author: HIGGINS, J.,

text:
    Slutter v. Kerrick

      C.P. of Monroe County,
    No. 3729 CIVIL 2014

      John B. Dunn, for plaintiffs.

      Richard S. Bishop, for defendants.
    June 5, 2015
   HIGGINS, J.,

ADJUDICATION

This case involves a family property dispute. On May 7, 2014, Plaintiffs Stephen R. Slutter, Sr., Barbara L. Slutter, h/w, John Straukas, Jr. and Elizabeth L. Straukas, h/w (“Plaintiffs”) filed a complaint in ejectment against Defendants Alfred A. Kerrick, II and Marlies J. Kerrick, h/w, and Kevin Kerrick (collectively “Defendants”). The action follows the sale of real property consisting of approximately 24 acres from Mary Lou Kerrick to her daughter, Barbara L. Slutter, and the remaining Plaintiffs. Defendant Alfred A. Kerrick is the son of Mary Lou Kerrick and brother of Barbara L. Slutter. The sale of the property included the farm; however a portion of the property was being used by Defendants in furtherance of their construction business. On June 17,2014, Defendants filed an Answer and New Matter to the complaint in ejectment. During the first day of hearing, Defendants orally requested to amend their Answer. We granted leave for Defendants to amend their Answer over the objection of Plaintiffs. A non-juiy trial was held over the course of two separate days; September 18, 2014 and January 8, 2015.

FINDINGS OF FACT

1. Plaintiffs are owners of real property located in Tobyhanna Township, Monroe County, Pennsylvania (“property”).

2. The property was previously owned by George E. Kerrick and Mary Lou Kerrick, husband and wife, and upon the death of George E. Kerrick, the property was vested solely in Mary Lou Kerrick.

3. Plaintiff Barbara L. Slutter is the daughter of George E. Kerrick and Maiy Lou Kerrick and Plaintiff Stephen R. Slutter is the husband of Barbara L. Slutter.

4. Plaintiff Elizabeth L. Straukas is the daughter of Stephen R. Slutter and Barbara L. Slutter. John W. Straukas, Jr. is the husband of Elizabeth L. Straukas.

5. Defendant Alfred A. Kerrick is the son of George E. Kerrick and Mary Lou Kerrick, and Marlies J. Kerrick is the wife of Alfred A. Kerrick.

6. Defendant Kevin Kerrick is the son of George E. Kerrick and Mary Lou Kerrick.

7. The property was used as a farm by the Kerrick family for many years.

8. In the late 1980s George E. Kerrick, Mary Lou Kerrick, Alfred A. Kerrick and Marlies J. Kerrick formed a partnership known as “George E. Kerrick & Son” (“partnership”) in order to conduct a construction business.

9. The partnership listed the principal place of business as the property.

10. The partnership operated its business from the property using a small portion of the property to park vehicles and it uses several structures to house certain construction material and debris.

11. The partnership also used a lane, a part of which contained Defendants Alfred A. Kerrick and Marlies J. Kerrick’s (hereinafter collectively referred to as “Kerrick”) driveway, to access the property and structures used by the partnership.

12. In 2009, Defendant Kevin Kerrick became a junior partner in the partnership. Kevin Kerrick was given his grandparent’s, George E. Kerrick and Mary Lou Kerrick’s interest in the partnership. Kevin Kerrick did not make a financial contribution atthe time he entered the partnership.

13. On June 27, 2006, George E. Kerrick and Mary Lou Kerrick executed a quit claim deed into a revocable trust named the “Kerrick Family Trust” (“trust”). After George E. Kerrick died, Mary Lou Kerrick revoked the trust and conveyed her interest in the property to Plaintiffs on October 2, 2013.

14. From 1988, the partnership made several investments to improve the property, including enlarging the chicken coop and modifying sheds for storage of construction materials.

15. The use of the property by the partnership began with the permission of George E. Kerrick and Mary Lou Kerrick.

16. A sketch of the area in dispute is set forth in Plaintiff’s Exhibit 6, which was prepared by Stephen R. Slutter.

17. Prior to October 2013, Mary Lou Kerrick met with Attorney Ralph Matergia to discuss the sale of the property to Plaintiffs.

18. Attorney Matergia testified credibly that Mary Lou Kerrick was clear about her intentions to convey the property to Plaintiffs. He testified that Mary Lou Kerrick did not want her son, Albert A. Kerrick, to be involved in the property.

19. Attorney Matergia stated that Mary Lou Kerrick, as the surviving trustee in the trust, had the authority to convey the property to Plaintiffs.

20. After the conveyance, Plaintiffs asked Defendants to cease from using the property.

21. Defendants have not stopped using the property, however, Defendants have removed some encumbrances and construction debris.

22. A portion of the Kerrick’s driveway /parking area is located on the property.

23. Defendant Marlies J. Kerrick also maintains a flower garden adjacent to her residence which is located on the property.

24. On May 7, 2014, Plaintiffs filed an action in ejectment, seeking to eject Defendants from the property.

25. Plaintiffs’ action also request Defendants pay fair rental value for the portion of the property used for the partnership business.

DISCUSSION

In the present case, Plaintiffs are bringing this action in ejectment in order to eject Defendants from entering upon and using the property for the furtherance of the partnership business. Defendants, however, claim that a license was granted to them and the partnership permitting their use of the property. “[A] license is a mere personal or revocable privilege to perform an act or series of acts on the land of another.” Morning Call, Inc. v. Bell Atlantic Pennsylvania, Inc., 761 A.2d 139, 144 (Pa. Super. 2000) (citation omitted). “[Although] a license maybe created by a written instrument, it is usually created orally.” Kovach v. General Telephone Co., of Pennsylvania, 489 A.2d 883, 885 (Pa. Super. 1985) (citation omitted). “[A] license conveys no interest or estate in land.” Id. 489 A.2d at 885. However, a license may become irrevocable under the rules of estoppel and in those circumstances...similar to an easement.” Id. 761 A.2d at 144. “[T]he irrevocable license gives absolute rights, and protects the licensee in the enjoyment if those rights.” Id. 761 A.2d at 144 (citation omitted).

Here, Mary Lou Kerrick’s testimony at trial indicated that the property contained a family farm which has been in operation over 120 years. Mary Lou Kerrick wants the property to be maintained as a farm. She testified that she conveyed the property to Plaintiffs without reservation. Mary Lou Kerrick and her late husband, George E. Kerrick, started the construction business (“business”) with Alfred A. Kerrick and Marlies J. Kerrick and later, Kevin Kerrick joined the business. Plaintiff Stephen R. Slutter, Sr. was involved for a short time in the business as a carpenter’s helper. Mary Lou Kerrick indicated that the business was located in the vicinity of Kerrick’s home and the business used the sheds and the chicken coop to store construction items. Although the sheds and chicken coop were supposed to be used jointly by the farm and business, Maty Lou Kerrick indicated that the buildings were enlarged by the business for business purposes. Mary Lou Kerrick also stated that the flower garden is maintained by Marlies J. Kerrick.

“A license to use another’s land will become irrevocable where the licensee, in reliance upon it, treats his land in a way he would not have treated it except for the license, that is, by spending money for such changes as would prevent his being restored to his original position.” Philadelphia Regional Port Authority v. Approximately 1.22 Acres of Land (identified as Savage Yard) in Philadelphia, Pennsylvania, 2008 WL 1018324 (E.D. Pa. 2008) (citation omitted). “An owner who allows a use of the land to continue ‘under circumstances in which it is reasonable to foresee that the [user] will substantially change position’ is thereafter estopped from denying the existence of an easement in favor of the user.” Id. citing Restatement (Third) of Property (Servitudes) at §2.10(1). Accordingly, once irrevocability is established, the license gives “absolute rights, and protects the licensee in the enjoyment of those rights.” Id. Moreover, the successors-in-title take subject to the irrevocable license if they had notice of the license before the purchase. Kovach v. General Telephone Co. of Pennsylvania, 489 A.2d 883, 885 (Pa. Super. 1985) (citation omitted).

According to the testimony, Defendants use of the property was permissive. The business was started on the property by George E. Kerrick and Mary Lou Kerrick. Defendant Alfred A. Kerrick and Marlies J. Kerrick became involved in the business after his retirement from a local police department. During that time, the business operated from the property and used several buildings for storage. Mary Lou Kerrick and George E. Kerrick transferred their interest in the business to Kevin Kerrick, their grandson. The business maintained operations from the property and continued to use structures on the property. After George E. Kerrick passed away, the business continued the same operations as before with Mary Lou Kerrick’s permission. At some point, Mary Lou Kerrick became increasingly unhappy over a financial arrangement concerning the transfer of her interest in the business to Kevin Kerrick. Mary Lou Kerrick was upset over the management of the business and that at one point bankruptcy was suggested by Defendants. However, throughout this time, Mary Lou Kerrick continued to allow Defendants to use buildings and the property for their business. Mary Lou Kerrick was aware that the business was always operated from the property and she was aware of the expansion of the business, including the repairs and remodeling to buildings for business purposes. Defendants produced copies of invoices for several improvements made on the property.

