amount of money necessaiy to satisfy the judgment, and does not address possession or control.

      . While Pa. R.C.P. 206.1 gives individual counties the ability to designate, via local rule, additional filing types as falling under the rules governing petitions, Philadelphia County has not chosen to take this step regarding motions to reassess damages. See Phila. Civ. R. *206.1(a).

      . This court notes that rule 209 was made applicable to motions as well as petitions by local rule in Philadelphia County. Cross v. 50th Ward Cmtv. Ambulance Co., 528 A.2d 1369, 1372 n. 6 (Pa. Super. Ct. 1987).

      . It must be noted that the Cross court was interpreting the now rescinded and more stringent Rule 209; however, this court found its discussion of factual disputes versus legal conclusions to be persuasive and applicable to the instant matter.

      . Stendardo was decided by the third circuit court of appeals, and involved the interpretation of Pennsylvania law on the merger of judgments doctrine. 991 F.2d at 1094. As such it constitutes persuasive authority, rather that binding precedent. See Com. v. Giffin, 595 A.2d 101, 107 (Pa. Super. Ct. 1991) (“Pennsylvania courts are not bound by the decisions of inferior federal courts where the case specifically concerns Pennsylvania law.”). Nevertheless, Stendardo itself provides the exception to the merger of judgments doctrine that disposes of this issue. Stendardo, 991 F.2d at 1095.


author: HODGE, J.,

text:
    Commonwealth v. McDade

      C.P. of Lawrence County,
    No. 803 of 2013, CR.

      Diane Shaffer, for Commonwealth.

      Lawrence Keith, for defendant.
    December 31, 2013 —
   HODGE, J.,

Before the court for disposition is the petition for writ of habeas corpus (hereinafter, the “petition”) filed on behalf of the defendant, Andre DeAngelo (hereinafter, the “defendant”). A hearing on this matter was scheduled on October 31,2013, at which time the Commonwealth submitted the notes of testimony from the preliminary hearing held in the instant case. The Commonwealth and the defendant were further directed to file memoranda of law in support of their respective positions.

The charges in this case arise from events occurring on June 26, 2013. On that date, the defendant was driving along Grant Street, New Castle, Pennsylvania. Officer David Maiella and Officer James Hoyland of the New Castle Police Department initiated a traffic stop on Grant Street for a violation of the Pennsylvania Motor Vehicle Code. Officer Maiella approached the vehicle and requested the driver to produce a license and proof of registration for the vehicle. Officer Maiella contacted the Lawrence Emergency Operations Center, L.E.O.C., with the defendant’s information, wherefrom, Officer Maiella discovered that the defendant had an outstanding warrant for his arrest from the State of Michigan. Officer Maiella questioned the defendant about the outstanding warrant, and the defendant acknowledged that he had an outstanding warrant, and submitted himself for arrest. Thereafter, Office Maiella searched the defendant’s person pursuant to an arrest and placed the defendant inside unit 14, which was being operated by Officer Hallowich. Officer Hallowich transported the defendant to the New Castle Police Station, where the defendant was strip searched and placed in a holding cell. Following the defendant’s arrest, Officer Maiella was contacted by the issuing authorities in Michigan, who informed Officer Maiella that the authorities in Michigan would not be extraditing the defendant. Officer Maiella provided the defendant with a traffic citation and released the defendant from custody.

Subsequently, Officer Hallowich was called to assist in transporting a different individual from Neshannock Township to the New Castle Police Station. Prior to putting this person in his vehicle, Officer Hallowich searched the back seat of his police cruiser. Officer Hallowich found a small baggie containing heroin on the driver’s rear floor area. Officer Hallowich contacted Officer Maiella to inform him of the heroin because Officer Hallowich assumed that it had to have come from the defendant.

Based upon the foregoing, the defendant was charged with one count of Manufacture, Delivery, or Possession With Intent to Manufacture or Deliver a Controlled Substance, one count ofPossessionofDrug Paraphernalia, and one count Intentional Possession of a Controlled Substance by a Person Not Registered. Following a preliminary hearing on July 11, 2013, the aforementioned charges were bound over for court. On August 29, 2013 the defendant filed the instant petition, wherein the defendant argues that the Commonwealth failed to present sufficient evidence to establish a prima facie case for the aforementioned charges. A hearing was scheduled before this court on October 31, 2013. At the hearing, the parties agreed to stipulate to the facts contained in the transcript from the preliminary hearing and to submit memoranda of law in support of their respective positions. Neither side presented additional evidence at the October 31, 2013 hearing. Thus, the matter is properly before the court for disposition.

