author: BLACK, J,

text:
    Castellano v. Local 302 International Association of Firefighters

      C.P. of Lehigh County,
    no. 2002-C-1604 consolidated with no. 2003-C-1010.

      Gary Figore, for plaintiff.

      Joseph P. Connor III, for defendant Local 302.

      Cary R. Breon and David S. Wolf, for defendants Zaiter.

      Kenneth A. Goodman, for defendant Stangl.

      Joseph P Walsh, for defendant Alkhal.
    December 30, 2004
   BLACK, J,

This matter arises from a shooting incident that occurred at a party held at the Firefighters’ Home (the Home) in Allentown, Lehigh County, Pennsylvania. The plaintiff was struck in the face by a bullet while attending the party. As a result, he suffered serious bodily injuries, for which he seeks both compensatory and punitive damages from the defendants.

Before the court for disposition are four motions for summary judgment as follows: (a) motion of defendants Local 302 International Association of Firefighters, William Held, Allentown Paid Fire Fighters Home Association, City Fire Fighters Union Local 302 International Association of Fire Fighters (the firefighter defendants); (2) motion of defendant Eddie Alkhal; (3) motion of defendants David Zaiter and Rami Zaiter; and (4) motion of defendant Justin Stangl.

For the reasons stated below, we have denied these motions, except for the motion of defendant Eddie Alkhal.

FACTUAL BACKGROUND

Based on the depositions of the various parties and witnesses, the documents identified in these depositions, the affidavit of David Frederickson (professional engineer), and the expert reports of Robert M. Figlio Ph.D. and John J. Shane M.D., the pertinent facts are as follows;

The Home is located on 3.35 acres of land north of Fish Hatchery Road and east of Cedar Crest Boulevard in Allentown, Lehigh County, Pennsylvania. The property is owned by the City of Allentown and was leased on June 2, 1969, to the Allentown Paid Fire Fighters Home Association for a rental of $1 per annum. The lease was in effect at all times relevant to this litigation. The Home was used by members of the Local 302 International Association of Firefighters for meetings and events. In addition, the Home was often rented out to non-members in exchange for a donation to Local 302. Sometimes the non-members as well as members would utilize the facilities for social events open to the general public.

Defendants Rami Zaiter, David Zaiter, Justin Stangl and Joseph Azar (the party organizers) planned a social event at the Home for the evening of April 21, 2001. Arrangements were made with the custodian of the Home, defendant William Field, for use of the Home in return for a $40 donation to Local 302. Fliers were distributed inviting the general public to this event. A disc jockey was hired to provide music, and beer was available on tap for those attending the party. A $7 fee was collected from the attendees to cover the cost of the event, with the profits to be divided among the party organizers.

Defendant Eddie Alkhal helped out at the event by checking the identification of attendees and guarding the rear entrance of the Home.

On April 21, 2001, the party began at approximately 9:30 p.m. At least two members of Local 302 were in attendance at the party. Bars were set up inside the Home and party goers enjoyed unrestricted access to alcohol, regardless of their age.

In a back room, beer-drinking contests known as “keg stands” took place. Participants were held upside down by their legs, and were to consume as much beer as possible in this position with the beer flowing directly from the tap into their mouths. At one point in the evening a fight broke out among those participating in keg stands, and someone pulled out a handgun. Panic ensued, and people started running out of the building. In addition, several assaults took place outside the building during the course of the evening.

At approximately 3 a.m. on the morning of April 22, 2001, while the party was still underway, shots were fired into the Home. At the time of the shooting the plaintiff was inside the building. One of the bullets struck the plaintiff in the face, causing serious injuries, including the loss of his left eye, damage to his senses of taste and smell, and other injuries.

The identity of the shooter and the reason for the shooting remain unknown. The police have no suspects at present. The exact location of the shooter and whether he was a guest at the party also remain a mystery. However, Dr. John Shane, in his expert report, opines that the bullet traveled eight to 10 feet, placing the shooter several feet outside the building.

In the six years preceding the shooting incident, Rami Zaiter had attended at least 20 parties at the Home. Fights and underage drinking were commonplace. The Home’s custodian, William Held, was aware of two prior shootings during social events at the Home.

DISCUSSION

I. Summary Judgment Standard

Summary judgment is warranted after the relevant pleadings are closed under the following circumstances: “(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2.

Summary judgment is to be granted only in a case that is clear and free from doubt. Washington v. Baxter, 553 Pa. 434, 441, 719 A.2d 733, 737 (1998). Where the plaintiff has produced, through depositions and/or expert reports, sufficient evidence of facts essential to his cause of action which would require the issues to be submitted to a jury, summary judgment must be denied.

II. The Plaintiff’s Claim Against the Party Organizers

The Restatement (Second) of Torts §344 (1965) defines the liability of a possessor of land for criminal acts of third parties as follows:

“A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to

“(a) discover that such acts are being done or are likely to be done, or

“(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.”

This section of the Restatement was adopted by the Pennsylvania Supreme Court in Moran v. Valley Forge Drive-In Theater Inc., 431 Pa. 432, 246 A.2d 875 (1968). In Moran, the plaintiff brought an action against a theater owner after he lost his hearing when a firecracker was exploded in the theater bathroom. The court held that “[i]f the place or character of his business, or past experience, is such that he should reasonably anticipate a careless or criminal conduct on the part of a third person, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.” Id. at 436, 246 A.2d at 878.

The court found that there were prior occasions of violence at the theater that could have placed the theater owner on notice. Therefore, the court determined that it was within the province of the jury to decide whether (1) the theater owner took sufficient action to warn patrons of the danger or prevent actions by third parties to prevent injury; (2) the owner fulfilled his responsibility to take reasonable measures to control third parties; and (3) the theater took adequate measures to control third persons and avoid danger.

The holding of the Pennsylvania Superior Court in Rabutino v. Freedom State Realty Company Inc., 809 A.2d 933 (Pa. Super. 2002), is also instructive in the present matter. In Rabutino, a hotel owner and operator and hotel security company were sued after a shooting death at the hotel. A New Year’s Eve party was being held on the night of the shooting with many drunken and underage guests in attendance. The hotel personnel were aware of the party, the underage drinking and the escalating violence. Earlier in the evening the police were called and gunshots were fired. There was also a pattern of crime at the hotel on prior occasions. The court held that a reasonable jury could conclude that the plaintiffs’ harm was foreseeable and that the defendants’ conduct was a substantial factor in causing the harm.

In the present case the plaintiff was clearly a business visitor. He paid $7 for admission to the party, to which he had been invited as a member of the general public. Thus, the party organizers, who were in possession of the building that evening, had a duty to use reasonable care to discover potential criminal acts of third parties, to give a warning to the party guests of potential harm, and to take reasonable precautions to protect them against it. There is sufficient evidence from the deposition testimony and the expert reports submitted by the plaintiff to create genuine issues of fact on these matters. Therefore, it remains for the jury to determine whether the party organizers exercised reasonable care in the circumstances to warn the plaintiff of the potential danger or to otherwise protect him against it.