In addition, Stephen R. Slutter was, at one time, an employee of the business, testified that he has lived on the property for 31 years. After he purchased the property, he requested Defendants to stop using two structures for business purposes. Mr. Slutter acknowledged that Defendants expended money to remodel some of the buildings for the business. He acknowledged that the business has been operating from the property since 1983 mainly in the same location near the Kerricks’ home. Defendants access the property from a lane which is set forth in their deed. Besides the use of buildings, Defendants park business vehicles on the property. Mr. Slutter also indicated that the business has only operated from its current location. Defendants removed some debris and moved a dumpster at Stephen R. Slutter’s request. In addition to the ejectment of Defendant from the property; Stephen R. Slutter requested fair rental value for Defendants’ use of the property.

Alfred A. Kerrick also testified at trial. He stated that at the time Kevin Kerrick j oined the business, he did not make a financial contribution Alfred A. Kerrick testified that he had a severance arrangement with his parents when their interest in the business was transferred to Kevin Kerrick which was paid monthly. In 2008, these payments stopped due to a decline in the housing industry and the business lost three major clients. Alfred A. Kerrick stated that he stopped burning household trash after Plaintiff acquired the property and the business has cleaned up construction debris and materials from the property. Alfred A. Kerrick agreed that the business may have been able to be relocated in the past; however, it would now create a financial burden on the business after significant expenditures of money for improvements. Alfred A. Kerrick began the business with his father and he relied upon maintaining the business at its current location due to the improvements. Alfred A. Kerrick said it is his father’s legacy and the property was used for both a farm and the construction business. Stephen R. Slutter asked Defendants to sign a lease for $100 per month. Alfred A. Kerrick would not agree to the lease since it required the business to stop using the lane to access the property. At hearing, Stephen R. Slutter testified that $300 would be a fair and reasonable amount for the Defendants’ use of the property.

After reviewing all the testimony presented at trial, we believe that an irrevocable license has been established by Defendants. First, the businesses’ use of the property was permissive from 1983 until Plaintiffs acquired the property in 2013. The licensee (business partnership) expended a significant amount of money to improve buildings on the property to suit the business needs. Mary Lou Kerrick allowed the improvements to be made on the property. Stephen R. Slutter testified that he has lived on the property for 31 years and he was aware that the business was spending money for such improvements. Since Mary Lou Kerrick allowed Defendants to substantially change their position by the expenditure of money on improvements, an irrevocable license resulted. It was reasonable for Mary Lou Kerrick to foresee that Defendants had substantially changed their positions by the improvements. These improvements began in 1987 when Mary Lou Kerrick’s husband was still involved in the business.

Given all the facts in this case, we believe that an irrevocable license was established and that the successors-in-title. Plaintiffs had actual notice of the license prior to the conveyance. Plaintiffs were aware that Defendants expended money to improve the area of the property being used by the business. Defendants, in reliance of indefinitely using the property, financed improvements to the property. Accordingly, we find an irrevocable license in favor of Defendants only to the portion of the property, i.e. chicken coop and overhang roof, which has been improved by the business as well as the parking area maintained and consistently used by the business. This area from the lane depicted in Plaintiffs’ Exhibit 6 shall extend 10 feet in a southerly direction beyond the overhang roof of the chicken coop and continue in a westerly direction for approximately 135’ to the common boundary of property, now or formerly, Robert A. Kessler, as depicted in the Final Minor Subdivision Plan of George and Mary Lou Kerrick dated March 11, 1997.

Additionally, we believe that Defendant Marlies J. Kerrick expended substantial money and labor to maintain the flower garden which is located adjacent to the Kerrick home. Ms. Kerrick initially placed the flower garden in its present location with permission of Mary Lou Kerrick. The flower garden is close to her home. There was no testimony submitted into evidence that anyone objected to the flower garden. We believe that it is reasonable to foresee that money must be expended to build and maintain the flower garden. Also, Defendant Marlies J. Kerrick has expended her time to build and maintain the flower garden. Consequently, we believe that an irrevocable license for the existing flower garden has been established in favor of Defendants.

We believe that the area where the flower garden is located, adjacent to the Kerrick’s house, has been sufficiently identified in Plaintiffs’ Exhibit 6 and Defendants shall be permitted a license to maintain the flower garden with a five foot perimeter around the flower garden. The license shall also include use of the lane to permit access to the property by Defendants. The use of the lane shall continue to the area of the chicken coop and overhang roof with the boundaries as described above.

Plaintiffs have also requested fair rental value of the area in an amount not less than $100 per month. StephenR. Slutter testified that a fair rental value is $300 per month, which we believe is a fair reasonable amount for the Defendants’ use of the property set forth herein. The irrevocable license granted herein shall continue so long as the flower garden is maintained by the Defendants and/or George E. Kerrick & Son construction remains a viable business.

CONCLUSIONS OF LAW

1. An irrevocable license in favor of Defendants existed between the parties.

2. Defendants’ have established by a preponderance of the evidence that they have an irrevocable license in the areas set forth herein.

3. Plaintiffs have established by a preponderance of the evidence that they are entitled to a judgment of ejectment against Defendants from their property except as specifically set forth herein.

4. Defendants have removed all offending personal property from the property except for the personal property in the chicken coop and parking areas.

5. Plaintiffs has established by a preponderance of the evidence that they are entitled to the amount of $300 per month for Defendants use of the property.

VERDICT

AND NOW, this 5th day of June 2015, it is ordered as follows:

1. The Court finds that Defendants have an irrevocable license in Plaintiffs’ property as set forth in the attached Adjudication.

2. Plaintiffs have established by a preponderance of the evidence that they are entitled to a judgment of ejectment against Defendants from their property except as specifically set forth in the attached Adjudication.

3. Plaintiffs have established by a preponderance of the evidence that they are entitled to $300 per month for Defendants use of the property, effective 30 days from notice of this Order.


source: Caselaw Access Project

author: REICHLEY, J.,

license: Public Domain

text:
    Nationstar Mortage LLC v. Martinez

      C.P. of Lehigh County,
    No. 2014-C-1584

      Jennifer Frechie, plaintiff.

      Ryan J. Durkin, defendants.
    June 10, 2015
   REICHLEY, J.,

Nationstar Mortgage, LLC, Plaintiff, filed a motion for summary judgment on March 31, 2015 in the within mortgage foreclosure action. On April 27, 2015, Angel and Maria Martinez, Defendants, by and through counsel, filed a response. On May 26, 2015, the Court heard oral argument on the motion. For the reasons set forth herein, Plaintiff’s motion for summary judgment is granted.

Factual and Procedural History

Defendants are the mortgagors and record owners of the real property located at 25 East Coleman Street, Allentown, Lehigh County, Pennsylvania. On October 31, 2006, Defendants executed and delivered a mortgage to Mortgage Electronic Registration Systems, Inc., as Nominee for K. Hovanian American Mortgage, LLC.

On August 28, 2012, the parties to the mortgage executed and entered into a Loan Modification Agreement, which Plaintiff attached to its complaint as Exhibit “C.” The agreement “amend[ed] and supplemented]...the Mortgage...dated the 31st of October, 2006.” (Complaint Exhibit C.) The Loan Modification Agreement was between Bank of America, N.A. and Defendants.

On April 23, 2014, Plaintiff acquired the mortgage from Bank of America. The assignment documentation, properly pled and attached to Plaintiff’s complaint, made no specific reference to the Loan Modification Agreement.

Plaintiff filed its complaint on May 14,2014. Defendants filed an Answer with New Matter on October 27, 2014, and Plaintiffs filed an Answer to Defendants’ New Matter on November 11, 2014.

Plaintiff filed a motion for summary judgment on March 31, 2015. Defendants filed a response on April 27, 2015. On May 26,2015, the Court heard oral argument on the motion, after which the Court took the matter under advisement.

This Opinion follows.

Discussion

In passing on a motion for summary judgment, the Court must examine the record in a light most favorable to the non-moving party and resolve any doubt in his favor. Swartley v. Hoffner, 734 A.2d 915 (Pa. Super. 1999). The non-moving party may not rest on averments in its pleadings and must demonstrate by evidence that there exists a genuine issue for trial. Younginger v. Heckler, 410 A.2d 340, 342 (Pa. Super. 1979). If there is no response, and summary judgment is otherwise appropriate, it may be entered against him. Id. In the case of a mortgage foreclosure action, pretrial disposition is proper if there is no genuine dispute that: (1) the recorded mortgage is in the specified amount, (2) the mortgage is in default, and (3) the mortgagor failed to pay interest on the obligation. Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa. Super 1998) (citing Landau v. Western Pennsylvania National Bank, 282 A.2d 335, 340 (Pa. 1971)). This is true even if the mortgagor has not admitted the specific amount of indebtedness in their pleadings. Id.