Where a criminal defendant seeks to challenge the sufficiency of the evidence presented at his preliminary hearing, he may do so by filing a writ of habeas corpus. Commonwealth v. McBride, 595 A.2d 589 (Pa. 1995); Commonwealth v. Carmody, 799 A.2d 143 (Pa. Super. 2002). The purpose of a preliminary hearing is to avoid the incarceration or trial of a defendant unless there is sufficient evidence to establish a crime was committed and the probability the defendant could be connected with the crime. Commonwealth v. Fox, 422 619 A.2d 327, 332 (Pa. Super. 1993), appeal denied, 535 Pa. 659, 634 A.2d 222 (1993) (quoting Commonwealth v. Tyler, 587 A.2d 326, 328 (Pa. Super. 1991), appeal denied, 617 A.2d 1263 (Pa. 1992)).

In evaluating an accused’s entitlement to pre-trial habeas corpus relief, a trial court must determine when there is sufficient evidence to make out a prima facie case that the defendant committed the crime with which he is charged. Commonwealth v. Hock, 728 A.2d 943 (Pa. 1993). In a habeas corpus proceeding, the Commonwealth has the burden of establishing a prima facie case, offering some proof to establish each material element of the offense as charged. Commonwealth v. Owen, 580 A.2d 412 (Pa. Super. 1990). This does not mean that the prosecution must prove the accused guilty beyond a reasonable doubt; rather, the prosecution must establish “sufficient probable cause” that the accused has committed the offense. Commonwealth v. Prosdocimo, 479 A.2d 1073 (Pa. Super. 1994).

This is not the junction of the proceeding to make credibility and weight determinations. Commonwealth v. Williams, 911 A.2d 548, 551 (Pa. Super. 2006). The court must “view the evidence in the light most favorable to the Commonwealth” and “consider the reasonable inferences based on that evidence which could support a guilty verdict.” Williams, supra. Although a habeas corpus hearing is similar to a preliminary hearing, in a habeas corpus proceeding the Commonwealth has the opportunity to present additional evidence to establish that the defendant has committed the elements of the offense charged. Commonwealth v. Karlson, 674 A.2d 249 (Pa. Super. 1996).

As previously stated, the defendant is charged with the crimes of Manufacture, Delivery, or Possession With Intent to Manufacture or Deliver a Controlled Substance in violation 35 P.S. §780-113 (a) (30); Intentional possession of a controlled substance by a person not registered in violation of 35 P.S. §780-113(a) (16); and Possession of Drug Paraphernalia in violation of 35 P.S. §780-113 (a) (32).

Section 35 P.S. §780-113 of the controlled substance, drug, device and cosmetic act provides the following:

(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:
(16) Knowingly or intentionally possessing a controlled or counterfeit substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, unless the substance was obtained directly from, or pursuant to, a valid prescription order or order of a practitioner, or except as otherwise authorized by this act.
(30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.
(32) The use of, or possession with intent to use, drug paraphernalia for the purpose of planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packing, repacking, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of this act.

The Commonwealth maintains the burden of establishing that the defendant knowingly or intentionally possessed a controlled substance, and if the substance was not discovered on the defendant’s person, then the Commonwealth must demonstrate that the defendant was in “constructive possession” of the contraband. Commonwealth v. Valette, 613 A.2d 548, 549-550 (Pa. 1992). It is apparent that the duration of possession is immaterial. Commonwealth v. Yaple, 273 A.2d 346, 350 (Pa. Super. 1970) (citing Peachie v. State, 203 Md. 239, 100 A.2d 1 (1953); Sutton v. State, 170 Tex. Cr. R. 617, 343 S.W.2d 452 (1961)). Circumstantial evidence may be utilized to establish that the defendant was in possession of the drugs or contraband. Commonwealth v. Macolino, 469 A.2d 132, 134 (Pa. 1983) (citations omitted).

“When possession of contrabandis charged, the evidence must show not only that an accusedhad conscious dominion over the object; that is, the accused must have not only the power to exercise control, but also have intent to exercise that power of control.” Commonwealth v. Sterling, 361 A.2d 799, 801 (Pa. Super. 1976) (citations omitted). If the accused is not in actual possession of the contraband, the Commonwealth must establish constructive possession. Constructive possession is defined as the power to control the contraband and the intent to exercise that control. Commonwealth v. Haskins, 677 A.2d 328, 330 (Pa. Super. 1996) (citing Commonwealth v. Valette, 613 A.2d 548 (Pa. 1992)). Notwithstanding the fact that another may also have control and access to the contraband, the defendant may have constructive possession of the contraband may be shown as long as the accused had joint control or access. Id. (citing Commonwealth v. Mudrick, 507 A.2d 1212 (Pa. 1986)). “The fact that the contraband is located in an area usually accessible only to the defendant may lead to an inference that he placed it there or knew of its presence.” Id.

In order to prove that a defendant delivered a controlled substance, the Commonwealth must demonstrate that the accused sold the controlled substance to a police officer or another person. Commonwealth v. Murphy, 795 A.2d 1025, 1030-1031 (Pa. Super. 2002). More simplistically, this statute requires that the defendant merely transfer the controlled substance to another person. Commonwealth v. Metzger, 372 A.2d 20, 22 (Pa. Super. 1977). “A defendant actually transfers drugs whenever he physically conveys drugs to another person.” Commonwealth v. Murphy, 844 A.2d 1228, 1234 (Pa. 2004) (citing Commonwealth v. Cameron, 372 A.2d 904, 907 (Pa. Super. 1977)).

