author: NANOVIC, PJ,

text:
    JP Morgan Chase Bank v. Zellin

      C.P. of Carbon County,
    no. 05-3469.

      Sheetal R. Shah-Jan, for plaintiff.

      Stanley J. Zellin, pro se.

      Kim Roberti, for defendants Murphy and Keller.

      March 1, 2007
   NANOVIC, PJ,

FACTUAL AND PROCEDURAL BACKGROUND

The above-named plaintiff, JP Morgan Chase Bank, as trustee, is the assignee and current holder of a mortgage in the face amount of $89,000, dated June 11,2003, and recorded on July 22, 2003. The property bound by the mortgage is that located at 344 East Ludlow Street, Summit Hill, Carbon County, Pennsylvania. This property was purchased by the defendants, James Murphy, Rachael Keller and David Keller (collectively, the buyers), at a sheriff’s sale held on August 12, 2005, at the behest of the Panther Valley School District for unpaid school taxes due for the fiscal year 2003-2004. The defendant, Stanley J. Zellin, was the original mortgagor with Bank’s predecessor mortgagee, Wilmington Finance Inc., and was the owner of the property at the time of the tax sale.

Bank commenced the instant proceedings for mortgage foreclosure by complaint filed on December 29,2005. A default judgment in the amount of $94,019.43 was entered against Zellin on November 20, 2006, for failure to file an answer to the complaint. The buyers, in their defense to the Bank’s action, contend, inter alia, that the Bank’s mortgage was divested in the execution proceedings wherein they acquired title to the property.

Whether Bank’s mortgage was divested by the sheriff’s sale held on August 12,2005, is the deciding issue in this litigation. The facts material to this issue are not in dispute, however, the parties disagree on the relevant law and its application. As a result, we have before us a pure question of law. Both parties have filed motions for summary judgment on this issue which we will now address.

DISCUSSION

For the reasons which follow, we conclude that the mortgage was divested. In reaching this conclusion the importance of promptly recording a mortgage to preserve its priority and of correctly identifying the underlying statute pursuant to which a tax sale is held cannot be overemphasized.

With the exception of a purchase money mortgage, for which a 10-day grace period exists, the lien of a mortgage attaches when the mortgage is left for recording. 42 Pa.C.S. §8141(2). Accordingly, Bank’s mortgage attained lien status on July 22, 2003, the date the mortgage was recorded.

A tax levy resolution establishing the millage for the school district’s 2003-2004 real estate taxes was adopted on June 26, 2003. 24 P.S. §6-672. As a result, in accordance with the governing law discussed below, these taxes became a lien on affected real estate as of July 1, 2003, the first day of the district’s fiscal year for which the tax was imposed. 24 P.S. §6-671. As a further result, the school taxes, though levied after the date of the mortgage, have a prior lien status because of the delay in filing the mortgage.

“As a general rule, a sheriff’s sale of real estate discharges all liens [prior as well as subsequent liens] on the property sold unless the sale is expressly made subject to a prior lien or liens, or unless it is otherwise provided by statute, as in the case of certain mortgages, and in the case of tax and municipal liens.” Liss v. Medary Homes Inc., 388 Pa. 139, 143, 130 A.2d 137, 139 (1957). (alteration in original) (citations and statutory authority omitted) By statute, with certain exceptions, a mortgage lien on real estate which is prior to all other liens upon the same property is unaffected by a judicial sale of the property. 42 Pa.C.S. §8152(a). These exceptions include:

“(1) taxes, municipal claims and assessments, not at the date of the mortgage duly entered as a lien in the office of the clerk of the court of common pleas; and

“(2) taxes, municipal claims and assessments whose liens though afterwards accruing have by law priority given them.” 42 Pa.C.S. §8152(a)(2), (3).

On its face, this first exception appears to protect the Bank’s mortgage from discharge: the lien of the School District’s taxes, though accruing earlier in time had not, as of the date of the mortgage, been “duly entered as a lien in the office of the clerk of the court of common pleas.” The statute does not, however, explicitly state that a mortgage lien will survive a judicial tax sale for delinquent taxes whose lien on the premises precedes the recording of the mortgage. See In re City of Pittsburgh, 243 Pa. 392, 90 A. 329 (1914) (statutory provision in derogation of the common law will be applied only if expressly stated or fairly implied from statute’s language). Moreover, section 8152(c) provides:

“(c) Sale on prior lien. — A judicial or other sale of real estate in proceedings under a prior judgment or a prior ground rent, or in foreclosure of a prior mortgage, shall discharge a mortgage later in lien.” 42 Pa.C.S. §8152(c).

It is at this point that the statutory basis for the sheriff’s sale at which the buyers purchased the property must be examined. Our Supreme Court has held that when a tax sale is commenced under a particular act of the General Assembly, “the procedure therein prescribed must be followed and under that act alone must the validity and effect of the sale be tested. Other legislation providing a different procedure or result cannot be used either to sustain such sale or secure additional rights or results. The act under which the proceeding is had must show the authority and the effect of such sale.” Gordon v. City of Harrisburg, 314 Pa. 70, 73, 171 A. 277, 278 (1934) (emphasis added). The validity and effect of the school district’s judicial sale must therefore be tested under the enabling legislation pursuant to which the sale was conducted, without regard to any other legislation. City of Allentown v. Kauth, 874 A.2d 164, 168 (Pa. Commw. 2005), appeal denied, 590 Pa. 670, 912 A.2d 839 (2006).

In this case, the school district proceeded under the Municipal Claims and Tax Liens Act (MCTLA), 53 P.S. §§7101-7505. Pursuant to that Act, the school district recorded a tax claim against the property on June 24, 2004. On September 16,2004, the district praeciped for the issuance of a writ of scire facias sur tax claim and thereby commenced an action under the MCTLA to obtain ajudgment on its claim. 53 P.S. §7185; see also, Baden Borough v. Koodrich, 54 D.&C.2d 497, 498 (1972) (suit to recover upon a tax or municipal claim commences with the issuance of a writ of scire facias, not upon the filing of a municipal claim). A writ of scire facias was duly issued and served, and a default judgment for want of an answer was taken on October 29, 2004, in the amount of $ 1,761.84.

Thereafter, on April 18, 2005, execution proceedings were commenced when the school district filed a praecipe for writ of execution pursuant to the Rules of Civil Procedure. Notice of the sheriff’s sale was given to all parties having an interest in the property in accordance with Pa.R.C.P. 3129.1, 3129.2, and 3129.3. This notice included written notice of the intended sale to the Bank by first class mail, postage pre-paid, addressed to the Bank at “4 New York Plaza, 6th FI., New York, NY 10004.”

The property proceeded to sheriff’s sale on August 12, 2005, as scheduled, with the buyers being the successful bidders for a bid of $6,245. Title to the property was subsequently transferred to the buyers by sheriff’s deed dated September 2,2005, and recorded on September 6, 2005, in the Office of the Recorder of Deeds in and for Carbon County in Record Book volume 1367, page 46. The grantees in this deed are designated as “James Murphy 50 percent interest, Rachael Keller 25 percent interest, and David Keller 25 percent interest.”

The foregoing makes clear that the sheriff’s sale held on August 12, 2005, for unpaid school taxes was conducted under the authority of the MCTLA. In accordance with City of Allentown v. Kauth, we must next determine what the effect of the sheriff’s sale was under that Act on the Bank’s mortgage. The issue is controlled by section 31 of the MCTLA. 53 P.S. §7281.

Under the MCTLA, all taxes imposed on real property by a municipality are a first lien on such property, subordinate only to tax liens imposed by the Commonwealth. 53 P.S. §§7102, 7103. Section 31 posits two classes of judicial sale when executing upon a tax or municipal claim: an initial upset sale, whether or not the upset price is bid, and a subsequent judicial sale, free and clear of all liens and encumbrances, whether accruing before or after the tax or municipal claim upon which the sale is based.

For an upset sale, the upset price is the amount sufficient to pay all taxes and municipal claims, and all accrued but unfiled taxes and claims, in full. 53 P.S. §7279. In the event the proceeds at an upset sale are insufficient to pay the taxes and municipal claims in full, other than the tax or municipal claim upon which the sale is based (which claim will be discharged by the sale), the lien for those taxes and municipal claims which have not been paid in full, to the extent of nonpayment, will not be divested from the property sold. 53 P.S. §7281.

Alternatively, if the upset price is not bid at the upset sale, the plaintiff on the claim may petition the court to issue a rule upon all interested parties (as evidenced by a search or title insurance policy produced by the plaintiff showing the state of the record and the ownership of the property) to show cause why the property should not “be sold, freed, and cleared of their respective claims, mortgages, charges, and estates.” Id. Once the court is satisfied that the facts averred in the petition are hue and that all interested parties have received proper notice, “it shall order and decree that said property be sold at a subsequent sheriff’s sale day, to be fixed by the court without further advertisement . . . clear of all claims, liens, mortgages, charges, and estates, to the highest bidder at such sale.” Id. This sale “divests all liens levied against the affected property [including prior mortgages] without exception.” City of Allentown v. Kauth, 874 A.2d at 166; Pittsburgh v. Fort Pitt Chemical Co., 345 Pa. 471, 472, 29 A.2d 41, 42 (1942).

The sheriff’s sale in the sale sub judice was of the first type: an upset sale. No petition was filed with the court to sell the property free and clear. As to the effect of such a sale on the Bank’s mortgage, section 31 provides:

“Mortgages . .. which were recorded . . . before any tax other than for the current year accrue... shall not be disturbed by [any judicial] sale unless a prior lien is also discharged thereby.” 53 P.S. §7281.