In this case, the threshold requirements for summary judgment in mortgage foreclosure are satisfied. There is no dispute that the recorded mortgage is in the amount specified, that Defendant is in default, and that she failed to pay interest on the obligation.

In Defendants’ response to Plaintiff’s Motion for Summary Judgment, as well as in Defendants ’ New Matter, Defendants challenge Plaintiff’s standing to prosecute the instant mortgage action.

The Pennsylvania Rules of Civil Procedure provide, in relevant part, that “[ejxcept as otherwise provided...all actions shall be prosecuted by and in the name of the real party in interest, without distinction between contracts under seal and parol contracts.” Pa.R.C.P. 2002(a). A real party in interest is a “[pjerson who will be entitled to benefits of action if successful.... [A] party is a real party in interest if it has the legal right under the applicable substantive law to enforce the claim in question.” US Bank N.A. v. Mallory, 982 A.2d 986, 993-94 (Pa. Super.2009) (quoting Cole v. Boyd, 719 A.2d 311, 312-313 (Pa. Super. 1998).

Where a mortgage is assigned, the real party in interest with standing to sue is the assignee of the mortgage. Id.; see also Brown v. Esposito, 42 A.2d 93 (Pa. Super. 1945) (indicating assignee may sue as real party in interest). In assessing a party’s standing to pursue amortgage foreclosure action, Pennsylvania courts recognize that an assignee stands in the shoes of the assignor and assumes the rights of the assignor. Mallory, 982 A.2d at 994 (citing American Society For Testing & Materials v. Corrpro Companies, Inc., 292 F.Supp.2d 713 (E.D.2003)). Thus, stated more plainly, the person or business entity in possession of a note has standing to enforce it. See JP Morgan Chase Bank N.A. v. Murray, 63 A.3d 1258 (Pa. Super. 2013).

Defendants’ argument does not challenge Plaintiff’s standing as assignee to enforce the mortgage. Instead, Defendants contend the assignment made no reference to the Loan Modification Agreement. Accordingly, Defendants argue that Plaintiff is without standing to enforce the terms of the Loan Modification Agreement, which is the operative agreement for purposes of assessing the rights and responsibilities of the respective parties in reference to the subject property.

Defendants cite no law in support of the contention that a Loan Modification Agreement must be separately assigned or otherwise specifically designated in assignment documentation in order for an assignee to have standing to seek to enforce it. Pennsylvania courts have not addressed this issue. The applicable Rule of Civil Procedure requires only that a Plaintiff plead “the parties to and the date of the mortgage, and of any assignments, and a statement of the place of record of the mortgage and assignments.” Pa.R.C.P. 1147(a)(1).

The parties’ Loan Modification Agreement specifically provides that it “amends and supplements” the parties’ mortgage. It alters certain terms of the underlying mortgage. However, it specifically leaves many of the terms of the original mortgage in place. (See Complaint Exhibit C, ¶ 4(a)-(b).) The April 23, 2014 assignment of the mortgage to Plaintiff functioned as an assignment ofthe mortgage as it then existed because the original mortgage was a nullity by action of the Loan Modification Agreement. Absent an agreement to the contrary, a Loan Modification Agreement changes the terms of the mortgage agreement without changing its status. This holding is consistent with other jurisdictions. See, e.g., CitiMortgage, Inc. v. Davis, 2014-Ohio-3292, ¶ 16 (loan modification agreement does not change the status of the parties without specific provision to that effect).

This holding is also consistent with longstanding contract principles in the Commonwealth. Where two parties enter into a contract and subsequently modify its terms, the “modification does not displace a prior valid contract; rather, the new contract acts as a substitute for the original contract, but only to the extent that it alters it. The original contract may be abrogated in part, with the residue remaining intact.” Melat v. Melat, 602 A.2d 380, 385 (Pa. Super. 1992) (citing Knight v. Gulf Refining Co., 166 A. 880, 881 (Pa. 1933); Egyptian Sand Real Estate, Inc. v. Polony, 294 A.2d 799, 803 (Pa. Super. 1972)). Based on this principle, the impact of a Loan Modification Agreement is to act as a substitute for the original mortgage to the extent that it alters it. It follows that where the mortgage is assigned to an assignee, the mortgage as amended by any modification agreements into which the parties in interest entered is the version of the mortgage that is assigned. It is therefore unnecessary to specifically assign a Loan Modification Agreement alongside the assignment of a mortgage because the terms of the modification are already integrated into the original mortgage by way of substitution.

Conclusion

Because the Defendants entered into aLoanModification Agreement with Plaintiff’s predecessor-in-interest and the modified mortgage was subsequently assigned to Plaintiff, the Court finds that Plaintiff has standing as the real party in interest to enforce the mortgage as amended by the Loan Modification Agreement notwithstanding the absence of any specific reference to the assignment of the agreement independent of the assignment of the mortgage. Accordingly, summary judgment is GRANTED in favor of Plaintiff.

ORDER

AND NOW, this day of June, 2015, upon consideration of Plaintiff’s Motion for Summary Judgment, filed March 31, 2015, and after argument conducted thereon on May 26, 2015 at which time both parties were represented by counsel,

IT IS ORDERED Plaintiff’s motion is GRANTED for the reasons set forth in the accompanying Memorandum Opinion. Judgment in rent is hereby granted in favor of Nationstar Mortgage, LLC and against Angel L. Martinez and Maria C. Martinez in the amount of $256,584.31 plus interest and fees from May 14, 2014 onward, and for foreclosure and sale of the mortgaged premises.


author: COX, J.,

text:
    LaCivita v. Town & Country Bar and Grill

      C.P. of Lawrence County,
    No. 10227 of 2014

      Susan M. Papa, for plaintiff.

      Irving M. Portnoy and Carmen F. Lamancusa, for defendant.
    June 11, 2015
   COX, J.,

Before the Court for disposition are the Preliminary Objections filed on behalf of the defendant Town & Country Bar and Grill a/k/a Town & Country Lounge, 2550 Benjamin Franklin Highway, Edinburg, PA 16116, which argue that the Plaintiff’s Complaint lacked specificity and the Complaint should be dismissed as the Plaintiff has failed to join indispensable parties to the current case.

On January 29, 2015, the plaintiff Melissa Louise LaCivita filed a Complaint, which averred the following facts: On March 28 and March 29, 2012, the Defendant’s employees provided alcoholic beverages to James Karpik and R.J. Crawford at Town & Country Bar and Grill (hereinafter “Town & Country”) when they were visibly intoxicated. On March 29, 2012, the Plaintiff was a passenger in a vehicle that was owned and operated by Mr. Karpik, who drove in a westerly direction on State Route 422. At the same time, Mr. Crawford operated a vehicle owned by Kandice Karpik also in a westerly direction on State Route 422. At 2:38 a.m., Mr. Karpik attempted to maneuver his vehicle toward the center lane of State Route 422 when it was struck by the vehicle being operated by Mr. Crawford, who attempted to pass Mr. Karpik’s vehicle. Mr. Karpik and Mr. Crawford were operating the motor vehicles after consuming alcoholic beverages at Town & Country, which, Plaintiff claims, rendered them incapable of safely operating the same.

On March 16, 2015, the Defendant filed Preliminary Objections asserting that the Plaintiff’s Complaint lacks specificity as there are no averments concerning the manner in which Mr. Karpik and Mr. Crawford were operating the vehicles or how the alleged furnishing of alcoholic beverages by the Defendant’s employees caused them to negligently operate the vehicles. Moreover, the Defendant argues that the Plaintiff’s Complaint should be dismissed as the Plaintiff has failed to join Mr. Karpik and Mr. Crawford, who are indispensable parties, which deprived this Court of jurisdiction over the current case.

First, the Court will address the Defendant’s Preliminary Objection concerning lack of specificity of the Plaintiff’s Complaint.