The party organizers were aware of violence at the Home on prior occasions. Rami Zaiter testified that altercations between attendees at prior events were commonplace, and that he knew of at least one prior shooting. The party organizers claim that they took adequate steps to prevent an outbreak of violence, including the use of a metal detector on attendees, a prohibition against bringing drugs or liquor into the Home, and identifying underage attendees with a hand stamp. However, a jury will have to determine whether these precautions were sufficient and whether they were properly carried out on the evening in question. The fact-finder will also have to consider whether, once violence did break out at the party, the party organizers should have taken further steps to prevent it from escalating.

The party organizers argue that the plaintiff’s complaint must be dismissed because he has been unable to identify the shooter. They also claim that the shooter may not have been on the property where the party was held. However, Dr. Shane’s report places the shooter within a few feet of the building, and the shooting apparently occurred a short time after certain party goers were physically assaulted just outside the Home. From this evidence, a jury could find that there was a causal connection between the shooting incident and the alleged failure by the party organizers to take reasonable steps to protect attendees from violence.

For these reasons, the motions of the party organizers, David Zaiter, Rami Zaiter and Justin Stangl, must be denied.

III. The Plaintiff’s Claims Against the Firefighter Defendants

The firefighter defendants were also obligated to protect invitees to the property from foreseeable harm caused by acts of third persons under the principles of law summarized in the Restatement (Second) of Torts §344. The firefighter defendants had been in possession of the 3.35-acre tract on which the Home was located since 1969 under a lease with the City of Allentown. The firefighter defendants gave the party organizers only temporary use of the Home for the party on April 21, 2001. The firefighter defendants remained in possession of the remainder of the tract, and they also retained a certain degree of control over the building itself during the party. There was no evidence that they were excluded from the building while the party was in progress, and indeed several of their members were observed at the party.

On these facts a jury could find that the firefighter defendants retained sufficient control to support liability. See Forgang v. Universal Gym Co., 423 Pa. Super. 416, 621 A.2d 601 (1993) (health club rented out for social engagement; evidence of employees on the premises with right to supervise use of equipment was sufficient retention of control for jury to find liability). Thus, although their level of accountability may have been different, the firefighter defendants cannot avoid liability to the public by hiding behind the party organizers. They also had a responsibility, as possessors of the property, to protect members of the public from foreseeable harm.

The firefighter defendants argue that section 344 of the Restatement (Second) of Torts does not apply to them since they did not hold the premises “open to the public for entry for (their) business purposes.” This argument is not convincing. The Home was frequently made available for parties to which the general public was invited, and the consideration for use of the property was a donation to Local 302. The same arrangement was made with the party organizers. They were permitted to invite the general public to their party at the Home, and in return they agreed to make a contribution to Local 302. Thus, a business purpose of the firefighter defendants was served by their agreement allowing the party organizers to invite the public to their premises. For this reason, we believe that section 344 of the Restatement (Second) of Torts does apply to the plaintiff’s claims against the firefighter defendants.

Much of the evidence that supports a negligence claim against the party organizers also supports a negligence claim against the firefighter defendants. The firefighter defendants often leased the building to non-members for social events, which were characterized by rowdiness, fights and underage drinking. A jury could find that these parties lacked adequate ground rules and supervision. William Held, the custodian, acknowledged in his deposition that he was aware of two prior shootings at such events.

A jury could find from this evidence that (1) the firefighter defendants should have foreseen the potential for violence when it allowed the party organizers to invite the public to a party at which alcoholic beverages would be served, and (2) under these circumstances the firefighter defendants should have insisted on proper ground rules and supervision. Moreover, at least two members of the firefighter defendants were present on the evening in question and had direct knowledge of the violence that erupted. A jury could find that the representatives of the firefighter defendants who were present should have intervened to stop the party, with the assistance of the police if necessary, or should have insisted on better security measures at that point.

The evidence at trial may turn out to be different from that presented through the depositions. Additional witnesses may testify and additional facts may be elicited through the testimony of the witnesses thus far deposed. However, based on the record presented at this juncture, it is not clear that the plaintiff cannot make out a case of negligence against the firefighter defendants. Therefore, the motion of the firefighter defendants for summary judgment must be denied.

IV. The Plaintiff’s Claim Against Defendant Eddie Alkhal

Defendant Eddie AlkhaPs only involvement was to assist the party organizers on the night of the party by checking the identification of attendees and guarding the rear entrance of the Home. There is no evidence that he participated in the planning of the event; that he had any control over the plans for the security arrangements; or that he was to receive any of the profits from the event. Nor was there any evidence that he failed to carry out his duties in checking identifications and guarding the rear door, or that any such failure was a factual cause of the shooting. Therefore, we do not see any basis for holding him liable in this case, and his motion for summary judgment is granted.

ORDER

Now, December 30, 2004, upon consideration of the motions for summary judgment by (1) defendants Local 302 International Association of Firefighters, William Held, Allentown Paid Fire Fighters Home Association, and City Fire Fighters Union Local No. 302 International Association of Fire Fighters, (2) defendants David Zaiter and Rami Zaiter, (3) defendant Justin Stangl, and (4) defendant Eddie Alkhal, after review of the plaintiff’s response and the briefs submitted by the various parties, and after oral argument, for the reasons stated in the accompanying opinion, it is ordered as follows:

(1) The motion of defendant Eddie Alkhal for summary judgment is granted, and summary judgment is entered in his favor against the plaintiff.

(2) The motions for summary judgment by the other moving defendants are denied.

      . The relationship among the firefighter defendants is not clear from the record, and we have therefore not addressed that issue at this juncture. It appears that the lease from the city was in favor of the Allentown Paid Fire Fighters Home Association; that the property was used by Local 302; and that defendant William Held was a member of Local 302 and the custodian of the Home. The responsibilities of the firefighter defendants inter se will have to be sorted out at trial, unless the parties are able to reach a stipulation in advance.


source: Caselaw Access Project

author: KENNEDY, J,

license: Public Domain

text:
    Citizens for Responsible Development-Windsor Township Inc. v. Windsor Township Zoning Hearing Board

      C.P. of York County,
    no. 2004-SU-02121-Y08.

      John M. Ogden, for appellant.

      D. Michael Craley, for appellee.

      Charles A. Rausch, Stacey R. MacNeal, Wanda L. Snader, Marc B. Kaplin and George W. Broseman, for intervenors.
    November 30, 2004
   KENNEDY, J,

Presently before this court is appellant’s appeal from an order of the Windsor Township Zoning Hearing Board dated June 28,2004. For the reasons set forth below, the appeal is denied.