Under this section, mortgages recorded before any tax becomes a lien, other than taxes for the current tax year, will not be divested provided no lien prior to the mortgage is also discharged.

As applied to the Bank’s mortgage, other than taxes which were accruing for the then current year (i.e., the 2003-2004 school fiscal year), the record is devoid of any other tax lien having temporal priority to the mortgage. This notwithstanding, the August 2005 sheriff’s sale on the unpaid 2003-2004 school taxes discharged the lien of those taxes, a lien predating the recording of the Bank’s mortgage, and, by the plain language of section 31, also discharged the mortgage. Stated differently, because the lien of the Bank’s mortgage did not pre-date the lien of the unpaid school taxes on which judgment was taken and execution held, the mortgage was divested at the sheriff’s sale held pursuant to section 31 of the MCTLA.

CONCLUSION

In accordance with the foregoing, the buyers’ motion for summary judgment will be granted and that of the Bank denied.

      . Under the MCTLA, the definition of taxes includes school taxes “together with and including all penalties, interest, costs, charges, expenses and fees, including reasonable attorney fees, as allowed by [the MCTLA] and all other applicable laws.” A “tax claim” is a claim filed to recover taxes. 53 P.S. §§7101,7200(a) and 7231. Taxes on real property are a first lien on such real property (but subordinate to the lien of taxes imposed by the Commonwealth) with every such lien dating “from the day on which the millage or tax rate is fixed by the proper authority of any such political subdivision, except where such taxes are imposed and assessed prior to the commencement of the fiscal year for which the same are imposed or assessed, in which case the lien of such taxes shall date from the first day of the fiscal year for which such taxes are imposed or assessed.” 53 P.S. §7102. In order to preserve their lien status, tax claims must be filed on or before the last day of the third calendar year after that in which the taxes are first payable. 53 P.S. §7143. The school district’s claim stated the amount of taxes due on the property to be $1,276.37.

      . Scire facias is a “judicial writ, founded upon some matter of record, such as ajudgment or recognizance and requiring the person against whom it is brought to show cause why the party bringing it should not have advantage of such record.” The Latin term is used to designate both the writ and the whole proceeding. Black’s Law Dictionary 1208 (5th ed. 1979). City of McKeesport v. Delmar Leasing Corp., 656 A.2d 180, 181 n.2 (Pa. Commw. 1995), appeal denied, 542 Pa. 636, 665 A.2d 470 (1995).

      . The difference between the amount of this judgment and the tax claim entered on June 24,2004, is attributable to attorney fees, interest, and costs which were added to the claim.

      . Pa.R.C.P. 3190 states that ajudgment in rem in an action or proceeding upon, inter alia, a municipal tax claim shall be enforced against the real property subject to the claim in accordance with Rules 3180 to 3183 governing the enforcement of judgments in mortgage foreclosure. Pa.R.C.P. 3181 provides that the procedure for the enforcement of a judgment shall be in accordance with the rules governing the enforcement of judgments for the payment of money with respect to (a) Commencement and issuance of writ: — Rules 3103(a), 3103(e) and 3105... (f) N otice of sale, stay, continuance: — Rule 3129.1 through .3. City of McKeesport, 656 A.2d at 181-82 n.5.

      . The Bank, in its supplemental brief filed on February 9, 2007, opposing the buyers’ motion for summary judgment, raises, for the first time, the sufficiency of this notice, contending that its address given in the assignment of mortgage from Wilmington Finance Inc. contained the following additional language which was not included in the address used by the school district in providing it notice of the sheriff’s sale: “Attn: Institutional Trust Svcs./Structured Finance Svcs., SURF Series 2003-BC3.” From this, the Bank concludes that the address was incomplete and the notice defective. Notwithstanding this argument, the Bank does not contend it did not receive notice of the sheriff’s sale or that it has been prejudiced by the address used. To the contrary, in response to the buyers’ motion for summary judgment filed on January 4, 2007, the Bank admitted having received this notice. (See buyers’ motion for summary judgment and Bank’s response, paragraph 25.)

      . At this point, we are limiting our discussion solely to judicial sales in which the underlying lien being foreclosed upon is a tax or a municipal claim. With respect to judicial sales upon other than tax or municipal claims, taxes are a first lien entitled to priority in payment out of the proceeds of any judicial sale and, to the extent the sale’s proceeds are insufficient to pay the tax or municipal claim in full, the lien of these claims will not be divested, whether or not such lien accrued prior in time to the lien being executed upon. 53 P.S. §§7103, 7104, 7106(a), and 7281; In re Commonwealth, Department of Transportation, 36 Pa. Commw. 346, 350, 388 A.2d 344, 346 (1978).

      . Although designated as an upset sale, as a sale under the MCTLA, it is also a judicial sale. City of Uniontown v. McGibbons, 115 Pa. Super. 132, 174 A. 912, 914-915 (1934). By definition, a judicial sale is “a sale under the judgment, order, or decree of the court; a sale under judicial authority, by an officer legally authorized for the purpose, such as a sheriff’s sale, an administrator’s sale, etc.” Id. at 915. (quotation marks and citations omitted)

      . As to any inconsistency between 42 Pa.C.S. §8152 and 53 P.S. §7281, if indeed inconsistency exists, the latter, being part of a full and complete statutory system for levying, preserving and collecting tax and municipal claims, and providing for the effect of judicial sales on liened property, controls over more general legislation dealing with the preservation of liens. 1 Pa.C.S. §1933 (providing that when a general provision in a statute is in conflict with a special provision in another statute and the two provisions cannot be reconciled, the special provision prevails, unless the general provision is enacted later and is intended by the General Assembly to control); see also, Pittsburgh v. Fort Pitt Chemical Co., 345 Pa. 471, 473, 29 A.2d 41, 43 (1942).
      In Household Consumer Discount Co. v. Extended Care Center Inc., 299 Pa. Super. 74, 445 A.2d 154 (1982), the court held that a tax sale for unpaid taxes accruing in the same year as that in which the mortgage was recorded divested the mortgage because the mortgage “was filed subsequent to the tax lien that led to the sale of the property.” Id. at 77, 445 A.2d at 155. In reaching its decision, the court expressly considered the applicability of section 8152 and found this section to be of no assistance to the mortgage holder. Of relevance, the court stated:
      “At common law the rule was that a sheriff’s sale automatically divested all liens, and statutes have therefore been necessary to change the common law and preserve the lien of a mortgage where it is prior to the lien under which a tax sale is made.
      “We cannot conclude therefore that a statute must contain wording as to the effect of a sale for delinquent taxes in order to divest a mortgage; on the contrary, wording which preserves the lien of a prior mortgage would be necessary to provide the right.” Id. at 76, 445 A.2d at 155. (citation omitted)

        Thus, in the context of a mortgage filed in the same year as current taxes accrue, but after the tax lien date, the court held that the language of section 8152 alone was insufficient to protect the mortgage. This latter scenario is this case.
      In Household Consumer Discount Co., the effect of section 8152 vis-á-vis 53 P.S. §37541 was at issue. Unlike 53 P.S. §37541, the language of 53 P.S. §7281 itself provides for divestiture of the Bank’s mortgage. In doing so, the conclusion we reach is strengthened even further from that reached in Household Consumer Discount Co.

      We are aware of two cases which discuss the relationship between 21 P.S. §651, the predecessor to 42 Pa.C.S. §8152, and 53 P.S. §7281, however, in both, the court was faced with the issue of whether a prior mortgage could validly be divested by a judicial sale on a tax lien later in time when the section 31 procedure for a rule to show cause was invoked, given the language of what is now section 8152. Erie v. Piece of Land, 339 Pa. 321, 328 n.1, 14 A.2d 428, 431 n.1 (1940); Pittsburgh v. Fort Pitt Chemical Co., 345 Pa. 471, 473, 29 A.2d at 43. Both cases are therefore distinguishable from the present situation where the Bank’s mortgage is subordinate in lien position to the taxes being executed upon, and no petition was presented to the court for a sale free and clear of all liens and encumbrances. Consequently, in neither case did the court discuss the meaning or effect of the language in section 31 which we have identified in the text as it relates to the discharge of a mortgage in an upset sale.

      . The Bank’s argument that an upset sale under the MCTLA is the equivalent of an upset sale under the Real Estate Tax Sale Law (RETSL), 72 P.S. §§5860.101-5860.803, and should have the same effect, misconceives the discrete and independent nature of these two acts. The Bank’s argument, in essence, is that, with respect to real estate taxes, both statutes have similar objectives — the preservation and collection of delinquent tax claims — and both employ similar mechanisms to effect collection: preferential lien status of the claim (compare 72 P.S. §5860.301 with 53 P.S. §7102); an initial upset sale (compare 72 P.S. §§5860.601 and 5860.605 with 53 P.S. §§7279 and 7281); and, in the absence of receipt of the upset price, provision for a “free and clear” judicial sale upon petition to the court (compare 72 P.S. §§5860.610 and 5860.612 with 53 P.S. §7281). These comparisons notwithstanding, the structural similarity of two statutes each of which deals with the subject of in rem tax collection does not compel, legally or logically, identical outcomes. “There is nothing inherently inconsistent in the existence of two distinct statutory procedures for the resolution of the same disputes, even though the result may be a lack of symmetry in the area.” City of Allentown v. Kauth, 874 A.2d 164, 168 (Pa. Commw. 2005) (quoting Pennsylvania Turnpike Commission v. Sanders & Thomas Inc., 461 Pa. 420, 429, 336 A.2d 609, 614(1975)).
      In City of Allentown, the Commonwealth Court held that the MCTLA and RETSL work concurrent to one another and provide alternative, not exclusive, means for the collection of delinquent tax claims. Id. at 169. The benefit of having this choice is well-illustrated by the present case where the two statutes, which have different notice requirements, act differently with respect to the effect of an upset sale on subordinate encumbrances. The RETSL does not require notice of an upset sale to third party lienholders and, consequently, does not divest any claims not included in the upset price. 72 P.S. §§5860.602 and 5860.609; see also, First Pennsylvania Bank, N.A. v. Lancaster County Tax Claim Bureau, 504 Pa. 179, 470 A.2d 938 (1983) (holding notice provision in former 72 P.S. §5860.602, which did not require either personal service or service by mail of an impending tax sale to a record mortgagee, violated the mortgagee’s constitutional due process rights). In contrast, an upset sale under the MCTLA is held under the auspices of the sheriff’s office and is a judicial sale requiring notice to all parties in interest prior to the sale. As a consequence, loss of lien status is constitutionally permissible.


source: Caselaw Access Project

author: BUCCI, J,

license: Public Domain

text:
    Commonwealth v. Brown

      C.P. of Berks County,
    no. CR-06-CR-0006039-2004.

