author: FRIEDMAN, T,

text:
    Hillgartner v. Port Authority of Allegheny County

      C.P. of Allegheny County,
    no. 05-11354.

      Edward A. Olds and Richard S. Matesic, for plaintiffs.

      Terrance R. Henne, for defendants.
    June 27, 2006
   FRIEDMAN, T,

INTRODUCTION

Plaintiffs appeal the order of this court dated January 26,2006, sustaining defendants’ preliminary objections and dismissing plaintiffs’ action, with prejudice. Plaintiffs raise two issues on appeal in their statement of matters complained of on appeal:

(1) whether the court considered matters dehors the record when ruling that the action was untimely; and

(2) whether the court erroneously concluded that a prior pending federal action barred the prosecution of this case in state court.

DISCUSSION

Defendant had filed its “preliminary objections to complaint raising issues of fact and brief in support of preliminary objections.” Plaintiffs’ response to those preliminary objections admitted many of defendants’ allegations, denied some, and stated that others were conclusions of law requiring no response.

The admitted facts, per plaintiffs ’ response, are as follows:

(1) Plaintiffs are females currently employed as telecommunications specialists with the Port Authority of Allegheny County Police Department.

(2) Plaintiffs have been in those positions since late 2000. Since 2000, Port Authority has hired 13 new police officers in the police department, and all 13 officers were male.

(3) In December of 2000, three males were hired as police officers by Port Authority.

(4) In January of2002, six males were hired as police officers by Port Authority.

(5) In May of 2003, two males were hired as police officers by Port Authority.

(6) In August of 2004, two more males were hired as police officers by Port Authority.

(7) On January 14,2002, plaintiff Hillgartner dual-filed complaints of discrimination with the Pennsylvania Human Relations Commission (PHRC) and the Equal Employment Opportunity Commission (EEOC), alleging violation of her rights under the Pennsylvania Human Relations Act (PHRA) and various federal statutes as a result of Port Authority’s refusal to hire her as a police officer.

(8) Plaintiff Blickenderfer likewise dual-filed complaints with the PHRC and EEOC on March 13, 2002.

(9) Plaintiffs allege that William McArdle, as chief of the Port Authority Police Department, intentionally discriminated against them in selecting males for the police officer positions.

(10) Jason Fincke is Port Authority’s chief of staff and McArdle’s direct supervisor.

(11) Plaintiffs further allege that Tawny a Moore-McGee, Port Authority’s general manager of human resources, and Inex Colon, Port Authority’s director of employment, deliberately changed the criteria and qualifications for the police officer position so as to deprive plaintiff Blickenderfer an opportunity to be hired as a police officer.

(12) Plaintiffs claim that defendants’ conduct was motivated by their discriminatory animus towards plaintiffs based upon their gender.

(13) Plaintiffs alleged myriad claims against the defendants including violations of PHRA (Count I), Fourteenth Amendment (Counts II, III and IV), First Amendment (Count V) and the Pennsylvania Constitution (Count VI). Plaintiffs’ federal claims are brought under section 1983.

(14) Plaintiffs’ state claims are brought directly under the PHRA and Pennsylvania Constitution.

(15) On July 3, 2002, plaintiffs filed a complaint in federal court at civil action number 02-1184, captioned Stangl and Koerner v. Port Authority of Allegheny County and McArdle.

(16) In their federal lawsuit, plaintiffs claimed that Port Authority and McArdle discriminated against them in hiring and retaliated against them in violation of the Fourteenth and First Amendments, respectively.

(17) Plaintiffs’ federal complaint was not amended to add PAT’s failure to hire plaintiffs in 2003 and 2004. (This is a disputed fact which the court had to decide in order to rule on defendant’s preliminary objections raising questions of fact.)

(18) On February 14, 2005, Judge Cercone granted summary judgment in favor of Port Authority on plaintiffs’ First Amendment retaliation claim.

(19) Plaintiffs admit filing a motion for leave and amended complaint to add claims under the PHRA and under Title VII.

(20) Plaintiffs expressly asserted that their “proposed [Title VII and PHRA] claims premised on the defendant’s failure to hire plaintiffs on the basis of gender are identical and entirely congruent with plaintiffs’ existing equal protection claims.”

(21) Judge Cercone denied plaintiffs’ motion. (The reasons are disputed; this court had to read Judge Cercone’s memorandum opinion to resolve that dispute.)

(22) Unsatisfied with Judge Cercone’s rulings in the federal action — and less than a week after Port Authority’s assertion there of immunity under the Eleventh Amendment, the appeal of which is pending — plaintiffs filed a writ of summons in this court on May 13, 2005.

Paragraphs 23-31 are described by defendants as “argument.” Although pointing out that no response was required, plaintiffs added one fact in their responses to paragraphs 28-31:

“Plaintiffs’ PHRC charge was filed within 180 days of the 2002 transaction.” (The court believes this refers to the hiring of six males as PAT police officers in January 2002.)

In their brief, plaintiffs argue that “Because the defendants are committed to depriving the plaintiffs of a decision on the merits in federal court, the plaintiffs had no choice but to attempt to preserve their claims in the courts of this Commonwealth. ” (emphasis added) Plaintiffs’ brief in opposition to defendants’ preliminary objections, p. 2.

This statement exemplifies the plaintiffs’ misunderstanding of the doctrine of lis pendens and the related doctrines of res judicata and collateral estoppel. Plaintiffs chose to proceed in federal court. As they began to lose critical motions there, they then sought to proceed simultaneously in state court, here in the Allegheny County Court of Common Pleas. This is a clear violation of the doctrine of lis pendens. Plaintiffs justify this by, in effect, contending that the adversary system left them “no choice but to maintain their action in this court.” Plaintiffs say that they must be allowed to proceed in both courts “[ujnless and until the defendants reconsider their refusal to allow the plaintiffs to litigate their claims in at least one court of competent jurisdiction.” Id., p. 2. The mere fact that Judge Cercone ruled against plaintiffs’ attempts to add the January 2, 2002 hirings to their federal action does not mean that this court can properly re-visit Judge Cercone’s ruling and permit them to be litigated here.

Judge Cercone specifically stated as follows:

“While Rule 15(a) also requires that leave to amend should be ‘freely given,’ a district court has the discretion to deny this request if it is apparent from the record that (1) the moving party has demonstrated undue delay, bad faith or dilatory motives, (2) the amendment would be futile, or (3) the amendment would prejudice the other party.

“In this instance, the court finds that plaintiffs’ requested amendment is both unduly late and futile with regard to the Title VII claim, and unduly late with regard to the PHRA claim. Stangl and Koemer admit that they filed charges of gender discrimination with the Pennsylvania Human Relations Commission (PHRC) and the EEOC on January 14,2002, and March 13,2002, respectively. The EEOC issued right-to-sue letters to both plaintiffs on September 23,2003. At that point, plaintiffs certainly could have requested leave to amend their complaint to add these claims. Instead, they waited nearly 17 months to seek amendment. While leave may not be denied solely on the ground of delay, ‘at some point, the delay will become undue, placing an unwarranted burden on the court, or will become prejudicial, placing an unfair burden on the opposing party.’ Thus, while the rale is to be granted liberally, the issue of undue delay mandates that the court examine the movant’s reasons for that delay. Plaintiffs, however, have given no explanation for the delay.

“Plaintiffs’ proposed amendments are also futile with regard to Title VII, because the statute of limitations for the filing of a Title VII claim has expired. Before bringing an employment discrimination action under Title VII, an individual must file a charge with the EEOC within 180 days of the unlawful discriminatory act. If the EEOC dismisses the charge, the individual has 90 days from the EEOC right-to-sue letter to file an action. Both requirements — exhaustion and filing — are non-jurisdictional prerequisites, akin to statutes of limitations and are subject to waiver, estoppel and equitable tolling principles. Moreover, the Third Circuit has strictly construed the 90-day period and held that, in the absence of some equitable basis for tolling, a civil suit filed even one day late is time-barred and may be dismissed. The 90-day period for bringing a Title VII action expired on December 22, 2003. The court finds no legitimate reason for equitable tolling in this instance.”

It is well-settled that lis pendens applies if “in each case, the same parties were involved, the same rights were asserted, and the same relief was sought.” Meinhart v. Heaster, 424 Pa. Super. 433, 438, 622 A.2d 1380, 1382 (1993). (citations omitted) The doctrine of lis pendens (formerly referred to as the “defense” of lis pendens) generally has the purpose of “protecting] a defendant from harassment by having to defend several suits on the same cause of action at the same time.” Penox Technologies Inc. v. Foster Medical Corporation, 316 Pa. Super. 450, 453, 546 A.2d 114, 115 (1988). Lis pendens also enables a court to dismiss or stay duplicative proceedings that unduly burden the court’s docket, even if a party has not expressly sought such action. In the instant case, the federal court has ruled against plaintiffs on the timeliness issue. There is no amendment that can cure that defect, so dismissal with prejudice was appropriate despite the general policy to freely permit amendment.