PROCEDURAL HISTORY AND FACTS

On January 5, 2004, the Windsor Township Board of Supervisors passed ordinance no. 04-01-02, which amended the township zoning ordinance. On May 14, 2004, appellant filed a procedural challenge to ordinance no. 04-01-02, alleging various procedural defects in the enactment of the ordinance. A hearing was held before the Windsor Township Zoning Hearing Board on June 15, 2004. The ZHB issued a decision dismissing appellant’s procedural challenge as untimely on June 28, 2004. On July 13, 2004, appellant appealed the ZHB’s decision to this court.

DISCUSSION

The standard of review by a trial court of an initial decision of a zoning hearing board is limited to whether the board abused its discretion or committed an error of law and whether its necessary findings are supported by substantial evidence. Rushford v. Zoning Board of Adjustment of Pittsburgh, 81 Pa. Commw. 274, 278, 473 A.2d 719, 722 (1984). Further, the trial court must give great weight and deference to the board’s determination. Smith v. Zoning Hearing Board of Huntingdon Borough, 734 A.2d 55 (Pa. Commw. 1999).

Pursuant to the Pennsylvania Municipalities Planning Code (MPC), the ZHB has exclusive jurisdiction to hear challenges to the validity of any land use ordinance when the challenge raises procedural questions or alleged defects in the process of enactment or adoption of the ordinance. 53 P.S. §10909.1(a)(2). Such challenges must be commenced within 30 days after the intended effective date of the ordinance. 42 Pa.C.S. §5571(c)(5). The timeliness of an appeal relates to the jurisdiction of the board and its competency to act. Snyder v. Zoning Hearing Board of Warminster Township, 782 A.2d 1088 (Pa. Commw. 2001). Consequently, the ZHB properly noted that the timeliness of appellant’s procedural challenge is a threshold issue that must be determined for jurisdictional purposes.

The intended effective date of ordinance no. 04-01-02 was January 10, 2004. Appellant did not file its procedural challenge to the ordinance until May 14,2004,125 days after the intended effective date. As a result, the ZHB determined that it lacked jurisdiction to hear the challenge. We affirm the board’s decision.

Appellant argues that the ordinance is void ab initio and that, as a result, the 30-day appeal period does not apply. In making this argument, appellant relies on Cranberry Park Associates v. Cranberry Township Zoning Hearing Board, 561 Pa. 456, 751 A.2d 165 (2000); Valianatos v. Zoning Hearing Board of Richmond Township, 766 A.2d 903 (Pa. Commw. 2001); and Schadler v. Zoning Hearing Board of Weisenberg Township, 578 Pa. 177, 850 A.2d 619 (2004). In each of these cases the court held that procedural defects in the enactment of a local ordinance render the ordinance void ab initio, making the 30-day time limit for procedural challenges inapplicable. The reason being that an ordinance that is void ab initio never has an effective date to begin the 30-day period.

All of the cases cited by appellant in support of its position were decided under pre-amendment section 5571(c)(5), which provided:

“Questions relating to an alleged defect in the process of enactment or adoption of any ordinance, resolution, map or similar action of a political subdivision shall be raised by appeal commenced within 30 days after the effective date of the ordinance, resolution, map or similar action.” (emphasis added)

Section 5571(c)(5) now reads as follows:

“Notwithstanding section 909.1(a)(2) of the Act of July 31,1968 (P.L. 805, no. 247), known as the Pennsylvania Municipalities Planning Code, questions relating to an alleged defect in the process of enactment or adoption of any ordinance shall be raised by appeal or challenge commenced within 30 days after the intended effective date of the ordinance. As used in this paragraph, the term ‘intended effective date’ means the effective date specified in the ordinance or, if no effective date is specified, the date 60 days after the date the ordinance was finally adopted but for the alleged defect in the process of enactment or adoption.” 42 Pa.C.S. §5571(c)(5) (rewritten by Act of December 9, 2002, P.L. 1705, no. 215, §3). (emphasis added)

A recent case interpreting amended section 5571(c) (5) is Taylor v. Harmony Township Board of Commissioners, 851 A.2d 1020 (Pa. Commw. 2004). Taylor involved a procedural challenge to a township ordinance that was commenced 18 months after the ordinance’s intended effective date. Taylor argued that the ordinance was void ab initio because the township failed to properly advertise the ordinance prior to its passage, and that, as a result, the 30-day statutory appeal period did not apply to his challenge. In making this argument, Taylor relied on the same cases relied on by the appellant in the instant matter. However, the Commonwealth Court held that Taylor’s challenge was time-barred pursuant to section 5571(c)(5). Noting that amended section 5571(c)(5) governed Taylor’s challenge, the court concluded:

“Because the 30-day statutory period for challenging alleged defects in the enactment of an ordinance begins on the ‘intended’ effective date ‘but for the alleged defect in the process of enactment or adoption,’ section 5571 (c)(5) now means that the statutory period for bringing procedural challenges to local ordinances begins to run without regard to alleged procedural defects that potentially would preclude the ordinance from taking effect. Consequently, a determination of whether an ordinance is actually void can only come after a timely procedural challenge to the ordinance under amended section 5571(c)(5).” Taylor at 1029. (emphasis in original)

In Glen-Gery Corp. v. Zoning Hearing Board of Dover Township, 856 A.2d 884 (Pa. Commw. 2004), the Commonwealth Court relied on its holding in Taylor to affirm the dismissal of a procedural challenge to a local zoning ordinance as untimely under section 5571(c)(5). The court held that section 5571(c)(5) applies to land use ordinances adopted pursuant to the MPC. It reasoned that not only was the statute adopted later in time than the MPC, but it also unequivocally states that it was intended to apply to land use ordinances enacted under the MPC. Id. at 892.

The amendment to section 5571(c)(5) took effect before appellant raised its procedural challenge to ordinance no. 04-02-01. Therefore, amended section 5571(c)(5), along with the Commonwealth Court’s decision in Taylor and Glen-Gery, are controlling in this matter. Accordingly, because appellant’s procedural challenge was commenced 125 days after the intended effective date of ordinance no. 04-02-01, it is time-barred pursuant to 42 Pa.C.S. §5571(c)(5).

We must now decide whether to allow appellant to proceed nunc pro tunc. The law is clear that statutory appeal periods are mandatory and may not be extended as a matter of grace or mere indulgence. Hudson v. PennDOT, Bureau of Driver Licensing, 830 A.2d 594 (Pa. Commw. 2003). “When a statute fixes the time within which an appeal may be taken, a court may not extend that time period or allow an appeal nunc pro tunc absent a showing that extraordinary circumstances involving fraud or its equivalent, duress, or coercion caused the delay in filing an appeal.” Hanoverian Inc. v. Lehigh County Board of Assessment, 701 A.2d 288, 289 (Pa. Commw. 1997). (emphasis in original) It is “Mppellant’s burden to prove that the fraudulent, negligent or wrongful acts of court or administrative officials require that his appeal be deemed timely.” Farrell Appeal, 69 Pa. Commw. 32, 36, 450 A.2d 266, 268 (1982).