      Jason Lutcavage, assistant district attorney, for Commonwealth.

      Eric Taylor, assistant public defender, for defendant.
    February 27, 2007
   BUCCI, J,

PROCEDURAL HISTORY

On May 18,2006, a jury found the defendant, Donald Brown, guilty of robbery (two counts), terroristic threats, simple assault, theft by unlawful taking, theft by deception, and possession of a controlled substance. He was sentenced on August 4, 2006 to an aggregate sentence of seven to 14 years incarceration. On September 1, 2006, defendant, by and through counsel, filed a post-sentence motion, challenging the weight and sufficiency of the evidence supporting his conviction on the above charges. A hearing was held addressing this motion on November 20,2006 and on January 9,2007, this court granted defendant a new trial. On February 7,2007, the Commonwealth appealed this court’s January 9, 2007 order. On February 9,2007, this court ordered appellant to file a concise statement of matters complained of on appeal, pursuant to Pennsylvania Rules of Appellate Procedure § 1925(b). Appellant filed a concise statement on February 14, 2007, raising the following issues:

(1) The trial court lacked the requisite authority and jurisdiction to issue its January 9, 2007 order granting the defendant’s post-sentence motion for new trial where the defendant did not request any extension of time for ruling on his post-sentence motions.

(2) The trial court erred in granting the defendant’s motion for new trial on the grounds of insufficiency and weight of the evidence.

The evidence, viewed in a light most favorable to the Commonwealth, shows that on October 31,2004, Reading Police Officers David Liggett and John Carrasquillo were working undercover on a prostitution detail in the City of Reading, Berks County, Pennsylvania when they approached a man named Alex Duncan and expressed an interest in purchasing two “dime bags” of cocaine from him. N.T., jury trial, 5/18/06, at 39-42, 65-66. Mr. Duncan asked the undercover officers to follow him on foot to get the drugs. N.T., jury trial, 5/18/06, at 42. Near the comer of South 9th and Franklin Streets, Mr. Duncan encountered the defendant, Donald Brown, and they spoke briefly. N.T., jury trial, 5/18/06, at 43, 54. Then the defendant approached Officers Liggett and Carrasquillo and asked one of them to come with him. N.T., jury trial, 5/18/06, at 44.

As they walked south on 9th Street toward Franklin Street, Officer Liggett stated that “Mr. Brown placed his right hand behind his back cupped. At that time, I saw a small blue glassine packet maybe a half inch. This half inch contained a powdeiy white substance, which I suspected to be cocaine. Fie told me to give him the money, which was a $20 bill. At that time, I placed the pre-recorded $20 bill in his right hand where the drugs were and I attempted to grab the bag and he shut his fist.” N.T., jury trial, 5/18/06, at 45-47.

Officer Liggett asked him where the bag was and the defendant told him to “be cool” and wait at a nearby pay phone. N.T., jury trial, 5/18/06, at 47-48. The defendant crossed Franklin Street to get into a parked car with a white male and a white female occupant. N.T., jury trial, 5/18/06, at 48, 58. At this point, Officer Liggett and Officer Carrasquillo concluded, perhaps prematurely, that they were being ripped off. As the vehicle began to pull away, Officer Carrasquillo began banging on the left rear window with his fist, demanding, “Give me my shit.” N.T., jury trial, 5/18/06, at 48,59. The defendant got out of the car with clenched fists and approached Officer Carrasquillo, who put his arm out straight in front of him to keep some space between himself and the defendant, touching the defendant on the stomach. N.T., jury trial, 5/18/06, at 48-49. The defendant said, “Don’t fucking touch me. I’ll shoot you.” N.T., jury trial, 5/18/06, at 49.

During this encounter, both officers repeatedly expressed their desire to consummate the drug deal and continued to demand their cocaine from the defendant. N.T., jury trial, 5/18/06, at 49. The defendant told the officers that he had “an eight ball in the car that needed to be cut up,” referring to a larger amount of cocaine. N.T., jury trial, 5/18/06, at 49. Mr. Brown then attempted to re-enter the vehicle. However, Officer Carrasquillo continued to demand that the defendant “give me my shit,” and the defendant responded, “I will straight up shoot you.” N.T., jury trial, 5/18/06, at 50.

The defendant got into the car, which drove away. N.T., jury trial, 5/18/06, at 50. However, he was arrested a few blocks away by Reading Criminal Investigator Lackner in possession of a small blue glassine packet of cocaine and the $20 of pre-recorded buy money that Officer Liggett had given him. N.T., jury trial, 5/18/06, at 79-84; Commonwealth exhibit nos. 2-4. No weapon was found. N.T., jury trial, 5/18/06, at 85.

As discussed above, on May 18, 2006, a jury found the defendant guilty of robbery, terroristic threats, simple assault, theft by unlawful taking, theft by deception, and possession of a controlled substance and he was sentenced by this court on August 4, 2006 to seven to 14 years incarceration. On September 1,2006, the defendant filed a timely post-sentence motion. A hearing was held addressing that motion on November 20, 2006. Unfortunately, due to this court’s heavy trial schedule, we inadvertently failed to render a decision on defendant’s post-sentence motion within 120 days of the date the motion was filed as required by Pennsylvania Rules of Criminal Procedure Rule 720(B)(3). However, we strongly urge the Superior Court not to penalize the defendant for this court’s inadvertence.

In his post-sentence motion, the defendant argued that the guilty verdicts for the robbery and theft convictions were against the weight and sufficiency of the evidence because the Commonwealth failed to establish that the defendant intended to take the undercover police officers’ money without providing them with cocaine. Instead, the defense argues, he was merely leaving to get the drugs from another location and intended to return. After a careful review of the evidence, this court concludes that the verdict is against the weight of the evidence.

While this court does not believe that any of the Commonwealth’s witnesses presented false testimony, we do believe that they misinterpreted the events that took place on the morning of October 31, 2004. The undercover officers repeatedly expressed their intent to buy drugs and the defendant appeared to have the intention of complying with their request. There was no force or threat of force used to initially obtain the money from the undercover officers and no evidence to suggest that the defendant would not have fulfilled his end of the bargain if given the opportunity to do so.

It is important to note that it was not the defendant who initiated the drug transaction, but rather it was the Reading Police who were actively seeking to purchase drugs in an undercover capacity. Furthermore, it was the police who first engaged in aggressive and belligerent behavior when they started banging on the car window and screaming, “Give us our shit.” Finally, Officer Carrasquillo first initiated physical contact by stiff arming the defendant in the stomach. Examining the totality of the circumstances, this court believes that the threats the defendant made to the undercover police officers were more likely a response to the officers’ own aggressive actions then an attempted robbery, particularly since no weapon was involved.

Unfortunately, the defendant’s trial counsel failed to vigorously attack the weaknesses in the Commonwealth’s case or to suggest an innocent motive for the defendant’s conduct. While the defendant did not raise the issue of his trial counsel’s ineffectiveness, this court is concerned that he was not given the zealous representation he should have received. Additionally, the defendant was furthered denied a fair trial because he was unable to present his version of the facts to the jury.

In determining whether the verdict is against the weight of the evidence, the role of the trial court is to determine whether, “notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.” Commonwealth v. Widmer, 560 Pa. 308, 320, 744 A.2d 745, 752 (2000). (citations omitted) Stated more concisely, the verdict should not be disturbed unless it is so contrary to the evidence as to shock one’s sense of justice. Commonwealth v. Miller, 555 Pa. 354, 367, 724 A.2d 895, 901 (1999).

While this court is reluctant to question the verdict of a jury, we are even more reluctant to allow the defendant to spend a significant period of his life incarcerated for the alleged robbery of a mere $20 when the evidence supporting his convictions is speculative at best. Indeed, it would be manifestly unjust to do so.

The Pennsylvania Supreme Court has repeatedly emphasized: “One of the least assailable reasons for granting or denying a new trial is the lower court’s conviction that the verdict was or was not against the weight of the evidence.” Commonwealth v. Davidson, 860 A.2d 575, 581-82 (Pa. Super. 2004).

“In reviewing the entire record to determine the propriety of a new trial, an appellate court must first determine whether the trial judge’s reasons and factual basis can be supported. Unless there are facts and inferences of record that disclose a palpable abuse of discretion, the trial judge’s reasons should prevail.” Commonwealth v. Mann, 820 A.2d 788, 793 (Pa. Super. 2003).