CONCLUSION

Plaintiffs chose their forum, federal court, and did not timely file charges there clearly related to that action. They are barred from prosecuting the instant “attempt to preserve their claims” in this court.


source: Caselaw Access Project

author: DYCH, J,

license: Public Domain

text:
    Green Tree Consumer Discount Co. v. Newton
    C.P. of Philadelphia County,
    January Term 2005,
    no. 1453.

      MarkJ. Udren, for plaintiff.

      Irv Ackelsberg, for defendants.

      January 26, 2006
   DYCH, J,

Herman Newton, Geneva Newton and Herman Newton Jr. appeal from my November 16, 2005 order granting Green Tree Consumer Discount Company’s motion for summary judgment, in rem, for foreclosure and sale of the mortgaged property.

FACTS AND PROCEDURAL HISTORY

Green Tree is the assignee of a mortgage dated October 1, 1998 between the assignor American Home Improvement Product Service and the Newtons in the amount of $9,345. The Newtons, a senior citizen couple and their son, obtained the mortgage on their home of 40 years to secure a home improvement financing contract for the installation of aluminum siding. The Newtons made payments on the mortgage from its inception until January 2004.

The Newtons purchased the aluminum siding for the front and the back of their rowhouse based upon the alleged false and misleading representations by the aluminum siding salesmen that the siding “would warm up her home and save her heating money.” After becoming dissatisfied with the quality of the aluminum siding and its failure to reduce their home heating bills, the Newtons stopped making payments on the mortgage.

The Newtons claim that they did not understand that they were obtaining a mortgage on their property. Furthermore, Herman Newton Sr. was incapacitated in 1998 when he signed the documents. The Newtons maintain that they should be entitled to a credit toward the amount due on the mortgage for the difference between the value of the siding actually received and the price they paid.

Due to the non-payment, Green Tree filed a complaint in mortgage foreclosure on January 12,2005. The Newtons filed an answer and new matter on February 7,2005. Amotion for summary judgment was filed on May 15, 2005.1 reluctantly granted the motion for summary judgment on July 12,2005. Amotion for reconsideration was filed by the Newtons on August 1, 2005. I granted the motion for reconsideration on August 5, 2005. Supplemental briefs were filed by the parties and a hearing was held on the reconsideration motion. On December 9, 2005, based upon hearing and reconsideration, I was constrained to grant the motion for summary judgment. This timely appeal followed. On December 14, 2005,1 ordered the Newtons to file a statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). The 1925(b) statement was filed on December 27, 2005.

DISCUSSION

This is a mortgage foreclosure action to effect a judicial sale of the mortgaged property. New York Guardian Mortgage Corporation v. Dietzel, 362 Pa. Super. 426, 431, 524 A.2d 951, 953 (1987). A motion for summary judgment is appropriate where there are no genuine issues as to any material fact and therefore the moving party is entitled to judgment as a matter of law. Continental Insurance Company v. Schneider Inc., 582 Pa. 591, 599, 873 A.2d 1286, 1291 (2005).

An action in mortgage foreclosure is strictly an in rem proceeding; the purpose of the judgment is to effect a sale of the mortgaged property. Meco Realty Company v. Burns, 414 Pa. 495, 498, 200 A.2d 869, 871 (1964). Whether recoupment is raised as a defense or as a counterclaim, the holding in New York Guardian, supra, is controlling. Fleet Real Estate Funding Corp. v. Smith, 366 Pa. Super. 116, 126-27, 530 A.2d 919, 925 (1987). A recoupment claim is not a defense to a foreclosure action. New York Guardian, supra, 362 Pa. Super, at 426, 524 A.2d at 953.

Green Tree’s contention that the Newtons stopped making payments on the mortgage is undisputed. In the answer to the complaint, the Newtons state that “they cannot respond to any allegation of there having been a default of such a mortgage.” They admit, however, that “they were making a monthly payment regarding the home improvement financing and that they fell behind on those payments.” They further admit that after demand, they “continuefdj to fail or refuse[d] to comply with the terms of the mortgage as follows: (a) by failing or refusing to pay the installments principal and interest when due in the amounts indicated below.”

The Newtons argue that they were fraudulently induced by “tin men,” home improvement scammers suclcering vulnerable senior citizens into an installation of overpriced home siding that would be the solution to their high heating bills. The Newtons allege, in defense of the non-payment, the fact that the aluminum siding was not as represented to them by the salemen, citing the Home Improvement Finance Act, [HIFA] 73 Pa.C.S. §500-201 et seq. The Newtons contend that they “are entitled to and, therefore, request a recoupment to reflect the difference between the price that they paid for the improvements and the value of what they actually received.”

Although recoupment defenses are permitted in bankruptcy proceedings, they are not permitted in foreclosure actions, which are strictly in rem. Bankruptcy proceedings are in personam proceedings which resolve the personal obligations of the debtor. Jones v. Progressive-Home Federal Savings and Loan Assoc., 122 B.R. 246, 251 (U.S. Dist. W.D. Pa. 1990). Compare Associates Home Equity Services Inc. v. Troup, 778 A.2d 529, 539 (N.J. Super. 2001) (holding that a foreclosure action is not strictly an in rem proceeding, but rather a quasi in rem procedure, thus declining to apply New York Guardian, which precludes a recoupment remedy in a foreclosure action).

The Newtons, in their answer to the complaint, admitted that they have, after demand, continued to fail or refuse to comply with the terms of the mortgage. They also claim that they “do not know the details of the mortgage” and therefore could not respond to the allegations that there was a default. This is tantamount to an admission that they are in default on the mortgage. New York Guardian, supra, 362 Pa. Super, at 429, 524 A.2d at 952 (1987). In the answer to the complaint, there is a general denial regarding the specific sums alleged due based upon lack of information. A general denial is deemed an admission of those facts. New York Guardian, supra, 362 Pa. Super, at 429-30, 524 A.2d at 952-53. See also, Pa.R.C.P. 1029(c).

The Newtons make a general denial in the answer to the complaint that the attorney’s fees are reasonable. “[A] mortgagee is entitled on foreclosure to recover reasonable expenses, including attorney’s fees.” Citicorp Mortgage Inc. v. Morrisville Hampton Village Realty Limited Partnership, 443 Pa. Super. 595, 600, 662 A.2d 1120, 1123 (1995). Averments in pleadings do not raise a genuine issue of fact. Washington Federal Savings and Loan Association v. Stein, 357 Pa. Super. 286, 292, 515 A.2d 980, 982-83 (1986). In the case at bar, the Newtons did not offer any evidence to contradict the claims in Green Tree’s complaint other than the general denials in their answer.

CONCLUSION

Since there was no genuine issue of material fact, I reluctantly granted the motion for summary judgment. New York Guardian, supra, 362 Pa. Super, at 431, 524 A.2d at 952-53.

      . The amounts “indicated below” were recited in paragraph six of Green Tree’s complaint. The amounts included the principal of debt due, $7,944.83, unpaid interest, title report, court costs, late charges, BPO, attorney’s fees.


author: KLEINFELTER, J,

text:
    Peterson v. State Farm Fire & Casualty Co.

      C.P. of Dauphin County,
    no. 2003-CV-4018-CV.

      Kathy M. Shughart, for plaintiff.

      Lee E. Ullman and Curtis C. Johnson, for defendant State Farm Fire & Casualty Co.

      Brooks R. Foland, for defendant United Water of Pennsylvania Inc.

      Donald M. Lewis, for defendant GMAC Mortgage Corp.
    June 24, 2006
   KLEINFELTER, J,

This action arises from an incident on September 18, 2002, when plaintiff’s home suffered water damage as a result of defendant GMAC’s (and other’s) alleged negligence in failing to properly winterize the property during the pendency of a foreclosure proceeding.

Before the court presently is a preliminary objection filed by GMAC to plaintiff’s complaint. The objection asserts defective service of process and a failure to commence the petition within the applicable two-year limitations period.

A review of the record reveals the following. Suit was initiated by filing of a writ of summons on September 17,2003, one day before the one-year anniversary of the incident. The writ was reissued on June 7, 2004, and again on August 31, 2004. According to GMAC, none of these writs were ever served; however, plaintiff has a return of service completed by a private process server which reflects service of the third writ on GMAC on September 10, 2004. The writ was purportedly handed to a “sales assistant” in a local GMAC office.

A complaint was filed on October 20,2004, and served by regular mail since, according to plaintiff’s counsel, she believed the reissued writ had been served by sheriff on or about September 10,2004. Although the complaint was not formally served on GMAC, a copy was mailed to and received by them sometime between October 20 and November 2, 2004. On November 2, 2004, counsel for GMAC wrote to plaintiff seeking an extension of time to file an answer and, in exchange, to waive the defect in service. Plaintiff did not respond.