In the instant matter, the record contains no evidence of fraud or bad faith on the part of the township that prevented a timely appeal from being filed. Essentially, appellant is arguing that the township should have disclosed to the public the fact that the board of supervisors had discussed potential changes to the zoning ordinance with representatives from Wal-Mart beginning in the fall of 2003, and that its failure to do so amounts to a fraud or a breakdown in the administrative process sufficient to excuse the untimely filing of its procedural challenge. We are not persuaded by this argument.

First, appellant’s claim that the township’s failure to disclose to the public that it was working with representatives from Wal-Mart prevented appellant from learning about the passage of the amendment until Wal-Mart filed its application for a special exception in March of 2004 is without merit. As required by the MPC, a description of the proposed amendment was published in a newspaper of general circulation on December 17,2003, and again on December 24, 2003. In addition, complete copies of the proposed amendment were made available for public inspection. A hearing on the amendment was held on January 5,2004. The time and place of the hearing was included in the advertisement published by the township. The published notice was sufficient to place appellant and the public on notice of the proposed amendment. The fact that the township did not provide notice of its discussions with Wal-Mart regarding the proposed amendment did not prevent appellant from participating in the enactment process or from filing a timely procedural challenge.

Second, nothing in the MPC requires a township to notify the public of its discussions with township residents or landowners regarding a possible amendment, nor is a township required to notify the public of any potential beneficiaries of a proposed amendment. In the instant matter, nothing prohibited the board of supervisors from discussing the need for an amendment to the township zoning ordinance with representatives from Wal-Mart. As the Commonwealth Court has stated:

“The ‘Sunshine Act’ provides that ‘formal actions’ of agencies such as a board of township supervisors must be made in public meetings open to the public. It is the duty of a school board member, a commissioner, a councilman, or a supervisor to be informed. Supervisors are not restricted to information furnished at a public meeting. A supervisor has the right to study, investigate, discuss and argue problems and issues prior to the public meeting at which he may vote. Nor is a supervisor restricted to communicating with the people he represents. He is not a judge. He can talk with interested parties as does any legislator.

“Nor is a supervisor prohibited from listening to and talking with the applicant for a zoning change, whether the applicant be a resident or non-resident, a taxpayer or non-taxpayer. Any person affected by a township ordinance has the right to expect a township supervisor or other official with responsibility in the area to be reasonably cooperative, to listen, and to avoid obstructive tactics. He can advise and make suggestions. If a supervisor recognizes a problem he is free to relate it and discuss it with all interested persons. None of this means a commitment until a decision is made and formal action taken at a public meeting.” Palm v. Center Township, 52 Pa. Commw. 192, 195, 196, 415 A.2d 990, 992 (1980). (emphasis added)

Even if the township should have disclosed its discussions with Wal-Mart, we fail to see how its failure to do so prevented appellant from filing a timely procedural challenge to ordinance no. 04-02-01.

Based on the foregoing, we hold that appellant has failed to meet its burden of showing fraudulent, negligent or wrongful acts on the part of the township that prevented it from filing a timely procedural challenge. Accordingly, appellant’s request to proceed nunc pro tunc is denied and the decision of the Windsor Township Zoning Hearing Board is affirmed.

      . We note that the Supreme Court in Schadler specifically declined to address the import of the amendment to section 5571(c)(5) because Schadler’s procedural challenge was filed prior to the amendment’s effective date.


author: KENNEY SR., J.,

text:
    Jasinnas v. Montesano

      C.P. of Delaware County,
    no. 97-13124.

      John A. Prodoehl Jr., for plaintiff.

      Jo Ann P. Kelton, for defendant.
    July 28, 2004
   KENNEY SR., J.,

This matter has come before the court in connection with plaintiff/ mother’s petition for special relief seeking enforcement of a property settlement agreement entered into between the parties which requires each to contribute to the cost of a child’s post-secondary education. Father appeals the order of this court dated April 22, 2004, enforcing the provisions of the agreement and requiring rather to pay a portion of the post-secondary education expenses of Paul Montesano Jr. (Son) in accordance therewith.

FACTUAL BACKGROUND

The parties hereto are the natural parents of a son, Paul Montesano Jr., who, at the time of the hearing of this matter, was completing his high school education and preparing to undertake his post-secondary education.

In connection with their divorce, the parties entered into a property settlement agreement which, at paragraph nine thereof, made provision for the payment of their children’s post-secondary educations, as follows:

“(9) Higher education expenses of children

“Husband and wife agree to share financial responsibility in proportion to their respective incomes (both passive and active) for the reasonable cost of education. For purposes of this paragraph, the ‘costs of education’ are defined as application fees or deposits, other required activity and examination fees, tuitions, books, room, board, transportation and any other required charge made by the educational institution. Husband and wife shall, prior to making any decision as to the enrollment of the children in any particular institution, give consideration to:

“(a) the recommendation of relevant educators;

“(b) the wishes and needs of the children;

“(c) the academic program requirement;

“(d) the cost of education involved;

“(e) the ability or desirability of the children to contribute toward said cost; and

“(f) any other relevant factor.

“Husband and wife, in granting final approval as to the cost of education, including the selection of the education institution, shall also take into account the transportation expenses, if any, likely to be incurred and may appropriately consider these expenses as part of the cost of education.

“Husband’s obligation under this paragraph is conditioned upon his being consulted with respect to the choice of educational institution and his approval thereof obtained, however, that his approval shall not be unreasonably withheld and also that said child has not been emancipated.”

The parties, accordingly, clearly contemplated that their children would attend college, and that they would contribute to the cost of their educations. They, further, defined “costs” broadly.

They also required consideration of the desires of the children, availability of programs consistent with the children’s goals, and the possibility of savings to be afforded by attendance at a school not necessitating costs of transportation.

They also provided that neither would withhold his or her approval unreasonably.

At the time of the hearings, Father was earning approximately $80,000 per year. (4/22/04 N.T. at 17.) Moreover, Father acknowledges that this is approximately twice what Mother earns. (4/13/04 N.T. at 29.)

Father claims that Mother and Son failed to consult with him in connection with the selection of a school, and that the cost of the university in which Son has enrolled is unreasonable.

The court found both arguments to be without merit.

Son desires to pursue a career in mechanical engineering. (4/22/04 N.T. at 23.) Accordingly, he investigated the program at Drexel University.

Father admits that Son communicated to him his interest in Drexel University in December of 2003. (4/13/ 04 N.T. at 11 and 4/22/04 N.T. at 11.) He admits, also, that he spoke with Son about the application process and financial aid situation on a number of occasions thereafter. (4/22/04 N.T. at 21.) He admits, also, that he never spoke with Mother about the process (4/13/04 N.T. at 14) and that he made absolutely no investigation of the merits of Drexel University or of alternate universities which might have been suitable given Son’s career choice. (4/22/04 N.T. at 14.).He did have a vague understanding that West Chester University and Shippensburg University might be less expensive. He made no investigation, however, with respect to whether either offered a mechanical engineering program. Son testified that they do not. (4/22/04 N.T. at 23.)