“When the record adequately supports the trial court, the trial court has acted within the limits of its judicial discretion.” Commonwealth v. Forbes, 867 A.2d 1268, 1273 (Pa. Super. 2005). “Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.” Commonwealth v. Forbes, 867 A.2d 1268, 1273 (Pa. Super. 2005).

Here, this court did not abuse its discretion in granting defendant a new trial and, therefore, the Commonwealth’s appeal should be denied and this court’s order affirmed.

      . 18 Pa.C.S. §3701 (a)(l)(ii), 18 Pa.C.S. §3701(a)(l)(iii).

      . 18 Pa.C.S. §2706.

      . 18 Pa.C.S. §2701 (a)(3).

      . 18 Pa.C.S. §3921(a).

      . 18 Pa.C.S. §3922(a)(l).

      . 35 P.S. §780-113(a)(16).

      . The defendant was tried in absentia because he failed to appear for the second day of the jury trial. While the defendant should arguably suffer any consequences arising from his own poor judgment, in retrospect this court believes that it was too quick to proceed without the defendant. Trial could have been delayed one day without prejudice to the Commonwealth and this court should have weighed more thoroughly the potential prejudice to the defendant in proceeding without his presence against the cost to the Commonwealth of dismissing the jury and initiating new trial proceedings.


author: MILLER, J,

text:
    Gochal v. Monroe County Tax Claim Bureau

      C.P. of Monroe County,
    no. 7575 Civil 2006.

      Aaron DeAngelo, for petitioner.

      Anthony Roberti, for respondents.
    February 22, 2007
   MILLER, J,

I. FINDINGS OF FACT

(1) In 1971, petitioner, VeraM. Gochal, and her then-husband Allan Gochal took title to a parcel of land situate in Middle Smithfield Township, Monroe County, Pennsylvania, identified as a one-acre parcel, described as Lot M 193 and identified as tax code parcel 9/10 A/1/97.

(2) When the petitioner failed to make payment of the real estate taxes, the Monroe County Tax Claim Bureau scheduled an upset tax sale for the premises for September 14,2005. The property was not sold and the Monroe County Tax Claim Bureau then scheduled a judicial sale in 2006. W.P. Investments LLC purchased the property at the judicial sale in April of 2006.

(3) During petitioner’s over 30 years of ownership of this property, she has resided at 136 Rector Street, Perth Amboy, New Jersey 08861. Petitioner and her husband, Allan Gochal, were divorced by decree of a New Jersey court in 1996. An amended decree was filed in 1998 wherein as part of the property settlement, petitioner received the Middle Smithfield Township property.

(4) Petitioner’s former husband deeded the property to her in 1998. (Petitioner’s exhibit no. 2.) Petitioner forwarded the signed and acknowledged deed to an attorney in Monroe County along with filing fees. However, the attorney advised her that the filing fees would be deducted from an outstanding legal bill and until the petitioner forwarded an additional $700 the deed would not be recorded. The deed is presently still in the attorney’s file.

(5) Plaintiff’s former husband, Allan Gochal, moved to Florida in 1997.

(6) Petitioner received the tax bills and paid all real estate taxes after the divorce through 2004.

(7) In September of 2005, unknown to petitioner, her former husband notified the Monroe County Tax Assessment Office of a change of address. (Petitioner’s exhibit no. 4.)

(8) While petitioner’s name was nowhere on the address change, all tax notices to her and her former husband from that date were then forwarded to his De Bary, Florida address. Petitioner received no notice of the tax sale or judicial sale. Petitioner did not become aware that the property was sold at judicial sale until sometime in May of 2006 when a neighbor who was interested in purchasing the property contacted her and advised her that the property had been sold.

(9) On September 27,2006, petitioner filed exceptions to the April 2006 judicial sale and a petition to set aside the sale alleging that the tax claim bureau failed to follow the provisions of the Real Estate Tax Sale Law with respect to notice.

(10) On February 7, 2007, this court held a hearing and testimony was taken. The petitioner was represented at the hearing by Aaron DeAngelo, Esquire and W.P. Investments LLC was represented by Anthony Roberti, Esquire. The tax claim bureau did not appear and was not represented by counsel at the hearing.

(11) Petitioner and buyer submitted as a joint exhibit a certified copy of the records of the Monroe County Tax Claim Bureau regarding notice and advertising of this particular property.

II. DISCUSSION

Our Commonwealth Court in the case of In re Tax Claim Bureau, Appeal of Stephens, 53 Pa. Commw. 423, 419 A.2d 206 (1980), reversed the order of the Greene County trial court who declared a tax sale to be valid. In that case, the husband and wife were not living together at the same address and were divorced a few months before the sale, but notices were sent to husband when he unilaterally requested the taxing authorities to change the property owner’s address.

In our case, petitioner’s former husband unilaterally requested an address change for property in which he no longer had ownership interest. Fiore v. Fiore, 405 Pa. 303, 174 A.2d 858 (1961) (although conveyance not recorded, recording of deed is not essential to its validity or to the transition of title); Matter of Pentrack’s Estate, 486 Pa. 237, 405 A.2d 879 (1979) (title to real estate may be passed by delivery of a deed without undertaking a recording).

The records of the Monroe County Tax Claim Bureau also show that the bureau was on notice in August of 2005 that Allan Gochal resided in De Bary, Florida and “Vera” Gochal resided in Perth Amboy, New Jersey. (See joint exhibit no. 1, p. 50.) Yet, the notices of the sale mailed in February of 2006 were to be sent to petitioner at her former husband’s Florida address. (Joint exhibit no. 1, pp. 16? 17.) The bureau’s file also reflects that while a notice was to be sent to petitioner, both her notice and the notice to Allan Gochal were addressed to Allan and signed for by him on February 27, 2006. (Joint exhibit no. 1, pp. 1, 2.) Thus, petitioner had no notice of the sale.

It has been said many times that the strict provisions of the Real Estate Tax Sale Law are never meant to punish taxpayers who omitted through oversight or error (from which the best of us are never exempt) to pay their taxes. Tax acts were rather meant to protect the local government against willful, persistent long-standing delinquents for whom we have no sympathy, and to whom the appellate court decisions have consistently given short shrift. Ross Appeal, 366 Pa. 100, 76 A.2d 749 (1950). Obviously, the notice provisions are there to assure that no one is deprived of property without due process of the law and while we do not disagree with the buyer that the bureau is under no duty to determine whether a married couple is now divorced, the fact remains that the bureau is under a duty to give notice to each property owner of a pending sale. That was not done here. The fair implication from the record in the instant case is that Mr. Gochal unilaterally requested the tax authorities to change the property owner’s address many years after the divorce. The address to which the notices were sent is his address where he resided. One partner to a former marriage cannot deprive another of property rights by acting for himself to the detriment of the other by changing an address for tax purposes. Whatever the bureau may or may not have been required to do by way of inquiry in these particular circumstances, the law cannot permit a person to be deprived of her property without due and timely notice. That is precisely what happened here. To pursue the issue of who was at fault misses the mark. The real issue is whether there was due and timely notice to the petitioner and it is clear that there was not.

The only argument the buyer seems to make is that while Vera Gochal has filed exceptions to the sale, Allan Gochal has not and therefore the buyer bought Allan GochaTs interest at the tax sale. As we stated above, Allan Gochal had no interest in this property at the time of the tax sale. He deeded the property, delivered the deed and gave up any interest he had in the property many years before. The fact that the deed has not been recorded is of no relevance. Accordingly, we enter the following order.

ORDER

And now, February 22, 2007, the petition of Vera M. Gochal to set aside the judicial sale of her property situated in Middle Smithfield Township, Monroe County, Pennsylvania, identified as Tax Code Parcel 9/10A/1/97, is granted.

The Monroe County Tax Claim Bureau shall apply all funds on deposit toward the payment of all outstanding taxes and costs of the sale and return to the respondent, W.P. Investments LLC, all sums paid by it at the time of the sale.


author: BLACK, J.,

text:
    Gambler v. Reinheimer

      C.P. of Lehigh County,
    no. 2004-C-2729.

      John O. Stover Jr., for plaintiffs.

      Thomas J. Turczyn, for defendants.
    December 13, 2006
   BLACK, J.,

Now, December 13, 2006, after trial without a jury held December 11, 2006, the court finds in favor of the defendants, George E. Reinheimer and Verna G. Reinheimer, against the plaintiffs, Roy Gambler and Deborah Gambler, based on the following findings and conclusions:

(1) The defendants, George E. Reinheimer and Verna G. Reinheimer (Sellers), did not make intentional, negligent or fraudulent misrepresentations to the plaintiffs, Roy Gambler and Deborah Gambler (Buyers), regarding the condition of the septic system at the property located at 1576 Blue Barn Road, South Whitehall, Lehigh County, Pennsylvania.

(2) In order for Buyers to succeed on a cause of action for fraudulent misrepresentation, they must demonstrate by clear and convincing evidence (1) a misrepresentation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity, or recklessness as to whether it is true or false; (4) with intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. Bortz v. Noon, 556 Pa. 489, 499, 729 A.2d 555, 560 (1999); Blumenstock v. Gibson, 811 A.2d 1029 (Pa. Super. 2002).

(3) Buyers did not prove by clear and convincing evidence that Sellers misrepresented the condition of the septic system on the property.