On November 9, 2004, GMAC sent a second letter renewing its offer of November 2; again, plaintiff did not respond. Plaintiff asserts in her brief that she took no further action, such as moving for default judgment, in reliance on the offer to waive defective service and GMAC’s stated intention to file a response.

On July 21, 2005, defendant filed the present preliminary objections. These were assigned to this court on January 4,2006. Plaintiff filed a response to application for further order dismissing plaintiff’s complaint for failure to plead in response to verified preliminary objections on February 1, 2006. We denied the application by order dated February 2, 2006. As indicated earlier, briefs were filed and oral argument received on April 27, 2006.

LEGAL DISCUSSION

The Pennsylvania Rules of Civil Procedure are rather clear concerning the service of original process:

“(a) Except as provided in subdivisions (b) and (c) and in Rules 400.1 and 1930.4, original process shall be served within the Commonwealth only by the sheriff.” Pa.R.C.P. 400. (emphasis added)

In this case, to this day, none of the three writs of summons nor the complaint, have ever been served on GMAC by the sheriff. Service by a private process server, Dubrey v. Izaguirre, 454 Pa. Super. 504, 685 A.2d 1391 (1996) or by certified mail, Cahill v. Schults, 434 Pa. Super. 332, 643 A.2d 121 (1994) is invalid.

This case is not unlike that of Winfield v. Shah, 117 Dauphin Rep. 334 (1997). The issue therein was whether the statute of limitations was tolled by a “good faith effort” to effect service. Service had been attempted by first class mail. A complaint was subsequently served by the sheriff but after the statute had expired. In our opinion we discussed at some length those cases decided following Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976). We concluded:

“At a minimum, the good faith effort requirement in Lamp mandates compliance with the Pennsylvania Rules of Civil Procedure and local rules, (citation omitted) Under the Pennsylvania Rules of Civil Procedure original service in a civil action . . . may only be made by sheriff. Pa.R.C.P. 400.” Id. at 337; see also, Teamann v. Zafris, 811 A.2d 53 (Pa. Commw. 2002) (to satisfy good faith requirement strict compliance with rules of procedure is required).

GMAC also argues that even were service by a process server or first class mail to be valid, Pa.R.C.P. 424 requires service on a corporation to be made by hand delivery to:

“(1) an executive officer, partner or trustee of the corporation or similar entity, or (2) the manager, clerk or other person for the time being in charge of any regular place of business or activity of the corporation or similar entity, or (3) an agent authorized by the corporation ... in writing to receive service of process for it.”

In our case, the process server is alleged to have handed a copy of the reissued writ of summons to a “sales assistant” in a local GMAC office. We have no way of knowing whether this person was “for the time being in charge” since the record is silent on the identity and position of the person served. Since effective service is not presumed, plaintiff has the burden of proof once an objection has been raised. They have failed to meet this burden.

We turn briefly to the issue of waiver, since GMAC, on at least two occasions, offered to excuse the defect in service in exchange for an extension of time to file an answer. Since these offers were never accepted (or ever responded to) by plaintiff, there can be no agreement regarding waiver.

Notwithstanding the foregoing, plaintiff suggests that technical violations of the rules are of no moment if GMAC had “actual knowledge” of the suit within the time prescribed by the statute of limitations and was not prejudiced in any manner. For this proposition we are directed to McCreesh v. City of Philadelphia, 585 Pa. 211, 888 A.2d 664 (2005).

In that case, plaintiff commenced his litigation by filing a praecipe to issue a writ of summons two days before expiration of the applicable two-year statute of limitations. The writ was served by certified mail, which was signed for by defendant. Shortly less than three months later, plaintiff filed his complaint as well as a request for reissuance of the writ. These were properly served on defendant.

The trial court denied defendant’s preliminary objections based on improper service of the original writ concluding that the certified mail service constituted “good faith.” On review, relying on Teamann, supra, and Williams v. SEPTA, 137 Pa. Commw. 163, 585 A.2d 583 (1991), the Commonwealth Court reversed. The Pennsylvania Supreme Court granted review.

Justice Baer, writing for the four-justice majority, reviewed the diverse opinions of the Superior and Commonwealth Courts, which “have struggled to apply the Lamp-Farinacci rule, with some panels requiring plaintiffs to comply strictly with the Rules of Civil Procedure related to service ... in order to satisfy the good faith requirement... and other panels providing a more flexible approach ... where the defendant has actual notice of the commencement of litigation and is not otherwise prejudiced — We now adopt the more flexible approach . . . .” McCreesh, supra at 666. (additional citations omitted) (footnote omitted)

The court concluded:

“Neither our cases nor our rules contemplate punishing a plaintiff for technical missteps where he has satisfied the purpose of the statue of limitations by supplying a defendant with actual notice. Therefore, we embrace the logic of the Leidich line of cases, which, applying Lamp, would dismiss only those claims where plaintiffs have demonstrated an intent to stall the judicial machinery or where plaintiff’s failure to comply with the Rules of Civil Procedure has prejudiced defendant.” Id. at 674. (footnote omitted)

In an attention-getting footnote, the court added:

“Additionally, we note that there may be situations where actual notice may not be absolutely necessary so long as prejudice did not result, but we need not delineate such an exception here because the issue is not before us.” Id. at 674 n.20.

We will now attempt to apply McCreesh to the case sub judice. In doing so, however, we will first decline plaintiff’s invitation to apply a “prejudice test.” In the first place, it is clear that the references to a prejudice inquiry in McCreesh are strictly dicta. Secondly, we would predict that adoption of such a test could ferment procedural pandemonium. Its effect would be to signal the bar that our rules of procedure mean little and may be completely disregarded unless some “prejudice” results. Our rules of procedure are designed to bring order and certainty to the practice; a “prejudice” test would assure procedural anarchy and guarantee endless litigation to hone a meaning for such a diaphanous term as “prejudice.”

So, placing “prejudice” aside, we turn to what we believe to be the principal holding of McCreesh; namely, that strict compliance of the rules regarding service is not required so long as the defendant has “actual notice” of the lawsuit. In other words, the mechanism of service required by Pa.R.C.P. 400 is of no moment if “actual notice” is somehow accomplished. Similarly, McCreesh suggests that service within 30 days as required by Rule 401 — or reissuance and service within the applicable time (30 days) is also of no moment, unless plaintiff engages in “a course of conduct which serves to stall in its tracks the legal machinery.” Lamp, 469 Pa. at 478, 366 A.2d at 889.

In the case before us, the first writ, issued on September 17,2003, was never served. It was not reissued until some nine months later on June 7, 2004. This writ was never served. The third writ, issued on August 31,2004, was apparently served on September 10, 2004 — but contrary to the rule — by a private process server. Defendant denies receiving this writ and we find that GMAC had no “actual notice” of the service of this writ. That brings us to the complaint, filed on October 20, 2004. This complaint was served by regular mail and it is this document that GMAC acknowledges receiving sometime between October 20 and November 2, 2004. Thus, the first date on which “actual notice” may be deemed to have been effected falls between these two dates.

Even were we to give plaintiff the benefit of October 20, 2004, as an “actual notice” date, this date is two years and two months past the incident of water damage (September 18, 2002). Significantly, it was not until after October 20 that there was any communication between plaintiff’s counsel and GMAC’s counsel. Even then, it was GMAC’s counsel that initiated correspondence, which, incidentally, remains unanswered to this date.

In conclusion, we find that plaintiff’s conduct in this case fails to pass muster under Lamp v. Heyman. The long delays in reissuing the writs, without proper service and return, did stall the legal machinery and progress of this case. Moreover, the “flexible approach” adopted in McCreesh does not seem to extend to a case such as this in which plaintiff never complies with the rules relating to service. As the McCreesh majority made clear:

“We observe that in every case applying Lamp, including the case sub judice, the plaintiff eventually complied with the Rules of Civil Procedure and formally served the defendant with process. Indeed, without this eventual service jurisdiction could never attach, and any particular case would never be litigated through the courts, [citing Sharp, supra] The question in these cases is whether a plaintiff’s claim will be dismissed because the plaintiff’s initial attempts at service do not technically comply with the rules. We do not address the situation where a plaintiff never complies with the Rules of Civil Procedure relating to service. 888 A.2d at 666 n.l. (emphasis added)

The only remaining issue is whether we should simply sustain the preliminary objection to improper service, and dismiss the complaint, or should we also rule on the defense of statute of limitations. Normally, to raise the bar of statute of limitations, the defense should be pleaded affirmatively under “new matter.” See Pa.R.C.P. 1030.

Here, however, it is clear that even the improperly served complaint which provided “actual notice” was filed after the expiration of the two-year statute of limitations. See 42 Pa.C.S. §5524. Accordingly, our order sustaining GMAC’s preliminary objections and dismissing the complaint will be with prejudice.