The specificity of a pleading is governed by Pa.R.C.P. No. 1019, which states “(a) The material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Pennsylvania is a fact-pleading jurisdiction, which requires the plaintiff to provide the defendant with notice of what the plaintiff’s claim is and the grounds for the claim. Unified Sportsmen of Pennsylvania v. Pennsylvania Game Com’n (PGC), 950 A.2d 1120, 1134 (Pa. Cmwlth. 2008) (quoting Sevin v. Kelshaw, 417 Pa. Super. 1, 611 A.2d 1232, 1235 (1992)). Additionally, the plaintiff must summarize the facts essential to support the claims. Id. “The rule requires a plaintiff to plead all the facts that he must prove in order to achieve recovery on the alleged cause of action. The pleading must be sufficiently specific so that the defending party will know how to prepare his defense.” Commonwealth ex rel. Pappert v. TAP Pharmaceuticals Products, Inc., 868 A.2d 624, 635 (Pa. Cmwlth. 2005) (citing Department of Transportation v. Shipley Humble Oil Co., 29 Pa. Cmwlth. 171, 370 A.2d 438 (1977)). The purpose behind the rules of pleading is to enable parties to ascertain, by utilizing their own professional discretion, the claims and defenses that are asserted in the case. Krajsa v. Keypunch, Inc., 424 Pa. Super. 230, 236, 622 A.2d 355, 357 (1993). “The pleadings must adequately explain the nature of the claim to the opposing party so as to permit him to prepare a defense, and they must be sufficient to convince the court that the averments are not merely subterfuge.” In re Estate of Schofield, 505 Pa. 95, 477 A.2d 473 (1984) (citing Sokoloff v. Stride, 404 Pa. 343, 172 A.2d 302 (1961); Hornsby v. Lohmeyer, 364 Pa. 271, 72 A.2d 294 (1950); Rice v. Braden, 243 Pa. 141, 89 A. 877 (1914)). “A more specific complaint will not be required where the details requested are evidentiary in nature.” Hock v. L. B. Smith, Inc., 69 Pa. D. & C. 2d 420, 423 (Pa. Com. PI. Columbia 1974) (citing General Acceptance Corp. v. Wilson, 40 Northumb. L. N. 54).

In Connor v. Allegheny General Hospital, 501 Pa. 306, 311, 461 A.2d 600, 603 fn. 3 (1983) (citing Arner v. Sokol, 373 Pa. 587, 592-593, 96 A.2d 854, 856 (1953); King v. Brillhart, 271 Pa. 301, 114 A. 515, 516 (1921)), the Court determined that an averment stating, “otherwise fail[ed] to use due care and caution under the circumstances,” lacked specificity and the defendant could have filed a motion to strike off that statement, but chose not to do so. However, a complaint is sufficiently specific if the whole complaint contains material facts which set forth a cause of action. Lipinsky v. Graham, 88 Pa. D. & C. 156, 158 (Pa. Com. PI. Mercer 1954). “A more specific complaint will not be required where the details requested are evidentiary in nature.” Hock v. L. B. Smith, Inc., 69 Pa. D. & C. 2d 420, 423 (Pa. Com. PL Columbia 1974) (citing General Acceptance Corp. v. Wilson, 40 Northumb. L. N. 54).

The Plaintiff’s Complaint fails to set forth any averments establishing the activities of Mr. Karpik and Mr. Crawford which caused the motor vehicle accident other than Mr. Crawford attempted to pass Mr. Karpik. There is no indication that the drivers were operating the vehicles in an erratic manner, the passing was improper or, that Mr. Karpik improperly entered the center lane, nor are there allegations that their alleged intoxication caused them to place the Plaintiff at risk. The Complaint is also devoid of any averments asserting that the drivers were speeding, failed to utilize turn signals, or that the area was a passing or no-passing zone. In addition, the Plaintiff failed to adequately describe the location of the vehicles and the events that culminated in the vehicles colliding. The Defendant needs those facts so it can adequately prepare its defense to the Dram Shop Act claim being asserted by the Plaintiff as the drivers’ conduct may demonstrate that they either were or were not visibly intoxicated at the time the Defendant’s employees provided them alcoholic beverages. The Plaintiff failed to aver any details concerning Mr. Karpik and Mr. Crawford’s actions while in Town & Country which indicated they were visibly intoxicated as required to establish a claim under the Dram Shop Act. Moreover, the lack of specific averments in the Plaintiff’s Complaint may permit impermissible amplification or alteration of the Plaintiff’s claims as the litigation proceeds, which is not permitted pursuant to the Connor case. Therefore, the Defendant’s First Preliminary Objection concerning lack of specificity is sustained and the Plaintiff is granted leave to amend her Complaint to provide more specific averments.

The Defendant also contends that the Plaintiff’s Complaint should be dismissed as she failed to join Mr. Karpik and Mr. Crawford, who are indispensable parties, to the current litigation, which deprives the Court of jurisdiction over this matter.

“In Pennsylvania, an indispensable party is one whose rights are so directly connected with and affected by litigation that he must be a party of record to protect such rights, and his absence renders any order or decree of court null and void for want of jurisdiction.” Scherbick v. Community College of Allegheny County, 479 Pa. 216, 220, 387 A.2d 1301, 1303(1978) (citing Pocono Pines Corp. v. Pa. Game Com., Com. of Pa., 464 Pa. 17, 345 A.2d 709 (1975)). A court must determine whether, in the absence of the party, justice can be done in regards to the nature of the claims and the requested remedy. Jacob v. Shultz-Jacob, 923 A.2d 473, 480 (Pa. Super. 2007) (citing Hubert v. Greenwald, 743 A.2d 977, 979-980 (Pa. Super. 1999)). The Court must consider the following factors: “1) whether the party has a right or interest related to the claim; 2) the nature of the right or interest; 3) whether the right or interest is essential to the merits; and 4) whether justice can prevail without violating due process rights of the absent party.” Fiore v. Oakwood Plaza Shopping Center, Inc., 401 Pa. Super. 446, 462, 585 A.2d 1012, 1020 (1991) (citing Waksmunski v. Delginis, 391 Pa. Super. 37, 44, 570 A.2d 88, 92 (1990)). A party is not indispensable where complete relief can be accorded among those parties already in the action and the party’s absence will not impede his or her interest nor will the defendants be placed at risk for incurring multiple obligations. Id.

In the current case, the Plaintiff has filed suit against the Defendant arising from a motor vehicle accident involving vehicles being operated by Mr. Karpik and Mr. Crawford as the accident occurred after the two drivers were served alcoholic beverages at Town & Country. The Plaintiff did not join Mr. Karpik and Mr. Crawford as parties to the current litigation, which prompted the Defendant to file a preliminary objection for lack of jurisdiction based upon the Plaintiff’s failure to join indispensable parties. It is incumbent upon the Court to examine whether Mr. Karpik and Mr. Crawford are indispensable parties to the current suit. It does not appear as though Mr. Karpik and Mr. Crawford have an interest in the current litigation as the Plaintiff is seeking to recover damages against the Defendant for violations of the Dram Shop Act and the Plaintiff is not seeking to recover from Mr. Karpik or Mr. Crawford for their alleged negligent operation of the motor vehicles. It must be noted that the Plaintiff is required to demonstrate that the alleged violation of the Dram Shop Act proximately caused her injuries, which includes demonstrating that Mr. Karpik and Mr. Crawford was visibly intoxicated and that intoxication led to the accident. See Fandozzi v. Kelly Hotel, Inc., 711 A.2d 524, 525-526 (Pa. Super. 1998). However, this does not affect the rights of Mr. Karpik or Mr. Crawford as they would not be bound by any determination or finding that they were negligent by ingesting alcohol and driving while intoxicated as they are not parties to this suit. Any finding of their negligent operation of the vehicles would only be utilized to demonstrate the alleged violation of the Dram Shop Act by the Defendant. As such, Mr. Karpik and Mr. Crawford’s interests will not be adversely affected by their lack of participation in the current litigation.

The Defendant contends that it will be prejudiced by the absence of Mr. Karpik and Mr. Crawford in its ability to assert a defense of comparative negligence. The Plaintiff rebuts that assertion by citing to 42 Pa.C.S.A. § 7102(a.2), which states “the question of liability of any defendant or other person who has entered into a release with the plaintiff with respect to the action and who is not a party shall be transmitted to the trier of fact upon appropriate requests and proofs by any party.” That section is inapplicable to the current matter as the Plaintiff has failed to establish that she entered into a release with Mr. Karpik and Mr. Crawford. Notwithstanding the failure to establish that releases have been executed, the Court finds that the Defendant will retain the ability to present a defense of comparative negligence, if it is able to provide the Court with the appropriate requests and proofs similar to the procedure in 42 Pa.C.S.A. § 7102(a.2). Hence, the failure to join Mr. Karpik and Mr. Crawford does not materially alter any parties’ ability to protect its rights and justice will be permitted to prevail in the absence of Mr. Karpik and Mr. Crawford.

For the reasons set forth in this Opinion, the Defendant’s Preliminary Objections are sustained in part and overruled in part. The Defendant’s Preliminary Objection for lack of specificity is sustained and its Preliminary Objection for failure to join indispensable parties is overruled.