(4) Under the Real Estate Seller Disclosure Law (RESDA) the seller of residential real estate must deliver a written property disclosure statement to the purchaser that reveals any material defects in the property. A material defect is defined as “[a] problem with a residential real property or any portion of it that would have a significant adverse impact on the value of the property or that involves an unreasonable risk to people on the property. The fact that a structural element, system or subsystem is near, at or beyond the end of the normal useful life of such a structural element, system or subsystem, is not itself a material defect.” (emphasis added)

(5) The septic system on the property is approximately 45 years old. Although the life of a septic system is generally around 20 years, the age of this system does not mean that it was in failure; nor does it permit the inference that Sellers knew or had reason to know of any problem with the system at the time of the transaction.

(6) Under RESDA, Sellers were not obligated to make any specific investigation or inquiry before completing the disclosure statement. Sellers cannot be held liable for any error, inaccuracy or omission of any information delivered pursuant to RESDA if the seller had no knowledge of the error, inaccuracy or omission, or if the error, inaccuracy or omission was based on a reasonable belief that a material defect or other matter not disclosed had been corrected.

(7) During the period of time that Sellers owned the property the septic system appeared to be functioning normally.

(8) On one occasion in 1996 Mr. Reinheimer learned that some water was trickling back into the septic tank from the drainpipe. However, he was led to believe that this was not a problem, and the system continued to function normally thereafter.

(9) Mr. Reinheimer’s testimony that he meticulously maintained his property, including his septic system, is credible. If Mr. Reinheimer had known of any malfunction with the septic system, at or before the time of settlement with Buyers, he would have corrected the problem.

(10) Sellers properly disclosed the existence of a gray water system when they reported that there was a cesspool on the property in paragraph 8(d) of Seller’s Property Disclosure Statement. Additionally, the property had two pipes in the backyard sticking out of the ground, one for the septic tank and one for the gray water septic system, which were visible to Buyers on each of their three visits to the property. Mr. Reinheimer also pointed out the gray water system to Mr. Gambler on October 24, 2002, during the pre-settlement inspection.

(11) In the Sellers’ Property Disclosure Statement the Sellers disclosed all material information affecting the property of which they knew or had reason to know. Hence, Sellers did not violate RESDA.

(12) In order to establish that Sellers violated the Unfair Trade Practices and Consumer Protection Law (UTPCPL) by engaging in fraudulent or deceptive conduct which caused a misunderstanding, Buyers must prove all the elements of common-law fraud. Sewak v. Lockhart, 699 A.2d 755, 761 (Pa. Super. 1997). Since we have concluded that Buyers failed to prove by clear and convincing evidence that Sellers engaged in any act of common-law fraud, Buyers’ claim under the UTPCPL must also be rejected.

(13) There is no evidence that Sellers were negligent in failing to disclose information about the property to Buyers. In the absence of a duty to disclose an unknown defect, there can be no negligence.

(14) There is no basis for a breach of contract claim. Buyers arranged for a termite inspection and a test of the potability of the well water prior to settlement on the property. However, they expressly waived their right under paragraph 13(B) of the Standard Agreement for the Sale of Real Estate to have a pre-closing inspection of the sewage disposal system. Buyers also signed a release in paragraph 25 of the agreement that provided as follows:

“Buyer hereby releases, quit claims and forever discharges Seller . . . from any and all claims, losses or demands, including, but not limited to, personal injuries and property damage and all of the consequences thereof, whether now known or not, which may arise from... any defects in the individual on-lot sewage disposal system or deficiencies in the on-site water service system, or any defects or conditions on the property. This release will survive settlement.” (emphasis added)

(15) By reason of the foregoing, the defendants, George E. Reinheimer and Verna G. Reinheimer, are entitled to the entry of judgment in their favor against the plaintiffs, Roy M. Gambler and Deborah A. Gambler.

      .68 Pa.C.S. §7303.

        . Id., §7102.

      . Id, §7309.


author: QUINOÑES ALEJANDRO, J.,

text:
    Doomer v. DiDonato
    CP. of Philadelphia County,
    May Term, 2004,
    no. 4108.

      Brian J Grady, for plaintiffs.

      Scott W. Reid, for defendant DiDonato.

      Thomas A. Kuzmich, for defendant Philadelphia Stock Exchange.
    October 20, 2006
   QUINOÑES ALEJANDRO, J.,

INTRODUCTION

This appeal involves a matter of first impression in Pennsylvania stemming from an assault and battery inflicted by a stock trader (Ralph DiDonato) against another stock trader (William J. Dooner) while employed at the Philadelphia Stock Exchange (PSX). As a result of the attack, plaintiff-husband and his wife, Maureen Dooner, filed on May 28, 2004, a civil action against defendant DiDonato and defendant PSX averring counts of assault and battery, negligence, negligent supervision, intentional infliction of emotional distress and punitive damages. Plaintiff-husband claims that in the assault, defendant DiDonato yanked him downward causing him to suffer serious injuries. A jury subsequently found in favor of plaintiffs and against both defendants and assessed comparative negligence among the parties.

Thereafter, defendant PSX only filed a post-trial motion for judgment n.o.v. and/or a new trial, which was denied by this trial judge. Dissatisfied, defendant PSX filed this appeal essentially contending that this trial judge incorrectly denied its post-trial motion and erred when finding that plaintiffs’ claims were not federally preempted, when ruling on numerous evidentiary matters, and when charging the jury. This trial judge disagrees.

RELEVANT FACTUAL AND PROCEDURAL HISTORY

It is reasonable to infer that the jury considered the following relevant facts when rendering its verdict:

At the time of the incident, plaintiff-husband was employed as a SOX trader working on the floor of defendant PSX. Defendant DiDonato worked as a registered equity options trader for another company also on the floor of defendant PSX. Defendant PSX is a national securities exchange, a self-regulating organization, established and governed by Congress and the National Exchange Act, and registered with the Securities and Exchange Commission (SEC) pursuant to the Securities Exchange Act of 1934.

On December 4, 2002, defendant DiDonato had arrived at the trading floor earlier than plaintiff-husband, set up his computer and left the immediate area. A few minutes later, plaintiff-husband arrived, moved defendant DiDonato’s computer and situated himself in the spot where defendant DiDonato had previously set up his computer. He did so relying on an alleged practice in the work culture of defendant PSX that if a spot was unattended, it was open for the taking. When defendant DiDonato returned to his computer he found plaintiff-husband in his spot. Angered, defendant DiDonato grabbed plaintiff-husband from behind, yanking him backward and causing him to strike his head, which briefly rendered him unconscious. When he regained consciousness he complained of being disoriented, dizzy, and having a headache and pain in his back and neck.

Robert T. Roth, plaintiff-husband’s immediate supervisor, approached him to ascertain his condition. A member of defendant PSX, Barry Nobel, asked Roth to make sure plaintiff-husband was taken to a hospital for medical attention. Since no one had called 911 for medical assistance, Roth called a cab and accompanied plaintiff-husband to the Thomas Jefferson University Hospital. There, plaintiff-husband was admitted and underwent a CAT scan and a MRI. Plaintiff-husband left the hospital against medical advice after receiving a telephone call from his crying wife who told him that she had just learned that her father had been diagnosed with lung cancer and had six months to live. Prior to leaving the hospital, plaintiff-husband received a prescription for Tylenol with codeine, Vicodin and Flexeril.

When plaintiff-husband arrived at his home, he immediately called his family physician for an appointment. He was subsequently diagnosed with whiplash and a sprain. His physician also prescribed Tylenol with codeine, Vicodin and Fexeril. Plaintiff-husband continues to take Flexeril, a muscle relaxant, and Naproxen, to sleep. He has also received epidural injections in the neck administered by a Dr. Hale, a specialist in pain management. Additionally, plaintiff-husband has unsuccessfully undergone a series of physical therapy sessions to relieve his pain.

As a result of the injuries suffered, Plaintiff-husband was unable to return to his employment as a stock trader. He remained unemployed for a period of 10 months before he obtained employment as a roofing estimator for Home Depot, at a significant decrease of income.

Testimony offered at trial by several witnesses described the work enviromnent on defendant PSX’s trading floor as hostile, competitive, cramped and violent.

Procedurally, plaintiffs filed this civil suit against defendant PSX, John Wallace and defendant DiDonato. By order dated February 28,2006, the Honorable Gregory E. Smith granted defendant Wallace’s motion for summary judgment and dismissed him, with prejudice, from the case.

Discovery ensued and a jury trial was scheduled. On March 7, 2006, after a five-day trial, the jury found in favor of plaintiffs and against both defendant PSX and defendant DiDonato in the amount of $1,800,000. The jury also assessed comparative negligence among the parties; to wit: plaintiff-husband was found to be 20 percent negligent, defendant DiDonato 30 percent negligent, and defendant PSX 50 percent negligent. Additionally, the jury returned a verdict in favor of plaintiff-wife for loss of consortium claim in the amount of $135,000.

On March 8,2006, plaintiffs filed a petition for delay damages. On March 13, 2006, defendant PSX filed a motion for post-trial relief. Oral argument was heard and by an order dated June 15, 2006, this trial court judge denied defendant PSX’s post-trial motion. By order dated June 16, 2006, this trial judge granted plaintiffs’ petition for delay damages and molded the verdict award to reflect plaintiff-husband’s comparative negligence (a reduction of $387,000) and the delay damages award (an addition of $72,501.50), for a total verdict award in the amount of $1,620,501.50.

On July 11,2006, defendant PSX filed the instant appeal with the Superior Court.