ORDER

And now, June 21, 2006, upon consideration of the preliminary objections filed by defendant GMAC, it is hereby ordered that the preliminary objections are sustained and the complaint is dismissed with prejudice.

      . We previously granted a motion for judgment on the pleadings filed by defendant State Farm & Casualty Company (opinion filed December 7, 2005).

      . An insurance policy issued to plaintiff by defendant State Farm Fire and Casualty Company contained a one-year suit limitation clause.

      . On January 5,2006, we had ordered plaintiff to file an answer to GMAC’s preliminary objections.

      . Joining Justice Baer were Cappy, C.J.; Castille, J.; and Saylor, J. Dissenting were Newman, J.; Eakin, J.; and Nigro, J.

      . In the case at bar, no hearing or argument was developed on the issue of prejudice to GMAC. At the least, they would be prejudiced by being unable to assert a defense of statute of limitations.


author: ZULICK, J,

text:
    Toolan v. Cerulli

      C.P. of Monroe County,
    no. 8853 CV 2005.

      Kevin P. Foley, for plaintiffs.

      Joanne Kelhart, for defendants.
    December 14, 2006
   ZULICK, J,

This case comes before the court on defendants George Cerulli and Ketty Rendon’s petition to open a default judgment entered against them by the prothonotary. Defendants allege that the default judgment was improperly entered and that they have met the requirements for opening a default judgment as a matter of law. I agree and will therefore direct that the judgment be opened.

Plaintiffs Joan and Timothy Toolan brought suit against the defendants on behalf of their minor children, Brendan and Timothy Jr. The suit arises from the Toolans’ allegations that an 8-month-old German Shepherd, owned by Ketty Rendon and kept in a home owned by George Cerulli, bit Timothy, causing him serious injuries. The Toolans allege the children were playing with a friend across the street, Kaitlyn Gannon, when the dog attacked Timothy and Ms. Gannon. They further allege that considerable medical treatment was required for Timothy Jr. Damages for mental anguish are also claimed for Timothy Jr., his brother Brendan and his mother, plaintiff Joan Toolan.

The Toolans filed their complaint and then filed an amended complaint on May 2, 2006. Defendants filed preliminary objections on July 7,2006. On the same date, the defendants filed a praecipe for argument of the objections “on the next available list.” In accordance with defendants’ request, the Monroe County Prothonotary placed the objections on the next available argument date on the Monroe County court calendar, which was August 7.2006. Defendants claim they were not notified of the argument date until shortly before August 7, 2006, and that they then filed a motion for continuance. However, the motion for continuance was not docketed in the prothonotary’s office until nearly a month later, on August 31.2006.

Defendants allege that they were “under the impression that the argument would be continued until September 5, 2006” and thus failed to attend the oral argument.

On August 21,2006, the court issued an order denying defendants’ preliminary objections and directing them to file an answer to the Toolans’ amended complaint within 20 days. When plaintiffs failed to file an answer, the Toolans filed a praecipe for entry of default judgment on September 19, 2006. Defendants filed a petition to open the judgment on September 28, 2006.

DISCUSSION

“The nature of a default judgment is to impose responsibility upon a defendant who had the opportunity to defend the claim on the merits but has failed to do so.” Allegheny Hydro No. 1 v. American Line Builders, 722 A.2d 189, 195 (Pa. Super. 1998), citing Kraynickv. Hertz, 443 Pa. 105, 277 A.2d 144 (1971). The rule for granting a motion to open a default judgment was set out by the Pennsylvania Supreme Court in Balk v. Ford Motor Co., 446 Pa. 137, 140, 285 A.2d 128, 130 (1971):

“[A] petition to open a judgment is a matter of judicial discretion . . . and is to be exercised only when three factors coalesce: (1) the petition has been promptly filed; (2) a meritorious defense can be shown; (3) the failure to appear can be excused.” (footnote omitted)

Each prong of the Balk test must be met or no relief is appropriate. Schultz v. Erie Insurance Exchange, 505 Pa. 90, 93, All A.2d 471, 472 (1984). However, the prongs are to some degree interdependent:

“The merits of a defense may have some bearing on the question of whether a petition to open was promptly enough filed. The more plainly meritorious the defense, the more heavily the equities will incline in the petitioner’s favor, which is to say, the more appropriate it may be to excuse some delay.” Allegheny Hydro, 722 A.2d at 191-92, citing Provident Credit Corporation v. Young, 300 Pa. Super. 117, 130, 446 A.2d 257, 264 (1982).

Pennsylvania Rule of Civil Procedure 237.3(b) provides that where, as here, a defendant seeks to open a default judgment for purposes of filing an answer, the petition is per se timely and the failure to timely file an answer is presumed excusable if it is filed within 10 days of the entry of the default judgment. In this case, the default judgment was entered into on September 19, 2006, and defendants’ petition was filed on September 28,2006. Consequently, the petition meets the timeliness requirements.

Since defendants filed within 10 days, under Rule 237.3(b), the delay was excusable as a matter of law and defendants are not required to provide an explanation. Cohen v. Mirin, 729 A.2d 1236, 1238 (Pa. Super. 1999) (“The lower court’s insistence that appellant express a reasonable explanation was, therefore, in error, and was not proper grounds on which to base its denial of appellant’s petition.”). See also, note to Rule 237.3 (“the rule supplies two of the three requisites for opening such judgments by presupposing that a petition filed as provided by the rule is timely and with reasonable explanation or legitimate excuse for the inactivity or delay resulting in the entry of the judgment”).

Given that defendants’ petition is per se timely and any delay per se excusable based on Rule 237.3, the only remaining question is whether defendants have proffered a meritorious defense.

A meritorious defense for our purposes is defined as one which (1) would justify relief if proved at trial and (2) is set forth in precise, specific and clear terms. Seeger v. First Union National Bank, 836 A.2d 163, 166 (Pa. Super. 2003), citing Penn-Delco School District v. Bell Atlantic-PA, 745 A.2d 14, 19 (Pa. Super. 1999). A meritorious defense may be located in the petition to open rather than the attached answer. Castings Condominium Association Inc. v. Klein, 444 Pa. Super. 68, 74, 663 A.2d 220, 224 (1995).

In this case, defendants cite three general defenses in their proposed answer to the amended complaint: (1) the dog in question was not dangerous, had no known propensity for vicious behavior, and was a puppy, defendants’ petition to open, para. 23; (2) they did not violate the dog leash law, id. at para. 28; and (3) the Toolans have not provided medical bills with which to validate a personal injury claim, id. at para. 24.

The Toolans reply that collateral estoppel and res judicata should preclude defendants from litigating the first two issues because Ms. Rendon was found guilty of harboring a dangerous dog, see plaintiffs’ exhibit A, and that the third defense is sufficient only to mitigate damages, so any trial or hearing should be confined to that subject.

It was long the law in Pennsylvania that criminal convictions were inadmissible in subsequent civil suits for collateral estoppel purposes. See Richard Township v. Prodex Inc., 160 Pa. Commw. 184, 196, 634 A.2d 756, 762 (1993), citing Hurtt v. Stirone, 416 Pa. 493, 497, 206 A.2d 624, 626 (1965), cert. denied, 381 U.S. 925, 85 S.Ct. 1561, 14 L.Ed.2d 684 (1965). The law changed in 1965 when the Hurtt court overturned this doctrine, permitting convictions for serious crimes to be admitted for collateral estoppel purposes:

“We are not now prepared to say that the mere technical effect of the doctrines of res judicata and collateral estoppel regarding identity of parties is sufficient to overcome the policy which requires us to give conclusive effect to the prior conviction herein. The defendant should not now be heard to deny that which was established by his prior criminal conviction, without proof that his conviction was procured by fraud, perjury or some manner of error now sufficient to upset the conviction itself. Defendant has had his day in court and has failed to instill even a reasonable doubt in the collective mind of his then jury ... [but]

“[W]e recognize a valid existing distinction in cases involving the record of conviction of relatively minor matters such as traffic violations, lesser misdemeanors, and matters of like import. Especially in traffic violations, expediency and convenience, rather than guilt, often control the defendant’s ‘trial technique.’ In such cases, it is not obvious that the defendant has taken advantage of his day in court, and it would be unreasonable and unrealistic to say he waived that right as to a matter (civil liability), which was probably not within contemplation at the time of the conviction ....

“The policy shifts with regard to major criminal convictions such as the one presented. We find it incredible in such a situation that a defendant would present less than his best defense, knowing that his failure would result in the loss of substantial property, or even his liberty.” Hurtt, 416 Pa. at 498-99, 206 A.2d at 626-27. (citations omitted) (footnote omitted)

Hunt’s dicta that not all criminal convictions were admissible for collateral estoppel purposes was upheld the following year in Loughner v. Schmelzer, 421 Pa. 283, 218 A.2d 768 (1966). The court explained, “an important distinction exists between traffic violations and lesser misdemeanors on the one hand and felonies and their consequences on the other hand.” Id. at 285, 218 A.2d at 769.