ORDER OF COURT

NOW THIS 11th day of June, 2015, this case was before the Court on May 26, 2015, for oral argument on the Preliminary Objections filed by the Defendant, both parties appeared through counsel, the Plaintiff, Melissa Louise LaCivita, represented through counsel, Susan M. Papa, Esquire and the Defendant Town & Country Bar and Grill a/k/a Town & Country Lounge, represented through counsel, Irving M. Portnoy, Esquire and after consideration of the argument and briefs presented and submitted by counsel and a complete and thorough review of the applicable record, the Court enters the following Order and it is hereby ORDERED, ADJUDGED and DECREED as follows:

1. In accordance with the attached Opinion, the Preliminary Objections filed by the Defendant are hereby SUSTAINED in part and OVERRULED in part.

2. The Preliminary Objection for Lack of Specificity is hereby SUSTAINED.

3. The Preliminary Objection for Failure To Join Indispensible Parties is hereby OVERRULED.

4. The Plaintiff shall file an Amended Complaint within twenty (20) days after date of receipt of this Order of Court.

5. Upon receipt of the Amended Complaint the Defendant can choose to file new Preliminary Objections or if no Preliminary Objections are filed, Defendant shall file an Answer within twenty (20) days after the filing of the Amended Complaint.

6. The Prothonotary is directed to serve a copy of this Order of Court upon counsel of record, Susan M. Papa, Esquire, Irving M. Portnoy, Esquire and Carmen F. Lamancusa, Esquire.


author: STEINBERG, J.,

text:
    Commonwealth v. Bartholomew

      C.P. of Lehigh County,
    No. CR-599/2014

      Charles Gallagher, for Commonwealth.

      Ronald Creazzo, for defendant.
    June 19, 2015
   STEINBERG, J.,

The defendant, Scott Bartholomew, is charged with Theft by Unlawful Taking or Disposition, Theft by Failure to Make Required Disposition of Funds Received, Receiving Stolen Property, and Dealing in Proceeds of Unlawful Activities. It is alleged that the defendant misappropriated large sums of money from his elderly uncle, Wilbur Stiles.

On April 10, 2014, counsel for the defendant filed an “Omnibus Pre-Trial Motion For Relief,” which contained seventy-seven (77) paragraphs, and was divided into fifteen (15) separate subsections. Counsel also filed an “Addendum To Omnibus Pre-Trial Motion For Relief’ on February 24, 2015. Hearings were held on those motions, which could be characterized broadly as claims relating to the following: (1) Motion to Dismiss — Statute of Limitations; (2) Habeas Corpus; (3) Motion To Suppress Physical Evidence; (4) Motion To Suppress Physical Evidence — Chain of Custody; (5) Motion To Suppress Statements; (6) Motion To Suppress Information In Toto; (7) Motion In Limine; (8) Lack of Jurisdiction — Detective Renee Castellani; (9) Lack of Jurisdiction — transactions outside Commonwealth of Pennsylvania. Many of the claims were resolved during hearings held in this matter, and this Opinion will only address the Motion To Suppress Statements, Habeas Corpus, and Statute of Limitations claims.

I. Motion To Suppress Statements

A. Statements to Detective Castellani

Detective Renee Castellani is employed by the Lackawanna County District Attorney’s Office, and is assigned to the Elder Abuse Unit of the Special Victims Division. During the month of July, 2012, she received a referral from their Area Agency on Aging pertaining to Wilbur Stiles. On July 30, 2012, as part of her investigation, the defendant was interviewed at the Lackawanna District Attorney’s Office. The defendant was advised of his Miranda rights and he executed a Rights Warning and Waiver form. The defendant told Detective Castellani that he moved in with his uncle, Wilbur Stiles, in 2003, due to his uncle’s health issues. The same year, they met with a lawyer and the defendant was named power of attorney for Wilbur Stiles. The defendant claimed that he did not use the power of attorney until 2008, when his uncle was having difficulty writing checks. He told Detective Castellani that he did not read the power of attorney and failed to comply with the agreement. In that regard, the defendant admitted that Mr. Stiles’ money was used to support both himself and his wife.

The interview with the defendant lasted approximately forty-five (45) minutes. At the conclusion of the interview, the defendant departed without arrest.

B. Statements to Lieutenant Sorrentino

On December 10, 2012, Lieutenant Sorrentino spoke to the defendant about Joan Bartholomew, the defendant’s mother, who was a resident at Cedarbrook. The interview took place at the South Whitehall Police Headquarters and lasted approximately 30 — 40 minutes.

During the discussion, the defendant told Lieutenant Sorrentino that he was also the power of attorney for Wilbur Stiles. Lieutenant Sorrentino knew nothing about Wilbur Stiles until the defendant mentioned him in their discussion. Their conversation concerning Wilbur Stiles was limited and relatively innocuous, and at its conclusion, the defendant departed the police station.

C. Discussion

The defendant contends that his interview with Detective Castellani was not preceded by Miranda warnings. In fact, Detective Castellani testified that the defendant was advised of his Miranda rights and executed a Rights Warning and Waiver document. No evidence to the contrary was presented at the suppression hearing.

Lieutenant Sorrentino, during his interview with the defendant, did not advise him of his Miranda warnings. He was not required to do so because the defendant was not subject to custodial interrogation. Miranda warnings are only required as part of a custodial interrogation. Commonwealth v. Housman, 986 A.2d 822, 839 (Pa. 2009). Custodial interrogation has been defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his [or her] freedom of action in any significant way.” Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super. 1999); see also Commonwealth v. Gonzalez, 979 A.2d 879, 887-888 (Pa. Super. 2009) quoting Miranda v. Arizona, 384 U.S. 436, 444 (1996). The United States Supreme Court has stated the “ultimate inquiry is...whether there [was] a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” Commonwealth v. Boczkowski, 846 A.2d 75,90 (Pa. 2004) quoting Stansbury v. California, 511 U.S. 318, 322 (1994).

“The standard for determining whether an encounter with the police is deemed ‘custodial’ ... is an objective one based on a totality of the circumstances with due consideration given to the reasonable impression conveyed to the person interrogated.” Commonwealth v. Johnson, 42 A.3d 1017, 1028 (Pa. 2012); Commonwealth v. Busch, 713 A.2d 97, 99 (Pa. Super. 1998). It was explained in further detail in Stansbury, “that the initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.” Stansbury v. California, 511 U.S. at 322-323. In Commonwealth v. Baker, 24 A.3d 1006, 1019-1020 (Pa. Super. 2011) citing Commonwealth v. Mannion, 725 A.2d at 200, the following factors were identified to determine under the totality of the circumstances whether a detention has become so coercive to constitute the functional equivalent of an arrest:

[T]he basis for the detention; its length; its location; whether the suspect was transported against his or her will, how far, and why; whether restraints were used; whether the law enforcement officer showed, threatened or used force; and the investigative methods employed to confirm or dispel suspicions.

Id.; see also Commonwealth v. Williams, 941 A.2d 14, 30 (Pa. Super. 2008); see also Commonwealth v. Watkins, 750 A.2d 308, 313 (Pa. Super. 2000).

Finally, in Howes v. Fields, 132 S.Ct. 1181, 1189 (2012) it was similarly explained:

As used in our Miranda case law, ‘custody’ is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion. In determining whether a person is in custody in this sense, the initial step is to ascertain whether, in light of the objective circumstances of the interrogation a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave. And in order to determine how a suspect would have gauge [d] his freedom of movement courts must examine all of the circumstances surrounding the interrogation. Relevant factors include the location of the questioning, its duration, statements made during the interview, the presence of absence of physical restraints during the questioning, and the release of the interviewee at the end of the questioning.

Id. (internal quotations and citations omitted).

In the case at hand, both interviews with the defendant lasted less than an hour and ended with the defendant’s departure from both the District Attorney’s Office and the South Whitehall Police Department. He arrived and departed on his own, without any interference by law enforcement. No handcuffs or other physical restraints were used during the interviews. See Commonwealth v. Gibson, 720 A.2d 473, 480 (Pa. 1998)(Statements during interview were not the product of custodial interrogation where defendant agreed to go to police station and talk to officers, and drove to the police station; defendant was not restrained in any way nor was he subjected to force or the threat of force; the door to interview was not locked); Commonwealth v. Hunzer, 868 A.2d 498 (Pa. Super. 2005) (The defendant, who voluntarily appeared at the police station, was not subject to custodial interrogation even though he was provided with Miranda warnings).

Lieutenant Sorrentino’s interview with the defendant concerned the defendant’s mother, Joan Bartholomew, not Wilbur Stiles. No investigation was being conducted by him regarding Wilbur Stiles until after the interview. The defendant was asked to come to the police station to discuss “current events with Cedarbrook and his mother.” He was told that he was not under arrest, and was free to leave. Lieutenant Sorrentino treated it as an “informational session” and not an interrogation. Nothing presented supports the claim that the defendant was the subject of a custodial interrogation requiring Miranda warnings.