Father also undertook no role in consideration of the means by which Son’s education might be financed, choosing, instead, to leave those matters to Mother and Son. He did not testify to even a single occasion on which he attempted to consult with Mother, although he admitted to talking about it periodically with Son.

Mother, for her part, attempted to telephone Father to involve him in the process, and handed him literature related to his son’s tentative enrollment at Drexel on January 7, 2004. (4/13/04 N.T. at 16.) Mother also invited Father to an open house at Drexel. (4/13/04 N.T. at 14.)

Son also appeared at the hearing on April 22, 2004, and testified that he spoke with Father as the application and enrollment processes unfolded.

Father, clearly, therefore, chose not to involve himself in the application process or involve himself in any meaningful consultation with Mother or Son. He, instead, has simply responded by saying that he can’t afford to pay for Son’s education at Drexel. (4/13/04 N.T. at 20.)

He does acknowledge a responsibility to contribute, saying:

“I’m not saying I do not want to share responsibility of a college, but I would’ve liked to been consulted about things that were taking place in this college that she says she consulted me on and she has never consulted me on.” (4/13/04 N.T, at 26.)

He also testified that he didn’t object to Son’s attending Drexel. (4/13/04 N.T. at 27.) He simply felt he couldn’t afford 65 percent of the cost.

He proposed, instead, that he would contribute 1/3 of the cost of a less expensive school, on the basis that he, Son, and Mother would contribute equally. (4/13/04 N.T. at 28.) That, he felt, was reasonable even though Son had no income and he makes twice what Mother does.

The court thereupon scheduled a second hearing to hear from Son, and, in the interim period, Mother sent Father a proposal that the matter be resolved by Son’s being responsible for 1/3, that she would be responsible for one-half of the remaining 2/3, and that Father would be responsible for the rest. (4/22/04 N.T. at 4.)

Father made no response.

He, instead, reaffirmed his position at the second hearing, saying:

“Let it be known to this courtroom I will not deprive my children of a college education, but I must be consulted with. It must be reasonable, affordable, and not cause undue financial hardship. I cannot afford the cost of this educational institution, therefore my approval is not forthcoming.” (4/22/04 N.T. at 8.)

He made no showing, however, with respect to the amount of his savings, of his expenses, of the amount he could contribute, or of his inability to contribute the amount being proposed.

Moreover, although continuing to insist that he be consulted, he made no further inquiries or efforts in the interim, and made no effort to consult with Mother or Son, but, instead, simply withheld his approval.

He admitted, in fact, that he still didn’t know the cost of Son’s education at Drexel. (4/22/04 N.T. at 12.) He also admitted that his vague impression of the cost at West Chester University didn’t include the cost of room or board, and that he didn’t know the amount of those costs. (4/22/04 N.T. at 20 and 21.)

Son appeared and testified that he wished to attend Drexel in that it was convenient to his home, in that it had the program he wanted, and that Drexel had given him a certain amount of security by admitting him under its early acceptance program. (4/22/04 N.T. at 27.) He testified, also, that due to the difficulty of the program, Drexel has a high dropout rate, and that he, therefore, felt he would be better able to address his studies by living on campus. (4/22/04 N.T at 35.) He noted, also, that it would be more difficult for him to meet the academic burden if he were forced to work in order to pay his proposed 1/3 of the cost. (4/22/04 N.T. at 36.)

He, nonetheless, made that offer in order to make the cost more bearable for his parents.

The court, accordingly, entered an order accepting Son’s proposal, thereby imposing on Father the obligation to pay 1/3 of the cost instead of 2/3 of the cost as is provided in the agreement.

In so doing, it concluded that the resulting cost to Father was reasonable.

It also concluded that Father’s motivation in withholding approval was based upon a desire to reduce the cost to him and not upon any inability to be a part of the process, or any consideration relating to the institution itself.

While, as Father contends, the agreement required Mother to consult with him, it also required him to take an active role in the process. He will not be permitted to avoid his responsibilities when he demonstrated no interest in participating in consultations and took essentially no part in the process.

On the contrary, the agreement specifically provided that Father’s approval “shall not be unreasonably withheld.”

Here, Father clearly withheld his approval unreasonably when, by his choice, he took no part in the application or financial aid process, when he refused to consult with Mother, when he made no investigation of programs suitable to Son’s needs, and when he made no investigation of the cost of the various institutions or of how the cost might be met.

The court, accordingly, entered an order for one academic year, requiring Father to pay the sum of $13,126, representing 1/3 of the cost, and, in fact, making Father’s obligation more reasonable by directing him to pay a sum which is substantially less than that which Father agreed to pay.

DISCUSSION

(A) Father raises the following matters on appeal:

(1) The court abused its discretion and erred as a matter of law by failing to grant defendant’s petition for reconsideration.

That petition alleged that the property settlement agreement should not be enforced in that Father claims that he was not consulted in connection with the choice of school and application for financial aid, in that, when he did learn of the application, he believed that his son was applying for a Reserve Officers’ Training Corps (ROTC) scholarship, in that he claims that Mother did not furnish the court with her financial information at the hearing, and in that Father has other expenses relating to the support of his children.

As noted, the court found these arguments to be without merit.

Father was clearly apprised of the application process by both Mother and Son, and made no effort to be a part of it, or consult with the others. He, therefore, may not be heard to complain that he was excluded from the process. He had an obligation to be proactive and to act reasonably in the giving or withholding of his approval. His decision was not reasonable when he declined to look into the matter or consult with the others.

Father is, similarly, not entitled to avoid his obligation to Son, or withhold his approval, because of a failed attempt by Son to obtain assistance from ROTC. Son, in applying for ROTC and other financial assistance, fulfilled his obligation to attempt to lesson the cost. He did all that could have been done, and all that the agreement required.

Father’s claim that Mother failed to furnish him with financial information at the hearing is also without merit.

Firstly, Father, himself, testified that he earned twice what Mother does.

Secondly, apparently secure in that knowledge, he made no request for further information.

Finally, Father’s expenses relating to other children are simply irrelevant and immaterial under the agreement. In any event, Mother has similar expenses.

Father also makes a series of allegations that the court failed to consider certain facts he deems to be relevant and material to the issues before the court:

(2) The court erred in failing to consider testimony by Father that he informed his son that, based on his sal ary, he could only afford tuition at a state school with a tuition range of $13,000 to $14,000, and could not afford a private school.

The court finds this claim to be without merit for the reasons set forth hereinbefore.

It assuredly did consider Father’s testimony that he couldn’t afford the cost of Drexel University.

(3) The court erred in failing to consider testimony by Father that his son told him he had applied to the ROTC program at Drexel University in an effort to have tuition paid for by the program.