ISSUES

In response to an order issued on July 12, 2006, in accordance with Pennsylvania Rule of Appellate Procedure 1925(b), defendant PSX on July 25, 2006, filed of record and served onto this trial judge a statement of matters complained of on appeal and averred that this trial court erred and/or abused its discretion:

(1) in failing to find that the plaintiffs’ claims against defendant Philadelphia Stock Exchange were federally preempted, in that the conduct at issue was governed by the Rules of the Philadelphia Stock Exchange, which were approved by the Securities and Exchange Commission through its quasi-legislative authority as granted it by the United States Congress and, consequently, in denying defendant Philadelphia Stock Exchange’s motion for summary judgment, motion for nonsuit, motion for direct verdict and motion for post-trial relief on that basis;

(2) in failing to find that defendant Philadelphia Stock Exchange, as a possessor of land not held open to the public, did not have a duty to protect against the criminal acts of third parties nor a duty to provide a security program beyond any gratuitous security program it undertook, but rather only a duty to protect individuals from injury arising out of its own negligent failure to maintain the premises in a safe condition;

(3) in allowing Ira Somerson, plaintiffs’ liability expert, to testify to improper conclusions of law regarding the duty of care owed by the Philadelphia Stock Exchange;

(4) in providing conflicting jury charges regarding the duty of care owed by the Philadelphia Stock Exchange, namely plaintiffs’ proposed points 23, 24 and 25, since they provided for a much higher standard of care than that imposed by Pennsylvania law on a possessor of land that is not held open to the public;

(5) in permitting plaintiffs’ medical expert, Dr. Gene Salkind, to testify over defendant Philadelphia Stock Exchange’s objections that plaintiff William Dooner is medically incapable of working as a trader at the Philadelphia Stock Exchange, despite the fact that the opinion was not set forth in Dr. Salkind’s expert report and caused unfair surprise, and consequently, in denying defendant Philadelphia Stock Exchange’s motion for post-trial relief on that basis;

(6) in failing to find that the testimony of Terry Leslie, plaintiffs’ vocational expert, regarding lost wages and/ or lost earning capacity was improperly speculative in nature because he could not differentiate what portion of plaintiff William Dooner’s lost earning capacity was attributable to his alleged neck injury for which he was seeking recovery at trial and what portion of his lost earning capacity was attributable to his unrelated back condition;

(7) in allowing Mr. Leslie’s testimony which was improper based upon the inadmissible testimony of Dr. Gene Salkind, and, consequently, in denying defendant Philadelphia Stock Exchange’s oral motion in limine, motion for nonsuit, motion for directed verdict and motion for post-trial relief on that basis;

(8) in failing to enter a directed verdict against defendant Ralph DiDonato based on his admission that he committed an assault and battery; to include a proximate cause/substantial factor question on the verdict sheet regarding defendant Ralph DiDonato’s admitted assault and battery; charging the jury on the issue of negligence as to all defendants, notwithstanding defendant Ralph DiDonato’s admitted assault and battery, which caused confusion to the jury and, consequently, in denying defendant Philadelphia Stock Exchange’s motion for directed verdict and motion for post-trial relief on that basis; and

(9)in failing to find that the jury’s verdict was contrary to the law, that the jury’s verdict was against the weight of the evidence, that the jury’s verdict was excessive, and, consequently, in denying defendant Philadelphia Stock Exchange’s oral motion in limine, motion for nonsuit, motion for directed verdict and motion for post-trial relief on that basis.

LAW AND DISCUSSION

Succinctly, defendant PSX essentially avers that this trial judge erred and/or abused her discretion regarding the following issues: federal preemption, liability of the possessor of land, challenges to expert testimony, improper jury instructions, and failure to grant a directed verdict against defendant DiDonato; and is, therefore, entitled to either a new trial or judgment n.o.v. This trial judge disagrees and will address defendant PSX’s arguments seriatim.

It is undisputed that the decision to grant and/or deny a request for a new trial is within the sound discretion of the trial court. An appellate court may not disturb a trial court’s ruling unless the trial court palpably abused its discretion and/or committed an error of law. An abuse of discretion is not merely an error of judgment. An abuse of discretion occurs if, in reaching a conclusion, a law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence of record. However, an abuse of discretion may not be found merely because the appellate court might have reached a different conclusion. To be clearly erroneous, the trial court’s action requires a showing of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or lack of support.

Anew trial is warranted where the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice. However, a new trial should not be granted because of a mere conflict in testimony or some irregularity which occurred during trial or because the trial judge, on the same facts, would have arrived at a different conclusion. Each review of a challenge to a new trial order must begin with an analysis of the underlying conduct or omission by the trial court that formed the basis for the motion. That is, the trial court must decide whether any factual, legal, or discretionary mistake occurred during trial; and if so, determine whether the mistake warrants the granting of a new trial, or whether it was merely a harmless error The moving party must demonstrate that prejudice was suffered because of the mistake.

Federal Preemption

Defendant PSX’s principal argument is that as a national securities exchange registered with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, all state tort claims against it are federally preempted. Defendant PSX further contends, in general terms and without identifying such, that the bylaws and rules of the Philadelphia Stock Exchange, which were approved by the SEC and authorized by the United States Congress, federally preempt plaintiffs’ claims and strip this trial court of jurisdiction.

Research on this issue did not uncover any Pennsylvania case on point, statute, or regulation regarding the preemption of state tort claims in matters involving an organization regulated by federal statute, such as defendant PSX. Therefore, a very brief analysis of the law of preemption, the legislative history of the Securities and Exchange Act of 1934, and existing persuasive case law of other jurisdictions follows to support this trial judge’s opinion that preemption does not exist.

The preemption doctrine, which has its roots in the Supremacy Clause, United States Constitution, Article VI, Clause 2, requires an examination of congressional intent. Preemption “is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.” Absent explicit preemptive language, Congress’ intent to supersede state law altogether may be inferred because “[the] scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it,” because “the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject,” or because “the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose.”

Even where Congress has not completely displaced state regulation in a specific area, state law is nullified to the extent that it actually conflicts with federal law. Such a conflict arises when “compliance with both federal and state regulations is a physical impossibility,” or when state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

The Securities Exchange Act of 1934 was promulgated “in order to protect interstate commerce, the national credit, the federal taxing power, to protect and make more effective the national banking system and Federal Reserve System, and to insure the maintenance of fair and honest markets in such transactions.” Courts in various jurisdictions have explained the purpose of the Securities Exchange Act as follows: .

Supreme Court. The Securities Exchange Act of 1934 is not intended to circumscribe the courts’ power to grant appropriate remedies. One of the principal purposes of the Securities Exchange Act is to protect investors against manipulation of stock prices through regulation of transactions upon securities exchanges and in over-the-counter markets.

New York. The purpose of the Securities Exchange Act is to regulate securities exchanges and the securities market. The primary purpose of the Securities Exchange Act is to protect customers of stock exchanges; that is, public investors.

District of Columbia. The intent of the Securities Exchange Act is protection of investors, markets, and the public generally by means of full disclosure.

California. The Securities Exchange Act has the dual purpose of providing regulation of securities and over-the-counter markets and protecting investors from inequitable and unfair practices in such a market.

In Merrill Lynch v. Ware, 414 U.S. 117, 118 (1973), the United States Supreme Court held that a California wage statute was not preempted by the Securities Exchange Act because it: (1) did not fall within the mandate of the Securities Exchange Act to protect investors and to ensure fair trade practices, (2) could not be categorized as part of a need for uniform national regulation, and (3) did not unduly interfere with federal regulation of the securities industry or unconstitutionally burden interstate commerce. Absent repealing or exclusivity provisions, state law conflicting with a stock exchange’s self-regulation under the Securities Exchange Act of 1934 should be preempted by the exchange’s regulations only to the extent necessary to protect the achievement of the aims of the Securities Exchange Act. Id. at 119.

Here, defendant PSX contends that as a self-regulating organization pursuant to the laws of Congress and the SEC Act, it is required to conduct disciplinary proceedings when a member, or a person associated with a member, is suspected of violating federal securities laws or internal rules or regulations. In addition, defendant PSX notes that the market surveillance program, as approved by the SEC, is responsible for handling any disciplinary issues within the exchange. Therefore, based on these assertions, defendant PSX concludes that plaintiffs’ state tort claims are preempted by federal law.

In this trial judge’s opinion, while defendant PSX’s citation of the law may be correct, its conclusions, as applied to the facts in this case, are erroneous. This trial judge notes that this is not a case of preempting disciplinary action against the traders involved in this altercation. The instant matter is one of assault and battery by a trader resulting from an alleged atmosphere of hostility and violence. In reviewing the Securities Exchange Act of 1934 and its amendments, it is evident that the purpose of the Act was to establish requirements for self-regulating organizations in the securities market. The Act seeks to regulate the stock exchanges and the relationships of the investing public to corporations which invite public investment by listing on such exchanges. Contrary to what defendant PSX contends, the rules and regulations for self-regulating organizations are designed to protect investors, and do not address tort claims in state court. The market surveillance program promulgated by the self-regulation organization solely focuses on trading activities, seeking to detect suspect transactions. See Act §2.03. Furthermore, chapter one of the Act describes at length the types of investigations regularly conducted by the commission, concerning issues such as sales of unregistered securities and misrepresentations made by buyers. State tort claims, such as those alleged in this case, are not addressed.

Plaintiffs’ averments against defendant PSX (negligent supervision, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence) clearly do not fall within the ambit of protecting investors in the securities market. These claims against defendant PSX center on the environment on its trading floor. Plaintiffs’ claims do not interfere with federal regulation of the securities industry, nor do these burden interstate commerce. Consequently, this trial judge opines that there is no federal preemption to plaintiffs’ tort action against defendant PSX.