Finally, Detective Castellani’s decision to provide Miranda warnings did not transform her interview with the defendant into a custodial interrogation. Her cautious approach to conducting interviews does not support the conclusion that the defendant was in custody. See Commonwealth v. Lark, 477 A.2d 857, 861 (Pa. 1984). Furthermore, the custodial interrogation analysis as it pertains to the statements provided to Detective Castellani is superfluous. Any statements secured after administering Miranda rights are admissible provided the accused’s right to remain silent and right to counsel have been explained, and the accused has knowingly and voluntarily waived those rights. Commonwealth v. Davis, 861 A.2d 310, 317 (Pa. Super. 2004) citing Commonwealth v. Jones, 683 A.2d 1181, 1189 (Pa. 1996). The evidence supports Detective Castellani’s administration of the Miranda warnings, and the defendant’s voluntary relinquishment of those rights.

II. Motion To Dismiss (Habeas Corpus)

The defendant contends that the evidence “adduced at the Preliminary Hearing did not establish the charged offense[s],” and the charges should be dismissed. A variety of reasons are alleged by the defense to support their motion, including the following: (1) The defendant acted under a “lawful and valid General Durable Power of Attorney executed by Wilbur Stiles in 2003”; (2) The Debit/Credit Card usage does not amount to $83,972.60; (3) The redeemed saving bonds were deposited in Wilbur Stiles account; (4) No evidence was presented that Wilbur Stiles gave the defendant $6,050.00 to pay for Cedarbrook services.”

It is well-settled that a petition for writ of habeas corpus is the proper means for testing a pretrial finding that the Commonwealth has sufficient evidence to establish aprima facie case. Commonwealth v. Black, 108 A.3d 70, 77 (Pa. Super. 2015); Commonwealth v. Hendricks, 927 A.2d 289, 290-291 (Pa. Super. 2007). However, the Commonwealth, at this stage of the proceedings, is not required to establish the defendant’s guilt beyond a reasonable doubt. Instead, it is only required to present a prima facie showing that a crime has been committed and that the accused is the one who committed it. Commonwealth v. Fountain, 811 A.2d 24, 25-26 (Pa. Super. 2002); Commonwealth v. Wojdak, 466 A.2d 991, 1000 (Pa. 1983). It has been frequently explained:

The Commonwealth must show sufficient probable cause that the defendant committed the offense, and the evidence should be such that if presented at trial, and accepted as true, the judge would be warranted in allowing the case to go to the jury. When deciding whether a prima facie case was established, the evidence [must be viewed] in the light most favorable to the Commonwealth, and all reasonable inferences based on that evidence which could support a guilty verdict [must be considered].

Commonwealth v. Barnes, 14 A.3d 128, 130 (Pa. Super. 2011) quoting Commonwealth v. James, 863 A.2d 1179, 1182 (Pa. Super. 2004)(en banc). See also Commonwealth v. McCullough, 86 A.3d 901, 905 (Pa. Super. 2014)(“[T]he prima facie case merely requires evidence of the existence of each element of the crime charged”); Commonwealth v. Williams, 911 A.2d 548, 550-551 (Pa. Super. 2006). Additionally, the Commonwealth in a habeas corpus proceeding has the “opportunity to present additional evidence to establish that the defendant has committed the elements of the offense[s] charged...” Black, 108 A.3d at 77.

In the present case, the testimony from the preliminary hearing, including the preserved testimony of Wilbur Stiles, and the testimony from the habeas corpus hearing, revealed that Wilbur Stiles, who is currently 95 years old, was a wildlife biologist who was employed by the Department of the Interior. He also served in the Air Force during World War II. During his lifetime, he accumulated substantial savings and owned ahorne at 4658 Shuler Street, Allentown, Pennsylvania. Following the appointment of the defendant as his power of attorney in 2003, his savings dwindled, his residence was put into foreclosure, and Mr. Stiles found himself in a nursing facility. A report prepared by the Institute on Protective Services, which is a collaborative effort between the Department of Aging and Temple University, disclosed that after the defendant was appointed power of attorney, he used the vast amount of Wilbur Stiles’ funds for his own benefit. He even neglected to pay for the care of Wilbur Stiles at the Gino Merli Veterans Home, even though funds of Mr. Stiles were readily available to do so. Instead, the defendant converted those funds to his own use.

The defendant was removed as power of attorney effective February 14, 2012. Attorney Sarah Andrew, who specializes in elder law, represented Lynda Allegra, a relative of Mr. Stiles, and filed a petition with the Orphans Court of Lehigh County to compel the defendant “to produce an accounting of the actions he had taken under Power of Attorney for Wilbur Stiles.” The defendant, who was ordered to file an accounting by Judge Brian Johnson on October 23, 2012, failed to do so, and was held in contempt of court.

Attorney Andrew filed a “First Amended Petition To Compel An Accounting...” on August 13, 2013, which in detail outlines the defendant’s self-dealing with respect to Mr. Stiles assets. For example, the home at 4658 Shuler Street was owned by Mr. Stiles as of June 21,1985 without any encumbrances until the defendant was appointed power of attorney. Three separate mortgages encumbered the property since 2005, two of which totaling $229,846.00 were in arrears on the date Attorney Andrew filed her petition. The mortgages had not been paid since 2011.

On December 17, 2014, Judge Johnson, in his Adjudication held “that during his tenure as agent under power of attorney for Wilbur Stiles[,] Scott Bartholomew impermissibly comingled his principal’s funds with his own, failed to keep accurate records and expended the funds of Wilbur Stiles for the benefit of himself or persons other than Wilbur Stiles...” A surcharge was imposed on the defendant in the amount of $238,142.51.

The report of Certified Fraud Examiner Linda Mill, with its attachments, is voluminous, and it would be impossible in this Opinion to detail all of her findings. However, it was her expert opinion that $351,677.27 was “removed from Mr. Stiles’ accounts by Scott Bartholomew without direct benefit to Wilbur Stiles.” For example, one of the encumbrances on Mr. Stiles’ home was for $150,000.00, and was used for items including a Harley Davison Motorcycle, 2000 Jeep Wrangler, trailer and trailer graphics. An additional $52,000.00 was deposited into the defendant’s Wachovia account. None of the purchased items would seem to fit Mr. Stiles’ lifestyle. On 583 occasions the defendant “wrote checks, initiated debit transactions or conducted ATM withdrawals against Wilbur Stiles Wachovia (Wells Fargo) account” in the amount of $163,321.65. It would appear that from February 2006 until June 2012, $326,529.58 was deposited into Mr. Stiles’ account. The balance of Mr. Stiles’ account in June, 2012 was zero. The defendant also issued checks to himself or made purchases for his benefit from the Wachovia (Wells Fargo) credit line in the sum of $118,970.47. He also used $46,814.90 in funds from “the Wachovia (Wells Fargo) term loan to recover his tractor-trailer truck after it was re-possessed. All payments for this term loan were made from Wilbur Stiles bank account.” In that regard, Wilbur Stiles’ saving bonds in the amount of $43,854.52 were redeemed and deposited into his account. Those funds were then used to cover the truck loan payments and the defendant’s monthly spending. Fraud Examiner Mill only found $8,429.75 deposited into Mr. Stiles’ account by the defendant. Finally, it appears that Mr. Stiles’ annuity account with the Hartford was closed at the end of 2008. Although the funds were deposited in his checking account, over the next three (3) weeks, transactions in Maine, New Hampshire, Massachusetts, and Connecticut depleted that account without benefiting Mr. Stiles.

The defendant, during his interview with Detective Castellani, indicated that he began using the Power of Attorney in 2008, when his uncle was having difficulty writing out his checks. He admitted to Detective Castellani that “he did not comply with the Power of Attorney agreement that he signed regarding exercising said powers for the benefit [of the] principal, exercising reasonable caution and prudence, and keeping full and accurate records of all actions, receipts, and disbursements on behalf of the principal.” His “excuse was that he did not read the Power of Attorney documents. [He] was unemployed and not collecting any money. All bills and necessities were funded by the victim.”

The testimony of Mr. Stiles confirmed many of the findings of the certified fraud examiner. He testified that transactions made by the defendant from his accounts at Bamhouse Village, Dover International Speedway, Game Stop, Pocono Music Exchange, and many others were not authorized. He was somewhat befuddled about the status of his home, but believed it was “seized” due to debts incurred by the defendant. His savings bonds were also taken by the defendant from his safe deposit box in the bank, and cashed in without his knowledge or permission.