The Supreme Court has since held that a summary offense functioning as a necessary operative fact in a non-summary conviction is also admissible for collateral estoppel purposes, explaining that Hurtt sought to “insure that the party bound by the prior determination had adequate incentive to contest the issue and an adequate forum in which to litigate.” Folino v. Young, 523 Pa. 532, 536, 568 A.2d 171, 173 (1990). The court consequently reaffirmed that summary convictions in themselves were inadmissible for collateral estoppel purposes. Id. at 537, 568 A.2d at 173-74.

In this case, defendants were charged with a violation of 3 P.S. §459-502(A). Plaintiffs’ exhibit A. Purdon’s Statutes section 459-502(A) clearly defines harboring a dangerous dog as a violation of the Dog Law, but as a summary offense only. Consequently, Folino; Hurtt and Loughner demonstrate that it is inadmissible for collateral estoppel purposes.

Having established that defendants are not collaterally estopped from raising any of their proffered defenses, I turn to evaluating whether those defenses are meritorious under Seeger and Penn-Delco School.

The Toolans allege common-law theories of negligence and negligence under the Dog Law, 3 P.S. §459-305, due to defendants’ alleged failure to secure the German Shepherd in question. “It is axiomatic that in order to maintain a negligence action, the plaintiff must show that the defendant had a duty ‘to conform to a certain standard of conduct;’ that the defendant breached that duty; that such breach caused the injury in question; and actual loss or damage.” Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000, 1008 (2003). Consequently, in responding to a claim of negligence, a meritorious defense is raised, inter alia, “where it is asserted that plaintiff’s injury is not the result of defendant’s negligence, and that the injuries complained of occurred as a result of an unforeseeable event.” Himmelreich v. Hostetter Farm Supply Inc., 703 A.2d 478 (Pa. Super. 1997), citing Alba v. Urology Associates of Kingston, 409 Pa. Super. 406, 410, 598 A.2d 57, 59 (1991).

It is possible defendants could prove at trial that the dog in question had not shown vicious propensities, and consequently that the injuries in question occurred as a result of an unforeseeable event. This could be sufficient to defeat a claim of negligence. See Andrews v. Smith, 324 Pa. 455, 459, 188 A. 146, 148 (1936) (“Animals such as horses, oxen and dogs are not beasts that are ferae natura, i.e., wild beasts, but are classed as mansuetae natura, i.e., tamed and domesticated animals, and their owners are not responsible for any vicious acts of theirs unless the owners have knowledge that they are likely to break away from their normal domestic nature and become vicious.”) cited in Kinley v. Bierly, 876 A.2d 419, 422 (Pa. Super. 2005). On the issue of negligence, then, defendants have alleged a meritorious defense to justify reopening the judgment.

Further, the Toolans allege that defendants failed to restrain the dog properly as required by the Dog Law, 3 P.S. §459-305. Proof of violation of the leash law would constitute negligence per se under the decision in Miller v. Hurst, 302 Pa. Super. 235, 448 A.2d 614 (1982). However, a dog owner may always show that the dog escaped despite the exercise of due care and that in such cases negligence would not be found. Villaume v. Kaufman, 379 Pa. Super. 561, 565, 550 A.2d 793, 795 (1988). Defendants contend that the dog did escape despite their exercise of due care, so they have alleged a meritorious defense.

Finally, the Toolans have the burden of proving their damages at trial. The defense that damages are less than the Toolans assert, possibly considerably less, remains meritorious and a legitimate issue for trial. As a result, defendants have proffered three meritorious defenses and are entitled to have the judgment opened as a matter of law.

ORDER

And now, December 14, 2006, it is ordered that the judgment against defendants is opened. Defendants shall file their answer within 20 days.

      . Monroe County local rules do not provide for mailed notice of an argument date. See 43 J.D.R.C.P. 207. (“All praecipes for argument shall be listed on the first argument date occurring more than 30 days following the filing of the motion. . . .”) Defendants filed a praecipe for argument of their preliminary objections on July 7, 2006. The Monroe County court calendar provided for argument court on August 7, 2006 and defendants’ case was placed on this argument list as per the defendants’ praecipe. The court’s calendar is published for members of the bar and is available from the prothonotary’s office.

      . Other states appear divided on the admissibility of prior criminal convictions in civil suits. Compare Beale v. Speck, 127 Idaho 521, 903 P.2d 110 (1995), and Crane v. Dunn, 382 Md. 83, 854 A.2d 1180 (2004) (rejecting the Hurtt/Loughner distinction between serious crimes and lesser offenses) with Thurmond v. Monroe, 636 N.E.2d 544, 547, 201 Ill. Dec. 112, 115, 159 Ill.2d 240, 246 (1994); Hunter v. Hardnett, 199 Ga.App. 443, 405 S.E.2d 286 (1991); Montalvo v. Morales, 18 A.2d 20, 239, N.Y.S.2d 72 (1963), et al. (distinguishing between lesser offenses or traffic offenses and serious crimes).


author: HODGE, J,

text:
    Chappell v. Chappell

      C.P. of Lawrence County,
    no. 11680 of 2006, C.A.

      Susan M. Papa, for plaintiff.

      Angelo A. Papa, for defendant.
    February 5, 2007
   HODGE, J,

Before the court are mutual motions for exclusive possession of marital residence filed by both parties.

The parties were married on October 20, 1984, in Lawrence County.

The marital residence was at 326 Upper Boyd School Road, Shenango Township, New Castle, Lawrence County, Pennsylvania. The land at that address was a gift to the plaintiff from her father three years before the marriage. After the marriage, the parties built a ranch styled home on the premises. Plaintiff’s brother and sister live nearby, as each received a parcel of land out of the family farm.

The parties are the parents of an adult son, age 19, and a daughter, Alyson, bom July 29,1989, currently age 17, and a junior at Shenango High School.

The plaintiff testified that the parties separated on October 3, 2006, after a period of intense argument. Prior to October 3, 2006, the climate in the home was very stressed and uncomfortable according to the plaintiff. The plaintiff left the marital residence on October 3, 2006, as she felt that her husband would never leave the premises. Since her leaving the marital residence, the husband has changed the locks and denied her requests for a key, denied her requests for personal possessions in the home, denied her the use of a second vehicle, and became very upset with her over her request for possession of a jewelry box and address book.

The plaintiff now resides in the Mohawk School District. The minor daughter lived with her father in the marital residence until the first of November 2006, at which time she joined her mother at the mother’s residence in the Mohawk School District.

The minor daughter continues to attend Shenango School District, where she is a straight A student and a member of the National Honor Society. The plaintiff’s request for exclusive possession of the marital residence is based upon her desire to have her daughter finish high school at Shenango School District, which is the only school which the daughter has attended, and where she is not only doing well but has most of her friends.

The plaintiff/wife did acknowledge that she had told her husband in August 2006 that she had been involved in an extramarital affair, which news the husband did not take well. The parties tried counseling to save the marriage but were unsuccessful, according to plaintiff, due to the husband’s anger.

The plaintiff’s testimony was that their daughter was uncomfortable with her father, who apparently was upset with the daughter because the daughter’s boyfriend stayed overnight in the mother’s home this past November.

The plaintiff’s testimony was that the daughter’s relationship with her father was estranged, and that the daughter continues to struggle with the divorce and her absence from the family home.

The husband testified that he tried to make the marriage work, despite his faults, after being informed by his wife of her extramarital affair. The husband’s focus was to keep the family unit together. It was the husband’s testimony that the reasons for the breakup of the family unit were those solely of the wife, due to her extramarital affair, and that he and the family unit should not be punished as a result of her actions. The father testified that he saw his daughter this past week when she came to visit her boyfriend, who lives with the wife’s sister in the immediate vicinity of the marital residence.

The father admitted that there are two vehicles at the home, but that he did not offer nor permit the wife to take one vehicle for her use or the daughter’s use.

Husband admitted that he took the daughter to see where the wife’s male friend lived, at which time the daughter became very upset when he smashed the windows of the wife’s friend’s truck. Husband indicated that he was very angry when he first became aware of the breakup of the family, but that his anger had subsided now.

Prior to the separation, husband acknowledged that he and his wife argued on a regular basis when the kids were not around, and that he was significantly upset with her but not tensed nor stressful.

Counsel for the husband argued that the exclusive possession was a harsh remedy, that the husband was the person most likely to maintain the stability of the family unit.

Counsel for the wife argued that the only reason the wife vacated the premises was that the husband told her to “get the hell out,” and that the main concern of the court should be the best interest and welfare of the minor daughter. There is a possibility that if the minor daughter no longer resides in Shenango Township, that the school district would force her to pay tuition in order to complete her education at that school.