Jury Instructions

Defendant PSX next contends that an error of law and / or abuse of discretion was committed when this trial judge failed to find that defendant PSX did not have a duty to protect against criminal acts of third parties or to provide a security program beyond any gratuitous security program defendant PSX voluntarily undertook. Specifically, defendant PSX avers that this trial judge erred and/or abused its discretion in providing conflicting jury charges regarding the duty of care owed by the Philadelphia Stock Exchange, namely plaintiffs’ proposed points 23, 24 and 25, “since they [sic] provided for a much higher standard of care than that imposed by Pennsylvania law on a possessor of land that is not held open to the public.” This trial judge opines that these arguments are without merit.

Plaintiffs’ proposed points 23, 24 and 25 read as follows:

“(23) The standard or level of care owed by an occupier of land to a person who entered the land depends on whether the person who entered was an invitee, a licensee or a trespasser. In this case you heard testimony that Mr. Dooner paid fees to the defendant, Philadelphia Stock Exchange, for the right to do business on their premises. That means that, for purposes of duty, Mr. Dooner is to be considered a business invitee. A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the occupier of the land.

“(24) An occupier of land is required to use reasonable care in the maintenance and use of the land, and to protect invitees from foreseeable harm. An occupier of land is also required to inspect the premises and to discover dangerous conditions. An occupier of land is liable to invitees for any harm that the occupier should have anticipated, regardless of whether the danger is known or obvious.

“(25) Negligence — Failure to prevent intentional harm to business invitees. Negligence or carelessness is the failure to use the ordinary care that a reasonable person would have used under the circumstances. Specifically, the Philadelphia Stock Exchange has a duty to use reasonable care to find out if one of their traders is being harmed or is likely to be harmed by others on the premises [sic] must protect him or her. The failure to do so is negligence. You must, therefore, decide whether the defendant knew or should have known that there was a likelihood of assaultive behavior occurring on their premises and whether or not they took reasonable steps to protect the plaintiff against it. In making this decision, you may consider the nature of the defendant’s business and the defendant’s past experience. You may determine from the evidence whether the Philadelphia Stock Exchange knew or should have known from past experience that there was a likelihood of conduct from the part of third persons in general that was likely to endanger the safety of Mr. Dooner even though the Philadelphia Stock Exchange had no reason to expect it on the part of any particular individual. If you determine that the nature of the trading business, or past experience, was such that the Philadelphia Stock Exchange should reasonably have anticipated careless or criminal conduct on the part of third persons, either generally, or at any particular time, you may find that the Philadelphia Stock Exchange was under a duty to take precautions against that conduct and to provide a reasonably sufficient number of servants to afford a reasonably [sic] protection.”

This trial judge specifically charged that defendant PSX’s duty of care was:

“As I stated negligence, or carelessness is failure to use the ordinary care that a reasonably prudent person would use under the circumstances. Here specifically the defendant, Philadelphia Stock Exchange, has a duty to use reasonable care to find out if one of their traders is being harmed or is likely to be harmed by others on the premises and must protect him or her. The failure to do so is negligence. You must decide whether the defendant, Philadelphia Stock Exchange, knew or should have known that there was a likelihood of assaultive behavior occurring on their premises and whether or not they took reasonable steps to protect the plaintiff against it. In making this decision, you may consider the nature of the defendant’s business and the defendant’s past experience. You must determine from the evidence whether the defendant, Philadelphia Stock Exchange, knew or should have known from past experience that there was a likelihood of conduct from the part of third persons in general, that there was likely to endanger the safety of plaintiff even though defendant, Philadelphia Stock Exchange, had no reason to expect it on the part of any particular individual. If you determine that nature of the trading business or past experiences was such that the defendant, Philadelphia Stock Exchange, should reasonably have anticipated careless or criminal conduct on the part of third persons, either generally or in particular, you may find the defendant, Philadelphia Stock Exchange, was under a duty to take precautions against that conduct and to provide a reasonable sufficient number of employees to afford a reasonable protection.

“The standard of care or level of care owed by an occupier of land, such as the defendant, Philadelphia Stock Exchange, to a person, such as the plaintiff, who entered the land depends upon whether the person who entered was an invitee, a licensee or a trespasser. In this case, you heard that the plaintiff paid fees to defendant, Philadelphia Stock Exchange, for the right to do business on their premises. That means that for the purpose of duty, the plaintiff is to be considered a business invitee, and a business invitee is a person who is invited to enter or remain on the land for a purpose directly or indirectly connected with business dealings with the occupier of the land, such as defendant Philadelphia Stock Exchange. The occupier of land — and these are just terms of art, so when I say the occupier of the land, I’m referring to the defendant, Philadelphia Stock Exchange. The occupier of the land is required to use reasonable care in the maintenance and use of the land and to protect invitees from foreseeable harm. An occupier of land is also required to inspect the premises and to discover dangerous conditions. An occupier of land is liable to the invitee for any harm that the occupier should have anticipated, regardless of whether the danger is known or obvious.”

At the conclusion of the jury instructions defendant PSX made no objection to the jury charges. It is axiomatic that, in order to preserve an issue for review, litigants must make timely and specific objections during trial or at the time of jury instructions, and raise the issue in post-trial motions. Granting or denying an untimely objection lies in the discretion of the trial court. Requiring a litigant to make a timely, specific objection during trial ensures that the trial court has a chance to correct alleged trial errors. Waiver is indispensable to the orderly functioning of our judicial process; it is a means of promoting jurisprudential efficiency by avoiding appellate court determinations of issues which the appealing party has failed to preserve. In this trial judge’s opinion, by having failed to timely object to the jury instruction, defendant PSX waived this appellate issue.

Notwithstanding this waiver, the Restatement (Second) of Torts, section 343, provides that:

“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

“(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

“(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

“(c) fails to exercise reasonable care to protect them against the danger.”

An invitee must prove either the proprietor of the land had a hand in creating the harmful condition, or had actual or constructive notice of such condition. If the harmful transitory condition is traceable to the possessor or his agent’s acts, a plaintiff need not prove any notice in order to hold the possessor accountable for the resulting harm.

Here, the trial testimony from various witnesses described what they perceived to be a hostile, cramped environment, which festered tension and unhealthy competition. Under the circumstances, defendant PSX’s argument is without merit.

Expert Opinions

Defendant PSX next contends that this trial court erred in allowing the opinion testimony of Plaintiffs’ experts regarding the duty of care owed by defendant PSX, (the opinion of Ira Somerson), the extent of his injuries, (Dr. Gene Salkind’s opinion), and the amount of lost wages and/or lost earning capacity (Terry Leslie’s opinion).

With regard to the duty of care argument, defendant PSX contends that this objection was preserved by its request for a Frye hearing regarding the methodology used by Somerson in reaching his expert opinion. This Frye motion was denied by this trial judge as an improperly and untimely filed motion. Notwithstanding this trial judge’s ruling, during the trial proceedings defendant PSX objected to Somerson’s expert testimony based on the contention that he would be testifying to a standard of duty that did not exist under the law. The objections were overruled. Somerson opined that defendant PSX responded to the likelihood of incidents of workplace violence and assaults occurring on the trading floor with an entirely inadequate security program that was significantly below the standard security practice or standard of care. Somerson’s opinions were based upon the standard in the industry and the quality of defendant PSX’s security program. Clearly, the jury was free to accept or reject these opinions. This trial judge opines that these opinions were not of the nature that required Frye considerations. Therefore, in this trial judge’s opinion, the motion was properly denied, and this argument is without merit.

As to the testimony of Dr. Salkind regarding plaintiff-husband’s medical inability to work as a stock trader, defendant PSX contends that his opinions should have been precluded because these were not set forth in the expert report, and caused unfair surprise. Dr. Salkind’s testimony had been videotaped for trial. After reviewing the transcript of the videotaped testimony, this trial judge determined that defendant PSX did not object to the questions and responses regarding plaintiff-husband’s ability to perform as an options trader during the expert’s testimony and, therefore, failed to preserve this issue for trial. Defendant PSX acknowledged that there were no objections made during Salkind’s testimony. This trial judge opines that there was no abuse of discretion exercised when overruling defendant PSX’s objection to Dr. Salkind’s testimony. Furthermore, the expert opinions were not a surprise to defendant PSX since there was a claim for lost wages.

As to the testimony of Mr. Leslie, plaintiffs’ vocational expert, regarding the lost wages and/or lost earning capacity claims, defendant PSX contends that this trial court erred and/or abused its discretion in allowing his opinion, as it “was improperly speculative in nature because he could not differentiate what portion of plaintiff-husband’s lost earning capacity was attributable to his alleged neck injury and what portion of his lost earning capacity was attributable to his unrelated back condition.” Additionally, defendant PSX contends this trial court erred and/or abused its discretion in failing to preclude Leslie’s testimony because it was based upon the inadmissible testimony of Dr. Gene Salkind.

The general rule in the Commonwealth of Pennsylvania is that a plaintiff bears the burden of proof as to damages. The determination of damages is a factual question to be decided by the fact-finder. The fact-finder must assess the testimony by weighing the evidence and determining its credibility and by accepting or rejecting the estimates of the damages given by the witnesses. Although the fact-finder may not render a verdict based on sheer conjecture or guesswork, it may use a measure of speculation in estimating damages. The fact-finder may make a just and reasonable estimate of the damage based on relevant data and, in such circumstances, may act on probable, inferential, as well as direct and positive proof.