The “General Durable Power Of Attorney,” which is dated October 21, 2003, not only was purportedly signed by Mr. Stiles, but also has an “Acknowledgment” signed by the defendant. This “Acknowledgment” required the defendant, as power of attorney for Mr. Stiles, to do the following: (1) “...[E]xercise the powers for the benefit of the principal”; (2) “...[K]eep the assets of the principal separate from my assets”; (3) “...[Ejxercise reasonable caution and prudence”; (4) “...[Kjeep a full and accurate record of all actions, receipts and disbursements on behalf of the principal.” A review of the evidence permits the conclusion that the defendant failed to perform his fiduciary responsibilities. See Chaput v. Cianci, 2015 WL 1827496 * 3 (D. Virgin Islands)(“[A] durable power of attorney created a fiduciary relationship, which included the duty of loyalty) (collecting cases); Pennewill v. Harris, 2011 WL 691618 (Del. Ch.) * 3 (“An attorney-in-fact serves as a fiduciaiy for his principal. An attomey-in-fact who uses the power given to him by the principal to transfer assets to himself has committed improper self-dealing, absent the voluntary and knowing consent of the principal”).

Here, the defendant is charged with various theft related offenses, not a breach of a fiduciary duty. However, a power-of-attomey, neither explicitly nor implicitly, authorizes the “power holder” to steal from his grantor.” Boyce v. Fernandes, 77 F.3d 946, 950 (7th Cir. 1996) (collecting cases); see also State v. Knopp, 2014 WL 645230 (Wash. App. Div. 1); State v. Thompson, 223 P.3d 1165 (2009); State v. Georgeoff, 2002 WL 58003 (Ohio app. 9 Dist.). Furthermore, a theft can occur even though initial control of the property was authorized. People v. Stell, 320 P.3d 382, 385 (2014)(Power of attorney did not preclude prosecution for theft). In State v. Kennedy, 296 A.2d 65, 66-67 (1972) it was explained that a power of attorney does not operate as a shield from prosecution. Instead, it was explained that “a ‘power of attorney is not an instrument of gift but authorization [] to act for principal... [T]he instrument did not authorize the agent to make off with the principal’s money. In short, the instrument was the means whereby the agent was able to get his hands on the money, but when the moneys were thus obtained, the agent received them as agent for the principal, and the fraudulent appropriation of the money thus obtained to his own use constituted embezzlement. In other words, it is no defense to embezzlement that the money reached the agent with the consent of the principal. On the contrary, such entrusting is the necessary setting for the crime...But it is no defense to embezzlement that the victim trusted the culprit.” Id. at 67.

The defendant is charged with Theft by Unlawful Taking or Disposition, Theft by Deception, Theft by Failure to Make Required Disposition of Funds Received, Receiving Stolen Property, and Dealing in Proceeds of Unlawful Activities. It is unnecessary to review the elements of each theft offense because a defendant accused of one type of theft under one section of the Crimes Code may be convicted with evidence demonstrating a different type of theft under the Crimes Code. Commonwealth v. Robichow, 487 A.2d 1000, 1003 (Pa. Super. 1985); Meriano v. Commissioner of Internal Revenue Service, 142 F.3d 651, 659 (3rd Cir. 1998). In that regard, the Crimes Code provides the following:

§ 3902. Consolidation of theft offenses
Conduct denominated theft in this chapter constitutes a single offense. An accusation of theft may be supported by evidence that it was committed in any manner that would be theft under this chapter, notwithstanding the specification of a different manner in the complaint or indictment, subject only to the power of the court to ensure fair trial by granting a continuance or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise.

18Pa.C.S. §3902.

It is the “thieving state of mind” which is “the essence of the theft charge, and the purpose of section 3902 is to reduce the opportunity for technical defenses based upon legal distinctions between thefts of various kinds.” Commonwealth v. Robinchow, 487 A.2d at 1004. “Thus, the proof of theft, per se, is sufficient to establish the commission of the crime, whether it was titled theft by deception or theft by failure to make required disposition, the manner of taking simply being the specific details of the theft and not constituting different elements of the crime.” Id.

In that vein, Section 3927 provides in pertinent part:

(a) Offense defined — A person who obtains property upon agreement, or subject to a known legal obligation, to make specified payments or other disposition, whether from such property or its proceeds or from his own property to be reserved in equivalent amount, is guilty of theft if he intentionally deals with the property obtained as his own and fails to make the required payment or disposition. The foregoing applies notwithstanding that it may be impossible to identify particular property as belonging to the victim at the time of the failure of the actor to make the required payment or disposition.

18 Pa.C.S. § 3927(a)

The four elements to complete this crime are the following:

1. The obtaining of property of another;
2. Subject to an agreement or known legal obligation upon the recipient] to make specified payments or other disposition thereof;
3. Intentional dealing with the property obtained as the defendant’s own; and
4. Failure of the defendant to make the required disposition of the property.

Commonwealth v. Turrell, 584 A.2d 882, 884 (Pa. 1990); Commonwealth v. Morrissey, 654 A.2d 1049, 1052 (Pa. 1995) (quoting Turrell); Robichow, 487 A.2d at 1002; Commonwealth v. Fritz, 470 A.2d 1364, 1366 (Pa. Super. 1983).

Here, the defendant obtained the property of Wilbur Stiles. He used the power of attorney to gain access to Mr. Stiles’ bank accounts and other assets. His possession of those substantial .assets did not change their ownership. The bank accounts, savings bonds, annuity accounts, residence and other assets were the “property of another,” namely, Wilbur Stiles. Section 3901 defines “property of another” in pertinent part as “property in which any person other than the actor has an interest which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property...” 18 Pa.C.S. § 3901. Furthermore, “a victim need not maintain absolute title over property to claim theft by wrongful disposition of funds received.” Meriano v. Commissioner of Internal Revenue Service, 142 F.3d at 660.

The defendant obtained the property of Wilbur Stiles subject to an agreement or known legal obligation to make specified payments or otherwise dispose of the property. The power of attorney required him to act as a fiduciary for the principal, not to use his funds as a private piggy-bank. It is also readily apparent that the defendant was intentionally dealing with Mr. Stiles’ property as his own. The magnitude of the liquidation of Mr. Stiles’ assets supports that conclusion. For example, the records reflect hundreds of ATM withdrawals, and checks written and cashed by the defendant. Mr. Stiles denied the possession or use of an ATM card. The certified fraud examiner reached the opinion that transactions from Mr. Stiles’ bank account that were connected to the defendant totaled $163,321.65. Likewise, the Wachovia Prime Equity Credit Line, which was secured with Mr. Stiles’ residence, reflects purchases including a Harley Davidson motorcycle, a Jeep Wrangler, and a trailer for a truck purchased for $30,863. It may later be demonstrated that Mr. Stiles was a Harley enthusiast who followed the motto “live to ride, ride to live,” but on the surface, it is more likely that the defendant purchased the motorcycle for his own benefit. The certified fraud examiner’s report and its supporting details not only confirms the aforementioned use of Mr. Stiles’ accounts by the defendant for his own benefit, but provides numerous other examples of the defendant’s self-dealing.

Finally, the evidence presented at the hearings demonstrates that the defendant failed to make the required disposition of the hundreds of thousands of dollars in Mr. Stiles’ accounts. During the period of January 28, 2006 to June 25, 2012, the certified fraud examiner found that $326,529.88 of Mr. Stiles’ funds was deposited into his account. The numerous debit transactions over the same period of time totaled $355,377.38. The defendant’s personal use of Mr. Stiles’ assets for himself and his family is explained in the certified fraud examiner’s report. To make matters worse, while the defendant was using Mr. Stiles’ substantial assets, and although assets were available, he failed to even pay for Mr. Stiles’ care at Cedarbrook Nursing Home and Gino Merli Veterans Home. The disposition of funds benefited the defendant, not Wilbur Stiles.

The Commonwealth’s evidence establishes a prima facie case as to each of the charges.

III. Statute of Limitations

The defendant contends that the applicable statute of limitations expired prior to the commencement of the criminal charges in this case. This assertion is advanced even though the defendant surreptitiously used Mr. Stiles’ funds for many years, and law enforcement did not learn of his conduct until 2012. Specifically, Lieutenant Sorrentino did not learn of the defendant’s conduct until he interviewed him on December 10, 2012. He filed charges on August 8, 2013.

A prosecution for certain “major offenses” must be commenced within five years after it is committed. 42 Pa.C.S. § 5552(b). All of the offenses commenced against the defendant fall within this subsection. It is the termination of the conduct that triggers the running of the statute of limitations. Commonwealth v. Stitt, 947 A.2d 195, 197 (Pa. Super. 2008). “An offense is committed either when every element occurs, or if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct plainly appears, at the time when the course of conduct or the complicity of the defendant therein is terminated. Time starts to run on the day after the offense is committed.” 42 Pa.C.S. § 5522(d).