Counsel for the wife also argued that the husband was not willing to budge for the sake of the wife and daughter, that he was placing his welfare above that of his minor child.

Pursuant to 23 Pa.C.S. §3502(c), the court may award, during the pendency of the action or otherwise, to one or both of the parties the right to reside in a marital residence.

In Laczkowski v. Laczkowski, 344 Pa. Super. 154, 496 A.2d 56 (1985), the Superior Court of Pennsylvania specifically found that the court of common pleas had authority to temporarily award the marital residence, pending equitable distribution of marital property, to one spouse pursuant to the Divorce Code, section 3502(c). In Laczkowski, the factual situation is similar to the present situation, in that there was a minor child residing with the spouse requesting temporary possession of the marital property.

The Laczkowski opinion was a case of first impression in the Commonwealth of Pennsylvania, and the reasoning was based upon the reasoning in a New Jersey case of DeGenaars v. DeGenaars, 186 N.J. Supr. 233, 452 A.2d 222 (1982), and the case from Maryland of Pitzenburger v. Pitzenburger, 285 M.D. 20, 410 A.2d 152 (1980). The intent of and holdings of both DeGenaars and Pitzenburger is essentially that a possession of award is to give “special attention to the needs of minor children to continue to live in a familiar environment and to avoid uprooting the children from the home, school, social and community settings upon which they are dependant.”

The husband’s reason for wanting to continue to reside in the family home is to maintain the family unity.

However, it is apparent from the testimony presented in this case that that is not a likely outcome. Testimony established not only is the marriage irretrievably broken, but that the daughter, after living with the father for approximately one month, made the choice to remove herself from the marital residence in favor of living with her mother.

The person whose needs the court should clearly protect in this situation are the needs of the minor child, who is doing well at Shenango High School, getting excellent grades and participating in National Honor Society.

Accordingly, the court will enter the following order:

ORDER

And now, February 5,2007, after consideration of the testimony presented on the mutual petitions for exclusive possession of marital residence, the court enters the following order:

(1) Temporary possession of the marital residence situated at 326 Upper Boyd School Road, New Castle, Pennsylvania, is awarded to the plaintiff/wife, pending equitable distribution of marital property under section 3502(c) of the Divorce Code.

(2) The defendant/husband shall vacate the marital residence no later than 5 p.m., on Saturday, March 3, 2007.

(3) Both parties are instructed that the marital home shall remain in its current condition, without damage of any kind, perpetrated by either party, pending completion of equitable distribution proceedings in this case.

(4) The prothonotary shall properly serve notice of this order by regular mail or personal service upon counsel of record.


author: BUCCI, J,

text:
    Commonwealth v. Ortega-Cruz

      C.P. of Berks County,
    no. 3154-06.

      Jason Lutcavage, for Commonwealth.

      Craig Snyder, for defendant.
    December 5, 2006
   BUCCI, J,

The defendant was charged with possession with intent to deliver a controlled substance, possession of a controlled substance, and possession of drug paraphernalia, to wit, small plastic bags and a scale, all of which arose from a search of the defendant’s residence which occurred on June 25, 2006 between 8:30 p.m. and midnight.

However, following an omnibus pretrial hearing, on October 30,2006, this court granted defendant’s motion for suppression of evidence. This court’s findings of facts and conclusions of law are attached and incorporated by reference herein.

On November 22, 2006, the Commonwealth filed a notice of appeal from this court’s order. On November 28,2006, this court ordered the Commonwealth to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. § 1925(b). On December 4,2006, the Commonwealth filed a concise statement.

The Commonwealth raises on appeal the sole issue of whether the defendant, Antonio Ortega-Cruz, had a legitimate expectation of privacy in the area searched, that is, unit 1 of an apartment building at 156 N. 9th Street, Reading, Berks County, Pennsylvania.

First of all, the Commonwealth has failed to raise the issue of the defendant’s expectation of privacy until appeal. This court has reviewed the transcript of the pretrial hearing and cannot find an instance where the Commonwealth challenged the defendant’s expectation of privacy in his apartment. “Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P. §302(a). See also, Commonwealth v. Duffy, 832 A.2d 1132 (Pa. Super. 2003), appeal denied, 577 Pa. 694, 845 A.2d 816 (2004); Commonwealth v. Jackson, 765 A.2d 389 (Pa. Super. 2000); Commonwealth v. Garcia, 847 A.2d 67 (Pa. Super. 2004), reh’g denied, appeal granted in part, 580 Pa. 12, 858 A.2d 1161 (2004), aff’d, 585 Pa. 160, 888 A.2d 633 (2005). Accordingly, this court finds that the Commonwealth has waived any challenge to the defendant’s expectation of privacy pursuant to Pa.R.A.P. §302(a).

Furthermore, according to Officer Driesbach’s testimony, the defendant was inside the apartment when he first talked to the defendant. N.T., pretrial hearing, 10/13/06, at 10. This court has heard no evidence that this apartment was not the defendant’s residence. Therefore, this court is at a loss as to why the defendant would not have a legitimate expectation of privacy in his own apartment. Indeed, the defendant would surely have a greater expectation of privacy in his own apartment then anywhere else. See e.g., In re Petition to Compel Cooperation with Child Abuse Investigation, 875 A.2d 365, 373 (Pa. Super. 2005), quoting Commonwealth v. Flewellen, 475 Pa. 442, 446, 380 A.2d 1217, 1219-20 (1977) (“Upon closing the door of one’s home to the outside world, a person may legitimately expect the highest degree of privacy known to our society”).

Therefore, for the reasons detailed above, this court respectfully requests that the Commonwealth’s appeal be denied and this court’s order affirmed.

FINDINGS OF FACT

(1) The defendant is charged with possession with intent to deliver a controlled substance, possession of a controlled substance, and possession of drug paraphernalia, to wit, small plastic bags and a scale, all of which arose from a search of the defendant’s residence which occurred on June 25,2006 between 8:30 p.m. and midnight.

At approximately 8:30 p.m. on June 25,2006, Officer Eric Driesbach of the Reading Police Department was operating his marked patrol vehicle while in full uniform in the 100 block of North 9th Street in the City of Reading, Berks County, Pennsylvania.

(2) Officer Driesbach observed the defendant hanging out of a second story window of an apartment building at 156 North 9th Street, and he observed the defendant toss two lit “incher” firecrackers out of the window.

(3) There is no evidence that there was anyone on that street who was endangered by the firecrackers or that the firecrackers caused any damage to property.

(4) Officer Driesbach stopped and parked his patrol car and then entered the public portion of the apartment building, ascending to the second floor hallway with the intent to locate the defendant and to issue the defendant a summary violation citation for the firecracker incident.

(5) When Officer Driesbach reached the second floor hallway he observed the defendant standing in the doorway of apartment unit 1 and recognized the defendant as the person who had minutes earlier tossed the firecrackers out of the second story window. Although Officer Driesbach said the defendant was at the doorway, he admitted that the defendant was standing on the other side of the threshold of the apartment. Therefore, this court finds that the defendant was inside his residence when Officer Driesbach initially encountered him.

(6) Officer Driesbach asked the defendant for identification to which the defendant did not verbally respond but instead “turned and walked away” to somewhere else in the apartment beyond Officer Driesbach’s field of vision. At no time did Officer Driesbach inform the defendant that he was being cited for throwing the firecrackers out of the window or that he was being arrested or detained.

(7) Officer Driesbach then “heard footsteps or someone running” and he heard a door slam shut. Officer Driesbach testified these noises caused him to fear for his safety.

(8) Officer Driesbach then entered the apartment to look for the defendant, at which point he observed the defendant standing next to a bed in an adjacent room. On the bed near where the defendant was standing, Officer Driesbach observed a small scale, a mirror, and a very small quantity of marijuana on the top of the mirror.

(9) Officer Driesbach immediately handcuffed the defendant. He did so to prevent the defendant from destroying the evidence.

(10) After handcuffing the defendant, Officer Driesbach conducted a “protective sweep” of the premises and located five more people in the apartment, all of whom were detained.

(11) During this protective sweep, Officer Driesbach observed four or five bags of marijuana in plain view on a small table.

(12) Officer Driesbach then contacted Criminal Investigator Colon of the Reading Vice Division to request Officer Colon to obtain a nighttime search warrant for the premises. At 12:15 a.m. Officer Colon obtained a nighttime search warrant from the magisterial district judge. During the search of the apartment conducted pursuant to the search warrant, police discovered another small bag of marijuana on the floor under a chair in the front bedroom and various packaging material.