(4) The court erred in failing to consider testimony by Father that he did not learn that his son had not been accepted into the ROTC program at Drexel University until his daughter told him so in December of2003.

The court did not fail to consider this testimony. The facts asserted are simply not dispositive of the parties’ rights and responsibilities.

(5) The court erred in failing to consider testimony by Father that he frequently requested updates from his son concerning college selection, and that he was misinformed by his son with respect to the application process.

Simply put, Father offered no such testimony. He generally testified, on the contrary, that he was essentially uninvolved in the process, and his uninvolvement was apparent to the court.

(6) The court erred in failing to consider that Mother testified that she received financial aid information from Drexel University on March 17, 2004, and then filed her petition for special relief with the court on March 29, 2004.

This argument is irrelevant and immaterial, and is not supported by the record.

(7) The court erred in failing to consider the fact that Mother producedfinancial aid information from Drexel University to Father for the first time at the hearing of April 13, 2004.

As discussed hereinbefore, this argument, if true, is of little or no weight. Father knew Son wished to attend Drexel. Father made no effort to investigate the cost of Drexel or how it might be paid when this information was freely available to him, either from the institution, or from Son. He made no request of Mother, and, in any event, she had no greater obligation to transmit this information than he had to obtain it for himself.

(8) The court failed to consider the fact that Drexel University only considered the prospective student’s household income when determining an amount of financial aid and failed to consider his income.

No such evidence was introduced at the hearing.

(9) The court erred in failing to consider Father’s testimony that, if he had known of his son’s acceptance to Drexel without admission to the ROTC program, he would have insisted that Son apply to other schools which were more affordable.

Father gave no such testimony.

Father, moreover, having made no investigation himself, offers no suggestion what more suitable arrangement might have been found, or its cost, nor, for that matter, whether its cost is more or less than the compromise amount he has been ordered to pay.

(10) The court abused its discretion and erred as a matter of law in not finding that Mother had violated various provisions of 23 Pa.C.S. §4327 respecting post-secondary educational costs.

Father’s reliance upon 23 Pa.C.S. §4327 is misplaced.

Section 4327 expressly provides that: “the court may order either or both parents who are separated, divorced, unmarried or otherwise subject to an existing support obligation to provide equitably for educational costs of their child....” 23 Pa.C.S. §4327(a).

Accordingly, by its express language, section 4327 is applicable to actions brought for support, and has no application here.

Mother’s petition, on the contrary, has been brought to enforce a property settlement agreement entered into in the context of a divorce action, and, accordingly, the parties’ rights and responsibilities are to be determined pursuant to the law of contract.

CONCLUSION

For all of the foregoing reasons, the court submits that the provisions of the property settlement agreement between the parties respecting payment for the post-secondary education of Paul Montesano Jr., ought to be enforced, and its order of April 22, 2004, affirmed.


author: PEREZOUS, J,

text:
    Brandt v. United States Liability Insurance Group

      C.P. of Lancaster County,
    no. CI-03-05721.

      Thomas G. Klingensmith, for plaintiffs.

      Eric R. Brown, for defendant.
    January 10, 2005
   PEREZOUS, J,

Presently before the court is a motion for summary judgment filed by the defendant, United States Liability Insurance Group, seeking a declaratory judgment against plaintiffs, Dennis Brandt, Re/Max Cornerstone and Joleen Corporation. Defendant contends that it is entitled to summary judgment on the grounds that it owes neither a duty to defend nor indemnify plaintiffs in an underlying lawsuit based upon the plain language of the U.S. Liability Real Estate Agents Errors and Omissions Liability Policy issued by defendant. The plaintiffs, however, contend that the exclusion contained in the policy does not apply and the defendant should provide coverage and defense, or, in the alternative, provide defense of the suit. For the following reasons, this court grants the defendant’s motion for summary judgment.

The plaintiffs in the underlying action, Parke Rineer and April Rineer, allege that they purchased a home from Clarke Berrier and Karen Berrier. It is alleged that the listing real estate broker for these homeowners was Re/ Max Cornerstone, which is owned by Joleen Corporation. In addition, it is alleged that Dennis Brandt was the real estate agent employed by Re/Max. The Rineers claim that, prior to the time they occupied the premises, the soil, well water, and ground water had been contaminated with home heating oil from an underground heating oil storage tank that had been removed from the premises prior to its sale to them.

The complaint in the underlying action contains five counts against Dennis Brandt and/or Re/Max Cornerstone and Joleen Corporation: (1) Count IV, negligence against Dennis Brandt; (2) Count V, negligent misrepresentation against Dennis Brandt; (3) Count VI, fraud against Dennis Brandt; (4) Count VII, respondeat superior against Re/Max and Joleen; and (5) Count XI, violations of the Consumer Protection Law. In Counts IV and V, it is alleged that Dennis Brandt, acting in the capacity of the seller’s agent, had actual knowledge that the premises were contaminated and knew that a petroleum odor was emanating from the premises, including the tap water. Count VI contains identical averments, but adds that the Berriers and Brandt intentionally concealed the defects at the premises and that Brandt allowed the Berriers to make knowingly false statements concerning the premises. Count VII alleges that Re/Max and Joleen are liable for the acts of Brandt under the doctrine of respon-deat superior. Count XI alleges that the defendants engaged in unfair and deceptive acts and practices in violation of the Unfair Trade Practices and Consumer Protection Law by knowingly failing to disclose matters pertaining to the contamination of the premises, including the water supply.

Consequently, plaintiffs filed a declaratory judgment action seeking a determination of the parties’ respective rights and responsibilities under the policy issued by defendant. In response, defendant filed its answer, new matter and counterclaim to the plaintiffs’ complaint. The plaintiffs contend that the defendant is obligated to defend and/or indemnify them in the underlying lawsuit. The defendant, however, avers that an exclusion contained within the policy does not require any defense or indemnification of the plaintiffs in the underlying lawsuit.

Under a section entitled “Exclusions,” the policy states:

“(C) Contaminants, Pollutants, Hazardous Materials, Irritants, Toxic Substances, Pathological Conditions Exclusion

“This policy does not apply to, and the company will not defend or pay for, any claim, damages, claims expenses, loss, cost or expense arising out of, directly or indirectly resulting from, caused by, based upon, in any way involving, or in any way related to either:

“(1) (a) The actual or alleged presence or absence in, on, under or otherwise connected to real estate, of or

“(b) Any actual or alleged personal injury arising out of

“contaminants, pollutants, hazardous materials, irritants, or pathological conditions, including, but not limited to smoke, vapors, soot, fumes, acids, salt, al-kalis, toxic chemicals, liquids or gasses, waste materials, lead, lead compounds, materials containing lead, other metals, radon, asbestos, urea formaldehyde, bacterial or microbial contamination or electromagnetic radiation;

“(2) The proximity of real estate to any landfill, surface impoundment, incinerator or site polluted or contaminated with contaminants, pollutants, hazardous materials, irritants or pathological conditions set forth in paragraph 1 above;

“(3) The abatement, mitigation, neutralization, removal or disposal of any of the contaminants, pollutants, irritants or other pathological conditions set forth in paragraphs 1 and 2 above; or

“(4) Any supervision, instruction, recommendation, warnings, advice, written reports or assurances given or which should have been given in connection with paragraphs 1, 2 and 3 above.