When determining if a defendant has the intent to deliver a controlled substance, the court must look at all the facts and circumstances. Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa. Super. 2000) (citing Commonwealth v. Harper, 611 A.2d 1211, 1217 (Pa. Super. 1992)). The court may consider the particular method of packaging, the form of the drug, and the behavior of the defendant in determining whether a defendant had the requisite intent to deliver. Id. Possession of a substantial quantity of drugs individually wrapped along with other unused bags is sufficient to prove intent to deliver. Commonwealth v. Torres, 617 A.2d 812, 814 (Pa. Super. 1992).

In the current matter, the defendant is charged with Manufacture, Delivery, o Possession With Intent to Manufacture or Deliver a Controlled Substance concerning heroin contained in a sandwich baggie that Officer Hallowich located on the driver side rear floor of unit 14. Moreover, the Commonwealth has charged the defendant with intentional possession of a controlled substance by a person not registered for possessing heroin. The Commonwealth must establish that the defendant had constructive possession over the subject heroin because the facts alleged cannot establish that the defendant had actual possession of the drug.

Constructive possession is a legal fiction, a pragmatic construct to deal with the realities of criminal law enforcement. Constructive possession is an inference arising from a set of facts that possession of the contraband was more likely than not. We have defined constructive possession as conscious dominion. We subsequently defined conscious dominion as the power to control the contraband and the intent to exercise that control. To aid application, we have held that constructive possession may be established by the totality of the circumstances.

Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super.2012), appeal denied, 63 A.3d 1243 (2013) (internal quotation marks and citation omitted).

Based upon a review of the record, the court concludes that the Commonwealth has not presented sufficient evidence to establish that the defendant had constructive possession of the heroin. Officer Maiella stated that prior to placing the defendant inside unit 14, he searched the defendant’s person for contraband and searched the back of the police car. Officer Maiella did not find contraband on the defendant’s person, nor did he notice anything in or on the rear seat and floor of unit 14. The defendant remained in the back of the police cruiser with his hands cuffed behind his back while being transported to the New Castle Police Station. When the defendant was removed from the back of unit 14, Officer Maiella did not re-check the police car.

Officer Hallowich stated that he did not inspect unit 14 prior to beginning his shift on June 26, 2013. Officer Hallowich was the transporting officer for the defendant’s arrest. Consistent with Officer Maiella’s testimony, Officer Hallowich stated that he did not place the defendant in the police cruiser. Additionally, Officer Hallowich did not remove the defendant from the car. Officer Hallowich stated that, subsequent to transporting the defendant to the New Castle Police Station, he was called to assist with an unrelated incident in Neshannock Township. Officer Hallowich again asked to assist in transporting a second individual to the police station, and prior to placing this individual in the back of unit 14, Officer Hallowich found the heroin, in question. Officer Hallowich stated that when he found the heroin he notified the Street Crimes Unit because he believed the heroin came from the Defendant. N.T. July 11, 2013 p. 40. Officer Hallowich reasoned that he had not transported any other individual prior to responding to the request for assistance in Neshannock Township other then the defendant.

Whenviewedintheirtotality, the facts and circumstances do not support a conclusion that the defendant was in constructive possession of the contraband in question. Officer Hallowich stated that he did not inspect unit 14 prior to beginning his shift, and Officer Maiella stated that the defendant was searched prior to entering the vehicle. Additionally, the defendant was sitting in the back seat of the police cruiser with his hands cuffed behind his back for the duration of his transport to the New Castle Police Station.

Having held that the Commonwealth has failed to establish that the defendant had constructive possession of the heroin found by Officer Hallowich on June 26,2013 in unit 14, and with possession being an element to each of the crimes charged against the defendant, the court concludes that there is insufficient evidence to sustain the charges against the defendant in the instant matter. The court therefore grants the defendant’s petition for writ of habeas corpus regarding the aforementioned charges.

ORDER OF COURT

And now, this 31st day of December, 2013, this case being before the court on November 29, 2011 regarding the defendant’s petition for writ of habeas corpus, with Assistant District Attorney Diane Shaffer, Esquire, appearing onbehalf ofthe Commonwealth of Pennsylvania, and with Lawrence Keith, Esquire, appearing and representing the defendant, Andre DeAngelo McDade, and after a thorough review of the preliminary hearing transcript, the court finds, and it is hereby ordered and decreed as follows:

1. The defendant’s petition for writ of habeas corpus is granted, pursuant to the attached opinion.

2. The charges filed against the defendant at the above referenced case number are hereby dismissed.

3. The clerk of courts is directed to serve a copy of this order of court upon counsel of record, Diane Shaffer, Esquire, and Lawrence Keith, Esquire.

      . 35P.S. §780-113 (a) (30).

      . 35P.S. §780-113 (a) (32).

      . 35P.S. §780-113 (a) (16).