CONCLUSIONS OF LAW

(13) “In a private home, ‘searches and seizures without a warrant are presumptively unreasonable Absent probable cause and exigent circumstances, the entry of a home without a warrant is prohibited under the Fourth Amendment.” Commonwealth v. Roland, 535 Pa. 595, 599, 637 A.2d 269, 270 (1994). (internal citations omitted)

(14) Roland sets forth a number of factors to be considered in determining whether exigent circumstances exist, including: “(1) [T]he gravity of the offense, (2) whether the suspect is reasonably believed to be anned, (3) whether there is above and beyond a clear showing of probable cause, (4) whether there is strong reason to believe that the suspect is within the premises being entered, (5) whether there is a likelihood that the suspect will escape if not swiftly apprehended, (6) whether the entry was peaceable, and (7) the time of the entry, i.e., whether it was made at night. These factors are to be balanced against one another in determining whether the warrantless intrusion was justified.” Id. at 599, 637 A.2d at 270-71.

(15) Other factors that a court should consider include “whether there is [a] hot pursuit of a fleeing felon, a likelihood that evidence will be destroyed if police take the time to obtain a warrant, or a danger to police or other persons inside or outside the dwelling.” Id. at 599, 637 A.2d at 271.

(16) However, “police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests.... Where an offense being investigated by police is a minor one, balancing of the foregoing factors should be weighted against finding that exigent circumstances exist.” Id. at 599-600, 637 A.2d at 271 (citing Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984)). (citations omitted)

(17) Additionally, an entry made at night raises particular concerns over the reasonableness of the entry. See Commonwealth v. Demshock, 854 A.2d 553, 556 (Pa. Super. 2004) (citing Commonwealth v. Williams, 483 Pa. 293, 299, 396 A.2d 1177, 1180 (1978)).

(18) The burden is on the Commonwealth to demonstrate the existence of exigent circumstances sufficient to overcome the presumption of unreasonableness that attaches to all warrantless entries into a private home. Id.

(19) And as the Pennsylvania Supreme Court noted in Roland, “It is difficult to conceive of a warrantless home arrest that would not be unreasonable under the Fourth Amendment when the underlying offense is extremely minor.” Supra at 600, 637 A.2d at 271 (suppressing evidence seized pursuant to a warrantless search of a home where the offense involved was summary underage drinking). See also, Commonwealth v. Demshock, 854 A.2d 553 (Pa. Super. 2004) (suppressing evidence of a warrantless search of a residence where the offenses involved were summary underage drinking and misdemeanor marijuana possession).

(20) Here, this court concludes that the Commonwealth has not met its burden in establishing the existence of exigent circumstances sufficient to overcome the presumption of unreasonableness that attaches to all warrantless entries into a private home.

(21) Although Officer Driesbach’s actually saw the defendant throw two small “incher” firecrackers from his apartment window, the offense the officer observed was a minor summary offense that presented no immediate danger to persons or property. This court is familiar with “incher” firecrackers and, while these firecrackers are illegal, they are unlikely to damage property. Nor was there evidence that anyone was present in the vicinity, and therefore, no evidence of risk of harm to any person other than the defendant himself. There appears to be little risk that the defendant would flee, and the entry occurred late at night. These factors weigh against finding exigent circumstances.

(22) While Officer Driesbach expressed concern for his safety, this court is not convinced that his fears were reasonable. Considering the minor, non-violent nature of the offense, the noises that the officer heard inside the apartment were just as likely to have been created by the defendant’s search for identification as they were to have been created by the defendant’s search for a weapon. Furthermore, if Officer Driesbach did fear for his personal safety, a more prudent course of action would have been to call for back up and to remain outside the apartment until his fellow police officers arrived to assist him, rather than enter the apartment as he did.

(23) Having carefully considered the totality of the circumstances, this court finds that there were no exigent circumstances supporting Officer Driesbach’s warrant-less entry into, and search of, the defendant’s residence and that for the above reasons, the defendant’s motion for suppression of evidence must be granted.

ORDER

And now, December 5, 2006, upon consideration of the defendant’s omnibus pretrial motion for relief, it is hereby ordered and decreed that defendant’s motion for suppression of evidence is hereby granted.


author: KUNSELMAN, P.J.,

text:
    Cavoulas v. Singh

      C.P. of Beaver County,
    G.D. no. 10315 of 2002.

      William S. Schweers, for plaintiff.

      Ann M. Wilson, for defendants.
    November 15, 2005
   KUNSELMAN, P.J.,

Before the court are preliminary objections filed on behalf of defendants Amar J. Singh M.D. and UPMC Beaver Valley. For the following reasons, defendants’ preliminary objections will be sustained in part and overruled in part.

The factual and procedural history of this case is as follows. On February 20, 2002, plaintiff, Harry M. Cavoulas, filed a praecipe for a writ of summons against defendants. The writ was captioned as “Harry M. Cavoulas, executor of the estate of Helen Mae Cavoulas, deceased, plaintiff, v. Amar J. Singh M.D., and Aliquippa Community Hospital, defendants.” Plaintiff later filed a complaint with the same caption. In this complaint, plaintiff alleged that plaintiff’s decedent, his wife, Helen Mae Cavoulas, died on March 2,2000 due to defendants’ alleged negligence. Specifically, plaintiff avers in the complaint that his wife underwent heart catheterization surgery performed by Dr. Singh at Aliquippa Community Hospital on February 28, 2000. Plaintiff also avers that plaintiff’s decedent complained of being in pain during the post-procedure period; she was released later that day. Plaintiff further sets forth in his complaint that on March 1,2000, plaintiff’s decedent was taken to the operating room, where he alleges that it was discovered that plaintiff’s decedent had necrosis and infarction of the small bowel. Plaintiff avers that his wife passed away early the next morning. In his complaint, plaintiff sets forth one count of negligence against each defendant, asserting causes of action for wrongful death and survival.

Defendants filed preliminary objections, alleging lack of capacity to sue and failure of pleading to conform to law. Specifically, defendants contend that a will has never been probated and an estate has never been opened for plaintiff’s decedent. In support of their contention, defendants attach as exhibit C a letter dated August 26, 2005 from the Beaver County Register of Wills stating that as of that date there was neither an estate nor a death registered for plaintiff’s decedent in the Beaver County Register of Wills’ office. In sum, defendants argue that because plaintiff is the surviving spouse of plaintiff’s decedent, but is not a person that the law recognizes as being a personal representative of the decedent, plaintiff is not a person that the law recognizes as competent to maintain an action. Therefore, defendants assert that the action must be dismissed.

In response, plaintiff argues that the court should apply the doctrine of relation back to validate the complaint. Plaintiff admits that the will of plaintiff’s decedent has not been probated. However, plaintiff attaches a copy of plaintiff’s decedent’s will to his brief in opposition to defendants’ preliminary objections. The will sets forth that plaintiff is nominated and appointed to be the executor of the will.

In sum, plaintiff argues that in this case defendants were placed on notice prior to the running of the statute of limitations that an action had been filed against them by an individual who was named executor of plaintiff’s decedent’s estate. Thus, plaintiff argues that the doctrine of relation back should operate to ratify post-appointment the commencement of an action by a personal representative of an estate. As such, plaintiff asserts that defendants’ preliminary objections should be overruled and plaintiff should be directed to open his wife’s estate.

In support of his argument, plaintiff cites Wilkes-Barre General Hospital v. Lesho, 62 Pa. Commw. 222, 435 A.2d 1340 (1981) and Prevish v. Northwest Medical Center, 692 A.2d 192 (Pa. Super. 1997) for the proposition that a court may validate the filing of a complaint in certain situations where the executor of an estate is appointed after the limitations period has expired. In Lesho, the Commonwealth Court held that the Administrator of the Arbitration Panels for Health Care had correctly determined that the principles of relation back applied to the facts of that wrongful death and survival case. 62 Pa. Commw. at 225, 435 A.2d at 1342. In that case, Rosemary Lesho died on June 19, 1977. Approximately two months later the decedent’s parents filed a petition in Orphans’ Court to settle their daughter’s estate; the petition was later granted. On June 14, 1978, the Leshos filed a notice complaint with a caption naming them as “administrators” in the filing office of the Arbitration Panels for Health Care. The Leshos later filed a complaint in the same office on August 14, 1978 wherein they identified themselves in the caption and the body as the administrators of the estate of Rosemary Lesho. After preliminary objections were filed, an amended complaint was filed with the same caption. The defendants later filed motions for summary judgment, asserting that because letters of administration had not been applied for nor granted until October 3,1979, the complaint should be dismissed as being untimely as it was not filed within time period allotted in accordance with the statute of limitations. The administrator determined that the doctrine of relation back applied and thus denied the motions for summary judgment.