In this case, Mr. Leslie based his expert testimony on the medical documents and reports, including the report of Dr. Salkind and opinion of the permanent nature of the physical disabilities sustained by plaintiff-husband due to the assault, and on a personal vocational interview and assessment of plaintiff-husband. Thus, a proper foundation was laid for the vocational expert opinion. Further, plaintiff-husband testified that due to the assault he could no longer perform the duties demanded of him as a stock trader, testimony supported by Mr. Roth, plaintiff-husband’s former supervisor. Based upon the evaluation of all of the evidence presented, the jury had the prerogative to accept or reject this opinion, and make an informed estimate of plaintiff-husband’s lost earning capacity. Again, in this trial judge’s opinion, no error was committed that warrants a granting of a new trial and/or judgment n.o.v.

Jury Verdict

Lastly, defendant PSX contends that this trial court erred and/or abused its discretion “in failing to find that the jury’s verdict was contrary to the law, that the jury’s verdict was against the weight of the evidence, that the jury’s verdict was excessive, and, consequently, in denying defendant PSX’s oral motion in limine, motion for nonsuit, motion for directed verdict and motion for post-trial relief on that basis.”

A jury award can be set aside only when it appears to have been the product of passion, prejudice, partiality, or corruption, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff. Only where the jury’s verdict is so contrary to the evidence as to “shock one’s sense of justice” should a new trial be awarded. If the verdict bears a reasonable resemblance to the proven damages, it is not the function of the court to substitute its judgment for the jury’s. However, when the injustice of the verdict “stand(s) forth like a beacon,” a court should not hesitate to find it inadequate and order a new trial.

A trial court has the authority to order a remittitur of an excessive jury verdict. However, the trial court should not interfere with functions of the jury and undertake to determine facts, which is exclusively the province of the jury. When it is apparent that the jury has returned a verdict excessive in amount and clearly beyond what the evidence warrants, the trial court should set aside or reduce the verdict. Conversely, if the verdict is supported by evidence, it must be permitted to stand where there is nothing to suggest that the jury was in any way guided by partiality, prejudice, mistake or corruption. Therefore, it is the duty of the court to enforce the jury’s verdict unless the circumstances cry out for judicial interference.

As to the jury’s assessment of damages, at the time of the assault plaintiff-husband was 35 years old and earning an annual average salary of $95,304 plus additional benefits. Projected over the remainder of his work-life expectancy of an additional 27.01 years, Mr. Leslie opined that plaintiff-husband’s projected lost earnings capacity was approximately $2,778,352 plus an additional $97,334 in fringe benefits. Mr. Leslie further opined that assuming plaintiff-husband continues at a current level of employment, he will earn approximately $1,462,024 over his work-life as well as an additional $124,072 in fringe benefits. The calculated difference in his projected lost earnings capacity and earnings is approximately $1,725,590.

The jury also considered the loss of household services calculated to be approximately $93,653, and plaintiff-husband’s noneconomic damages, such as his pain and suffering and loss of life’s pleasures. It was the jury’s duty to assess a value to the noneconomic damages if that was its decision. Based on these elements of damage, the record clearly supports the jury award of $1,800,000.

It is, therefore, this trial judge’s opinion that the jury’s verdict in this case is supported by the evidence of record and is not the product of sympathy, prejudice, partiality, mistake or corruption. This trial judge finds no reason either to remit the award, order a new trial, or grant a judgment n.o.v.

As a final observation to defendant PSX’s argument that a directed verdict should have been issued against defendant DiDonato, no error was committed. While defendant DiDonato admitted to the assault, he did not accept full responsibility for the extent of the injuries suffered. It appears that the jury agreed with him.

CONCLUSION

Based on the foregoing discussion, this trial judge is of the opinion that no error was committed during the trial and/or when denying defendant PSX’s post-trial motion. This trial judge respectfully requests that this appeal be dismissed and the orders dated June 15,2006, be affirmed.

      . N.T. 2/27/06, 250:2-4.

        . Id. at 211:10-12.

      . Id. at 144:21-25 — 145:1-3.

      . N.T. 2/27/06, 268:1-6.

        . Id. at 269:4-15.

        . Id at 264:5-9, 274:11-20.

        . Id at 274:11-20.

      . Id. at 109:2-7.

        . Id at 110:2-11.

      . Id at 110:7-20.

      . Id. at 275:13-18.

      . Id. at 275:21-24.

      . Id. at 277:14-19.

      . Id. at 278:19-22.

      . Id at 279:21-23.

      . Id. at 16:7-15.

      . N.T. 2/28/06, 68:13-18.

      . N.T. 2/28/06, 19:5-21.

      . Id. at 20:4-6.

      . Id at 23:24-25 — 24:1-25.

      . N.T. 2/27/06, 89:8-13.

      . Andrews v. Jackson, 800 A.2d 959, 962 (Pa. Super. 2002), appeal denied, 572 Pa. 694, 813 A.2d 835 (2002). (citation omitted)

      . Neison v. Hines, 539 Pa. 516, 520, 653 A.2d 634, 636 (1995) (citations omitted); Andrews, 800 A.2d at 962.

      . See Fanning v. Davne, 795 A.2d 388, 393 (Pa. Super. 2002), citing Paden v. Baker Concrete Construction Co. Inc., 540 Pa. 409, 412, 658 A.2d 341, 343 (1995).

      . Fanning, 795 A.2d at 393.

      . Neison, 539 Pa. at 520, 653 A.2d at 636.

      . Harman ex rel. Harman v. Borah, 562 Pa. 455, 469, 756 A.2d 1116, 1123 (2000).

      . Harman, 562 Pa. at 467, 756 A.2d at 1122.

      . Id.

      . Id.

      . This Act may be cited as the Securities Exchange Act of 1934. See 15 U.S.C.S. §78a.

      . Fidelity Federal Savings and Loan Association v. de la Cuseta, 458 U.S. 141, 153, 102 S.Ct. 3014 (1982).

      . Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977).

      . Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).

      . Fidelity Federal Savings, 458 U.S. 141, 153 (1982).

      . Florida Lime & Avocado Growers Inc. v. Paul, 373 U.S. 132, 142-143 (1963).

      . Hines v. Davidowitz, 312 U.S. 52, 67 (1941).

      . 15 U.S.C.S. §78b.

      . Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970).

      . Ernst & Ernst v. Hochfelder, 425 U.S. 185, 47 L.Ed.2d 668, 96 S.Ct. 1375, CCH Fed. Secur. L. Rep. p. 95479 (1976), reh. den., 425 U.S. 986, 96 S.Ct. 2194, 48 L.Ed.2d 811 (1976).

      . Schoenbaum v. Firstbrook, 405 F.2d 200, CCH Fed. Secur. L. Rep. p. 92218 (CA2 NY 1968), rev’d on other grounds, en banc 405 F.2d 215, CCH Fed. Secur. L. Rep. p. 92327, 12 F.R. Serv. 2d 1233 (CA2 NY 1968), cert. den., 395 U.S. 906, 89 S.Ct. 1747, 23 L.Ed.2d 219(1969).

      . Lank v. New York Stock Exchange, 548 F.2d 61, CCH Fed. Secur. L. Rep. p. 95841 (CA2 NY 1977).

      . Graphic Sciences Inc. v. International Mogul Mines Ltd. 397 F. Supp. 112, CCH Fed. Secur. L. Rep. p. 94834 (D.C. Dist. Col. 1974).

      . Crofoot v. Sperry Rand Corp., 408 F. Supp. 1154, CCH Fed. Secur. L. Rep. p. 95611 (ED Cal. 1976).

      . Defendant PSX’s motion for post-trial relief, p. 6.

      . Id.

      . Schoenbaum v. Firstbrook, 405 F.2d 200, 206 (1968).

      . N.T. 3/2/06, 98:25, 99:2-25, 100:2-25.

      . Id. at 105:8-25, 106:1-15.

      . Harman ex rel. v. Borah, 562 Pa. 455, 471, 756 A.2d 1116, 1124 (2000), citing Takes v. Metropolitan Edison Co., 548 Pa. 92, 98, 695 A.2d 397, 400 (1997).

      . Id.

      . Id., citing Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 258, 322 A.2d 114, 116(1974).

      . Id. at 471, 756 A.2d at 112, citing Reilly v. SEPTA, 507 Pa. 204, 214, 489 A.2d 1291, 1296 (1985).

      . Restatement (Second) of Torts, §343.

      . Moultrey v. Great A & P Tea Co., 281 Pa. Super. 525, 535, 422 A.2d 593, 598 (1980).

      . Porro v. Century III Associates, 846 A.2d 1282, 1286 (Pa. Super. 2004), citing Myers v. Penn Traffic Co., 414 Pa. Super. 181, 186, 606 A.2d 926, 929 (1992).

      . N.T. 2/27/06, 11:3-25, 12:1-4.

      . Id at 101:5-15.

      . N.T. 2/28/06, 139:12-17.

      . N.T. 2/27/06, 102:24.

      . N.T. 3/1/06, 91:9-13.

        . Id. at 92:14.

      . Judge Technical Services Inc. v. Clancy, 813 A.2d 879, 885 (Pa. Super. 2002).

      . Id.

      . Id.

      . Id.

      . Id

      . Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1 (1994).

        . Id. at 225, 648 A.2d at 4.

      . Id.

      . Id. at 226, 648 A.2d at 4, citing Elza v. Chovan, 396 Pa. 112, 118, 152 A.2d 238, 241 (1959).

      . Daley v. John Wanamaker Inc., 317 Pa. Super. 348, 352, 464 A.2d 355, 357 (1983). (citation omitted)

      . Id.

      . Id.

      . Id.

        . N.T. 2/28/06, 186:9-21.

      . Id. at 196:21-22, 189:21-25, 190:2.