The offenses committed by the defendant continued until the power of attorney was revoked on or about February 12, 2012. Even after the power of attorney was revoked, the defendant continued to cash checks claiming the power of attorney as authorization for his actions. The records reflect that the defendant cashed his last check from Wilbur Stiles’ bank account on February 27, 2012. The prosecution commenced on August 8, 2013, which is well within the five (5) year statute of limitations, regardless of which date in 2012 the defendant’s criminal conduct ended.

The defendant’s argument also fails because even if the statute of limitations expired “a prosecution may nevertheless be commenced for: (1) Any offense a material element of which is either fraud or a breach of fiduciary obligations within one year after discovery of the offense by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is himself not a party to the offense, but in no case shall this paragraph extend the period of limitations otherwise applicable by more than three years.” 42 Pa.C.S. § 5552(c)(1).

It is well-settled that the statute of limitations does not begin to run until the breach of the defendant’s fiduciary obligation was discovered. Commonwealth v. Fisher, 682 A.2d 811, 818 (Pa. Super. 1996); see also Commonwealth v. Volk, 444 A.2d 1182, 1187 (Pa. Super. 1982)(Fraud is a material element of the offense of theft by deception). Lieutenant Sorrentino’s interview with the defendant did not trigger the discovery of the defendant’s offenses because “discovery is not satisfied by mere suspicion; it requires acquisition of knowledge that a penal statute has been violated. Commonwealth v. McSloy, 751 A.2d 666 (Pa. Super. 2000) citing Commonwealth v. Hawkins, 439 A.2d 748, 750 (Pa. Super. 1982). This means that Lieutenant Sorrentino’s filing of the complaint on August 8, 2013, under this exception, if necessary, was timely. Furthermore, the date of his interview with the defendant did not constitute discovery because discovery did not occur until his investigation determined crimes were committed by the defendant.

In short, the prosecution of the defendant is not time-barred.

ORDER

AND NOW, this 19th day of June, 2015, following hearings held in this matter and after consideration of the defendant’s Motion To Suppress Statements, Motion To Dismiss (Habeas Corpus), and Motion To Dismiss (Statute of Limitations) contained in the “Omnibus PreTrial Motion For Relief’;

IT IS HEREBY ORDERED that said motions are DENIED.

      . The Commonwealth filed a “Motion To Amend The Bill Of Information” on October 29, 2014. A hearing was held on that motion on February 4, 2015, and the Commonwealth was permitted to do so with the exception of Count six (6) which was a charge of Criminal Conspiracy between the defendant and Judy Bartholomew. On March 10, 2015, the Commonwealth filed its Amended Information. Trial is scheduled for October 5,2015. See generally Commonwealth v. Beck, 78 A.3d 656, 660-661 (Pa. Super. 2013).

      . Omnibus Pre-Trial Motion For Relief (hereinafter OPTM), ¶¶ 1-26.

        . Id. at ¶¶ 27-58.

      . Id. at ¶¶ 59-61.

      . Id. at ¶¶ 62-64.

      . Id. at ¶¶ 65-69.

      . OPTM, ¶¶ 70-75.

      . Id. at ¶¶ 76-77.

      . Addendum To Omnibus Pre-Trial Motion For Relief, ¶¶ 78-85.

      . Id. at ¶¶ 86-88.

      . On March 10, 2015, the claims raised in the “Addendum To Omnibus Pre-Trial Motion For Relief’ were denied. On May 12, 2015, the “Motion to Suppress Physical Evidence” and “Motion to Suppress Physical Evidence — Chain of Custody” were withdrawn and dismissed. Additionally, the “Motion to Suppress Information in Toto” was denied. The “Motion in Limine,” which pertained to editing the preserved testimony of Wilbur Stiles, was deferred in order to determine if any of his testimony should be redacted.

      . Notes of Testimony, Pre-Trial hearing (hereinafter N.T.P.T.H.), 2/4/15, pp. 52-54, 59.

      . Id. at p. 54.

      . Id. at p. 55.

      . Id. atp. 56.

      . Id. atpp. 57, 59.

      . T.P.T.H., pp. 89-90.

      . Id. at p. 94.

      . Id. at p. 93.

      . N.T.P.T.H., 2/4/15, pp. 52-53, 59.

      . N.T.P.T.H., 2/4/15, p. 87.

      . Id. at p. 89.

      . Id.

      . OPTM, ¶¶ 37, 39, 44, 46, 50, 58.

      . Id. at ¶¶ 28, 30,42.

      . Id. at ¶ 32.

        . Id. at|41.

      . Id. at ¶53-54.

      . On December 4, 2013, this Court, after a contested hearing, permitted the testimony of Wilbur Stiles to be taken and preserved as set forth in Pa.R.Crim.P. 500. Mr. Stiles testified under oath on Januaiy 20, 2014 at the Gino Merli Veterans Center in Scranton, Pennsylvania in the presence of this Court, counsel for the defendant and the Commonwealth, and the police prosecutor.

      . See Commonwealth’s Exhibit 3, General Durable Power Of Attorney dated October 21, 2003.

      . Case Report of Linda S. Mill, Certified Fraud Examiner (hereinafter Case Report).

      . Id. at p. 5.

      . See Commonwealth’s Exhibit 4.

      . N.T.P.T.H., 2/4/15, p. 120.

      . Id. atp. 133.

      . “First Amended Petition To Compel Accounting...”, ¶¶ 9-11.

      . N.T.P.T.H., 2/4/15, p. 197.

      . See Commonwealth’s Exhibit 6, Adjudication of Judge Johnson, p. 2.

      . Case Report, pp. 1, 8.

      . Wachovia Prime Equity Line.

      . Case Report, p. 6.

      . Id. at p. 8. See also Exhibits B, Cl, C2 and C3 attached to Case Report.

      . Id.

      . Id. at p. 9.

        . Id.

      . N.T.P.T.H., 2/4/15, p. 55.

      . Id. at pp. 55-56.

      . Preservation of Wilbur Stiles’ testimony (hereinafter N.T.WS), pp. 27-30, 50, 59.

      . Id. at pp. 57-58, 63.

      . Id. at pp. 69-71.

      . 8 Pa.C.S. § 3921(a).

      . 18 Pa.C.S. § 3922(a)(1).

      . 18 Pa.C.S. § 3927(a).

      . 18 Pa.C.S. § 3925(a).

      . 18 Pa.C.S. § 5111(a)(1).

      . The defendant is also charged with Dealing in Proceeds of Unlawful Activities. 18 Pa.C.S. § 5111(a)(l)(2). This section in pertinent part requires the Commonwealth to prove the following:
      (a) Offense defined.—A person commits a felony of the first degree if the person conducts a financial transaction under any of the following circumstances:
      (1) With knowledge that the property involved, including stolen or illegally obtained property, represents the proceeds of unlawful activity, the person acts with the intent to promote the carrying on of the unlawful activity.
      (2) With knowledge that the properly involved, including stolen or illegally obtained property, represents the proceeds of unlawful activity and that the transaction is designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the proceeds of unlawful activity.
      A “financial transaction” is defined as “[a] transaction involving the movement of funds by wire or other means or involving one or more monetary instruments.” 18 Pa.C.S. § 5111(f) A claim that the defendant did not engage in financial transactions with Mr. Stiles’ assets would be frivolous, and any further discussion is unnecessary.
      “Unlawful activity” is defined as “[a]ny activity graded a misdemeanor of the first degree or higher under Federal or State law.” The defendant is charged with felony theft offenses, which has been interpreted as “unlawful activity.” Commonwealth v. Barnhart, 722 A.2d 1093, 1096 (Pa. Super. 1998). The defendant’s actions, as explained earlier in this opinion, support the conclusion that the defendant knowingly and wrongfhlly used Mr. Stiles’ assets with the intent of promoting the “unlawful activity,” and the financial transactions in part were designed to “conceal or disguise the nature...source, ownership or control of the proceeds of unlaw&l activity.”

      . The defendant’s arguments also fail because even if some evidence related to the charges could be barred by the statute of limitations, that same evidence would be admissible to prove the defendant’s chain of events and course of criminal conduct committed by the defendant. Commonwealth v. Kincaid, 95 A.3d 279, 285 (Pa. Super. 2014); Commonwealth v. Weiss, 81 A.3d 767, 715-716 (Pa. 2013) quoting Commonwealth v. Lark, 543 A.2d 491, 497 (Pa. 1988) (“Evidence of other crimes may be relevant and admissible [] where such evidence was part of the chain or sequence of events which became part of the history of the cases and found part of the natural development of the facts.”). See also U.S. v. Pharis, 298 F.3d 228, 234 (3rd Cir. 2002)(Mailings that fall outside the statute of limitations can be considered as evidence to prove later fraud that was within the statute of limitations.).