“(5) Any obligation to share damages with or repay someone else who must pay damages because of any claim, damages, claims expenses, loss, cost or expense as described in paragraphs 1 through 4 above.” Exhibit “A” to exhibit “1,” section VIII. C. (emphasis omitted)

Claiming that this language does not require the defendant to indemnify the plaintiffs or defend the lawsuit, the defendant filed its motion for summary judgment.

First, it is proper for this court to declare that defendant does not have a duty to defend or indemnify plaintiffs in the underlying action. Declaratory judgments are expressly authorized in Pennsylvania by the Declaratory Judgments Act, and are available to obtain a declaration of existing legal rights and duties if such a declaration will aid in the determination of a genuine, justiciable controversy. 42 Pa.C.S. §§7531-7541; Warner v. Continental/CNA Insurance Cos., 455 Pa. Super. 295, 301, 688 A.2d 177, 180 (1996). When addressing declaratory judgments, courts must follow the practice and procedure of the Pennsylvania Rules of Civil Procedure. Pa.R.C.P. 1601(a). Whether a court should exercise jurisdiction over a declaratory judgment is a matter of discretion. American Nuclear Insurers v. Metropolitan Edison Co., 399 Pa. Super. 375, 379, 582 A.2d 390, 392 (1990); Presbyterian-University of Pennsylvania Medical Center v. Keystone Insurance Co., 251 Pa. Super. 71, 73, 380 A.2d 381, 382 (1977). A court has jurisdiction to issue a declaratory judgment that interprets the obligations of parties under an insurance contract, including questions of whether an insurer has a duty to defend and/or indemnify a party under the terms of the policy. General Accident Insurance Co. of America v. Allen, 547 Pa. 693, 706, 692 A.2d 1089, 1095 (1997).

Additionally, a court shall not entertain a declaratory judgment action where another proceeding is pending in another court to which all the same parties are named and in which all the same issues may be adequately adjudicated. Parker v. Commonwealth, Department of Labor and Industry, 115 Pa. Commw. 93, 107-108, 540 A.2d 313, 322 (1988). Finally, a court may refuse to enter a declaratory judgment where the judgment will not terminate the uncertainty or controversy giving rise to the proceeding. 42 Pa.C.S. §§7536-7537. In the present matter, a declaratory judgment is appropriate because it will terminate any question as to whether defendant has a duty to defend and/or indemnify the plaintiffs in the underlying lawsuit.

Second, it is well settled in this Commonwealth that summary judgment is proper only when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035.2. Under the Pennsylvania Rules of Civil Procedure there are two situations in which a summary judgment motion is permissible:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law:

“(1) Whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or

“(2) If, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2(a).

Generally, the moving party has the burden of proving that no genuine issue of material fact exists. Ertel v. Patriot-News Co., 544 Pa. 93, 99, 674 A.2d 1038, 1041 (1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996). In determining whether summary judgment is appropriate, the court must review the evi-dentiary record in a light most favorable to the non-moving party, and that party will be given all reasonable inferences created by that evidence. Bethlehem Steel Corp. v. MATX Inc., 703 A.2d 39,41 (Pa. Super. 1997). In other words, any doubt must be resolved against the party seeking summary judgment, and it should only be granted in cases that are free and clear of doubt. Davis v. Pennzoil Company, 438 Pa. 194, 202, 264 A.2d 597, 601 (1970).

When a court interprets an insurance contract, however, case law modifies normal standards of review for summary judgment. The proper construction of insurance policies is a matter of law. Vale Chemical Co. v. Hartford Accident and Indemnity Co., 340 Pa. Super. 510, 516 n.4, 490 A.2d 896, 899 n.4 (1985), rev ’d on other grounds, 512 Pa. 290, 516 A.24 684 (1986). Hence, questions concerning any limitation of coverage under an insurance policy can be disposed of on a motion for summary judgment as long as there are no issues of material fact. Burne v. Franklin Life Insurance Co., 451 Pa. 218, 301 A.2d 799 (1973). When addressing a policy under a motion for summary judgment, a court will give effect to clear and unambiguous language in an insurance contract and uphold the plain meaning of an explicit exclusion from coverage. Huffman v. Aetna Life and Casualty Co., 337 Pa. Super. 274, 282, 486 A.2d 1330, 1334 (1984). However, if the terms of a policy are ambiguous, a court cannot grant summary judgment. Id.; Horowitz v. American Casualty Co. of Reading, 277 Pa. Super. 61, 63, 419 A.2d 660, 661 (1980).

The Pennsylvania Supreme Court has set forth the well-settled standard to be followed in the interpretation of an insurance policy:

“The task of interpreting a contract is generally performed by a court rather than by a jury.... The goal of that task is, of course, to ascertain the intent of the parties as manifested by the language of the written instrument. . . . Where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement. ... Where, however, the language of the contract is clear and unambiguous, a court is required to give effect to that language.” Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 304-305, 469 A.2d 563, 566 (1983). (citations omitted)

Contractual terms are ambiguous “if they are subject to more than one reasonable interpretation when applied to a particular set of facts.” Madison Construction Co. v. Harleysville Mutual Insurance Co., 557 Pa. 595, 606, 735 A.2d 100, 106 (1999). In determining whether the terms are ambiguous, the court cannot distort the plain meaning of the words found in the agreement. Id. Any true ambiguities, however, must be construed against the insurer and in favor of the insured. St. Paul Fire & Marine Ins. Co. v. Lewis, 935 F.2d 1428, 1431 (3d Cir. 1991).

Furthermore, in assessing whether an insurer has a duty to defend its insured, the court must first look to the complaint filed against the insured. D’Auria v. Zurich Insurance Co., 352 Pa. Super. 231, 234, 507 A.2d 857, 859 (1986). In determining whether an insurer has a duty to defend those insured under a policy, the Pennsylvania Superior Court stated “[t]he duty to defend is limited only to those claims covered by the policy.... Thus, the insurer owes a duty to defend if the complaint against the insured alleges facts which would bring the claim within the policy’s coverage if they were true.” Id. at 235, 507 A.2d at 859. (citations omitted) (emphasis omitted) Thus, unlike the focus of a normal motion for summary judgment, the appropriate question here is not whether there is a genuine issue of material fact. Instead, the court must determine whether the policy covers the damages claimed as if all the alleged facts were true. If the claimed damages are not covered by the policy, the defendant is entitled to summaiy judgment and a declaration that they have no duty to defend or indemnify plaintiffs.

When there are multiple claims, moreover, for at least one of which there is potential coverage, the insurer must defend all claims “until facts sufficient to confine the claims to liability not within the scope of the policy become known to the insurer.” Lucker Mfg. v. Home Ins. Co., 23 F.3d 808, 813 (3d Cir. 1994). Thus, if an insurer initially has a duty to defend with respect to any aspect of the lawsuit, the insurer has a duty to defend with respect to every aspect of the lawsuit. C. Raymond Davis & Sons Inc. v. Liberty Mut. Ins. Co., 467 F. Supp. 17, 19 (E.D. Pa. 1979). However, once it is determined that there is no obligation to provide the broader duty to defend, the more narrow duty to indemnify is also extinguished. Id.

Exclusions from coverage contained in an insurance policy will be effective against an insured if they are clearly worded and conspicuously displayed, irrespective of whether the insured read the limitations or understood their import. Venetian Blind, 503 Pa. at 307, 469 A.2d at 567. When an insurer attempts to rely upon an exclusion in the policy to deny insurance coverage, the insurer carries the burden of demonstrating the applicability of that particular exclusion. Allstate Ins. Co. v. Brown, 834 F. Supp. 854, 857 (E.D. Pa. 1993). “The burden is [then] on the insured, not the insurer, to introduce evidence to show that the exclusion which appears to be triggered does not apply after all.” Air Products & Chemicals Inc. v. Hartford Accident & Indem. Co., 25 F.3d 177, 180 (3d Cir. 1994). “If the insured is successful in demonstrating that coverage is not necessarily excluded by the facts averred in the complaint, the insurer is required to defend the underlying suit.” Id.

Because the court is free from doubt that the exclusion presently at issue bars coverage, defendant has no duty to indemnify plaintiffs or defend them in the underlying lawsuit. The exclusion is neither ambiguous nor unclear, therefore the court can apply its plain and common meaning to the facts alleged. Each cause of action alleged against the insured defendants in the underlying complaint (the plaintiffs in the instant action) arises out of their failure to disclose that the premises were contaminated with home heating oil that leaked from an underground storage tank. Under the clear and unambiguous language of the policy, claims associated with such contamination are excluded from coverage.

Specifically, the policy states that the defendant “will not defend or pay for, any claim, damages, claims expenses, loss, cost or expense arising out of... or in any way related to ... [t]he actual or alleged presence... of ... contaminants [or] pollutants.” Exhibit “A” to exhibit “1,” section VIII.C. Furthermore, defendant “will not defend or pay for, any claim, damages, claims expenses, loss, cost or expense arising out of, directly or indirectly resulting from, caused by, based upon, in any way involving, or in any way related to . .. [a]ny . . . instruction, recommendation, warnings, advice, written reports or assurances given or which should have been given in connection with [any contamination of the premises].” Id. Under the terms of the policy, then, defendant is not required to defend or indemnify the plaintiffs in the underlying lawsuit because such claims arise from the contamination of the premises. Accordingly, any coverage is excluded by the contaminants and pollutants exclusion contained within the policy.

Although plaintiffs contend that the Pennsylvania Supreme Court limited the Venetian Blind standard in Tonkovic v. State Farm Mutual Automobile Insurance Co., this court cannot agree with such an argument. In Tonkovic, the Supreme Court expressed that “Courts should be concerned with assuring that the insurance purchasing public’s reasonable expectations are fulfilled.” Tonkovic, 513 Pa. 445, 456, 521 A.2d 920, 926 (1987). As such, the plain language of an insurance policy will not be enforced in every instance. See id. It is important to note that in Tonkovic, the insured sought a specific type of coverage. Id. at 447, 521 A.2d at 921. Nonetheless, the insurer issued a policy which excluded the type of coverage that the insured requested. Id. at 448, 521 A.2d at 922. Consequently, the Tonkovic court refused to follow the plain language of the policy and enforced the reasonable expectations of the insured. The court did not, however, limit the standard set forth in Venetian Blind. As the court stated:

“We find a crucial distinction between cases where one applies for a specific type of coverage and the insurer unilaterally limits that coverage, resulting in a policy quite different from what the insured requested, and cases where the insured received precisely the coverage that he requested but failed to read the policy to discover clauses that are the usual incident of the coverage applied for.” Id. at 454, 521 A.2d at 925.

In the present case, there is no allegation that the defendant unilaterally changed the policy to restrict the type of coverage that the plaintiffs specifically requested. Additionally, the pollution exclusion is precisely the type of standard policy exclusion distinguished by Tonkovic. As a result, there is no reason to refuse to enforce the plain language of the policy.

Moreover, the exclusion should not be read to preclude coverage only where the insured actually participates in the pollution. Such a reading would distort the plain language of the policy. The exclusion’s language states that it applies to “any claim... in any way involving, or in any way related to .. . [t]he actual or alleged presence or absence in, on, under or otherwise connected to real estate, of. . . contaminants [or] pollutants.” Exhibit “A” to exhibit “ 1,” section VIII.C. Accordingly, the exclusion applies to any “claim.” Nowhere in the policy does it state that coverage is excluded only where the insured participates in the pollution. Hence, the exclusion applies to the underlying claims asserted against the plaintiffs.

Our decision is also in accord with prior court decisions. Interpreting a similar clause, the Pennsylvania Superior Court stated that “[t]here is no coverage for claims which are based [up] on the escape of pollutants, and this is so irrespective of the role which thé insured is alleged to have played in the pollution.” O’Brien Energy Systems Inc. v. American Employers’ Insurance Co., 427 Pa. Super. 456, 468, 629 A.2d 957, 963 (1993). In addition, the language of a similar policy exclusion “indicated [a] ‘but for’ or ‘cause and result’ relationship” between the contamination and the alleged claims. Madison Construction Co. 557 Pa. at 612, 735 A .2d at 110. In the present case, the claims would not have arisen without the presence of the contamination. As a result, the policy excludes any type of coverage for the claims made against the plaintiffs in the underlying action.

It is of no consequence, moreover, that the underlying claims relate to the fraud and/or negligence on the part of the plaintiffs in their alleged failure to disclose the existence of the contamination. As previously stated, the exclusion contemplates a causal nexus between the contamination and the claims set forth against the insured plaintiffs. Here the alleged nondisclosure is linked to the alleged contamination of the premises. Any claims relating to such contamination are excluded by the plain, unambiguous language of the policy. Therefore, defendant has no obligation to defend the underlying lawsuit, or indemnify the plaintiffs.

Accordingly, the court enters the following:

ORDER

And now, January 10,2005, upon consideration of the defendant’s, United States Liability Insurance Group, motion for summary judgment, together with the briefs and supporting papers filed by the parties, it is hereby ordered that such motion is granted, and the court declares that defendant has no duty to defend or indemnify plaintiffs, Dennis Brandt, Re/Max Cornerstone, and Joleen Corporation, from the underlying claims filed by Parke Rineer and April Rineer.