On appeal, the Commonwealth Court defined the doctrine of relation back as follows: “[sjimply stated, the doctrine of relation back as applied to cases where an estate is a party means that the courts under certain circumstances will validate the acts of the personal representative of the estate which preceded the date of his official appointment.” 62 Pa. Commw. at 225, 435 A.2d at 1342. The Commonwealth Court further noted that the doctrine has remained viable over time. Id. In analyzing the facts of the case before it, the court reviewed several older cases in which the relation back doctrine was applied. For instance, the court noted that in McGuire v. Erie Lackawanna Railway Co., 253 Pa. Super. 531, 385 A.2d 466 (1978), the issue was the same as in the case before it: “should the action be barred by the statute of limitations because the plaintiff had not been granted letters of administration until after the statute had run?” Id. at 226, 435 A.2d at 1342. The Commonwealth Court noted that the Superior Court in McGuire determined “that notwithstanding the fact that letters had not been granted to the plaintiff until after the statute of limitations had run, all of the objectives of the statute of limitations had been met within the statutory period.” Id. Moreover, the Lesho court noted that the reasoning in McGuire was followed in D ’Orazio v. Locust Lake Village Inc., 267 Pa. Super. 124, 406 A.2d 550 (1979) (holding that where the plaintiff had filed a petition for letters of administration and filed suit in a timely manner but had failed to execute the required bond, the doctrine of relation back applied even though the plaintiff was not appointed administratix of the estate until after the expiration of the two-year statute of limitations. D ’Orazio, 267 Pa. Super, at 128-29, 406 A.2d at 552.) Id.

After analyzing the facts of the case before it in relation to the relevant case law, the Lesho court concluded:

“It is true that in every case cited by counsel, where the doctrine has been applied, an application for letters was made before the statute of limitations expired .... Absolutely nothing was changed in the Leshos’ complaint by virtue of letters of administration having been granted to them after the statute of limitations had run. From the time the original complaint was filed, the petitioners were aware that they were being sued for their alleged negligence resulting in the death of a named decedent. Every element necessary to establish the two causes of action against the petitioners was set forth in the complaint, including the erroneous fact that the Leshos had been appointed administrators of their daughter’s estate. Interestingly, none of the petitioners’ answers specifically denied that the Leshos were the administrators of their daughter’s estate. It was only when leave was granted for the filing of an amended answer that the issue was raised. It is possible that the Leshos really thought they were the administrators of their daughter’s estate because of their previous petition and proceeding before the Orphans’ Court of Luzerne County. At the very least, the fact that both parents had been petitioners in that proceeding would discount the possibility of a renunciation by one of them, such as occurred in Lovejoy [v. Georgeff, 224 Pa. Super. 206, 303 A.2d 501 (1973)].

“In any event, it is our opinion that by permitting the doctrine to apply to the circumstances of this case, the acts of the administrators will have been validated, a just result will have been achieved, the estate will have been benefited and a remedy will not have been lost. Neither will the objectives of the statute of limitations have been disturbed.” Lesho, 62 Pa. Commw. at 227-28, 303 A.2d at 1343. (emphasis in original)

Plaintiff further cites Prevish v. Northwest Medical Center, 692 A.2d 193,204-205 (Pa. Super. 1997), which discussed the doctrine of relation back but held that the filing of the complaint in a survival action where the plaintiff was named as the executor after the limitations period had expired did not relate back to the filing of the writ of summons, which named decedent’s estate as the plaintiff. In that case, the decedent, Judith A. Bills, was hospitalized under the care of the defendant Dr. Robert Pilewski at defendant Northwest Medical Center from September 11,1992 until October 15,1992. The decedent died of unrelated causes on June 12,1994. On September 8, 1994, the decedent’s husband filed suit against the defendants by writ of summons. The caption of the writ listed the plaintiff as “Estate of Judith A. Bills, deceased.” Later, on November 18, 1994, the decedent’s husband filed a complaint alleging damages for survival due to the negligent treatment by the defendants wherein he identified the plaintiff as “Thomas D. Prevish, executor of the estate of Judith A. Bills, deceased.” The complaint set forth that decedent’s husband had been appointed executor onNovember 15,1994. Both ofthe defendants then filed preliminary objections to the complaint. The trial court entered an order sustaining the defendants’ preliminary objections and granting the motion to strike. In its opinion, the trial court noted that the writ of summons was filed before the expiration of the statute of limitations, but the complaint was filed after the limitations period had run. The trial court determined that because the estate had no capacity to sue and no personal representative had been designated until after the running of the statute of limitations, the plaintiff could not now amend the complaint. Further, the trial court refused to apply the doctrine of relation back.

On appeal, the Superior Court considered whether the doctrine of relation back should have been applied. First, the court noted: “[i]t is settled law that a decedent’s estate cannot be a party to litigation unless a personal representative exists.” Id. at 200 (quoting Estate of Gasbarini v. Medical Center of Beaver County, 487 Pa. 266, 409 A.2d 343 (1979) (other citations omitted)). Specifically, the Prevish court noted that “all actions that survive a decedent must be brought by or against the representative of the decedent’s estate.” Id. at 200. (citations omitted) Upon considering the plaintiff’s argument that the doctrine of relation back should apply to allow the complaint to be validated, the Prevish court noted: “where a plaintiff, acting as the personal representative of an estate, initiates an action before the statute of limitations has run, but also before his or her appointment as personal representative has been finalized, the doctrine of relation back may be applied in appropriate circumstances to validate the filing of the action, even though the plaintiff’s appointment is not finalized until after the limitations period has expired.” 692 A.2d at 201. (citations omitted) The Superior Court noted that in contrast to Lesho and related cases,

“The writ of summons was the only document filed before the limitations period expired, and its caption identifies the estate of the decedent as the plaintiff. Such a writ is, of course, a nullity. Moreover, the writ does not identify the executor of the estate, nor does it inform the defendants that there is, even potentially, an executor (that is, that the decedent died testate). Concerning the parties’ relationship, these facts evidence ‘the sort of instability that statutes of limitation seek to preclude.’ McGuire, supra.

“Appellant has cited no case, and we are aware of none, in which the relation back doctrine was applied to ratify, post-appointment, the attempted commencement of an action by a personal representative whose existence was in no way suggested by the pleading that he filed. We decline to extend the doctrine to encompass such a situation. Accordingly, we affirm the trial court’s order dismissing the complaint.” Prevish, 692 A.2d at 204-205.

In the case at bar, plaintiff’s decedent died on March 2,2000, allegedly as the result of defendants’ negligence; plaintiff filed a writ of summons on February 20, 2002, and later filed a complaint on May 27,2005. The writ of summons and complaint designated the plaintiff as “Harry M. Cavoulas, executor of the estate of Helen Mae Cavoulas, deceased.” Paragraph 1 of the complaint states that “[t]he plaintiff is the surviving spouse of the late Helen Mae Cavoulas, and is the executrix (sic) of the estate.” Complaint, paragraph 1. It is undisputed that plaintiff has not applied for letters testamentary nor attempted in any manner to probate his wife’s will and open her estate.

The Rules of Civil Procedure provide:

“(a) Except as otherwise provided in clause (b) of this rule, an action for wrongful death shall be brought only by the personal representative of the decedent for the benefit of those persons entitled by law to recover damages for such wrongful death.

“(b) If no action for wrongful death has been brought within six months after the death of the decedent, the action may be brought by the personal representative or by any person entitled by law to recover damages in such action as trustee ad litem on behalf of all persons entitled to share in the damages.

“(c) While an action is pending it shall operate as a bar against the bringing of any other action for such wrongful death.” Pa.R.C.P. 2202.

The term “personal representative” is defined as “the executor or administrator of the estate of a decedent duly qualified by law to bring actions within this Commonwealth.” Pa.R.C.P. 2201. Further, in accordance with 20 Pa.C.S. §3373, “[a]n action or proceeding to enforce any right or liability which survives a decedent may be brought by or against his personal representative alone or with other parties as though the decedent were alive.” 20 Pa.C.S. §3373. Accordingly, a survival action must be brought by a personal representative of a decedent’s estate; a wrongful death action must be brought by a personal representative if it is filed within six months of the decedent’s death and by a personal representative or by a person entitled to recover damages by law if the suit is filed after six months following the decedent’s death.

In the instant matter, the caption of the writ of summons and complaint along with the body of the complaint set forth that plaintiff is the executor of the estate of Helen Mae Cavoulas. Thus, defendants have been placed upon notice that they are being sued for their alleged negligence resulting in the death of plaintiff’s wife, and that plaintiff was the purported executor of his wife’s estate. In contrast to the factual scenario in Lesho, however, wherein the decedent’s parents did not apply for and were not granted letters of administration until after the statute of limitations had expired, in the instant matter plaintiff has not applied for letters of administration. Thus, there is no personal representative “duly qualified by law to bring actions ....” This court cannot validate the acts of a personal representative of an estate which preceded the executor’s official appointment when there has been no appointment and there is no personal representative. Thus, there is nothing to relate back to.

However, in Pennsylvania, claims pursuant to the Wrongful Death Act and the Survival Act are distinct actions. See Pezzulli v. D’Ambrosia, 344 Pa. 643, 26 A.2d 659 (1942). Under Pa.R.C.P. 2202, an action for wrongful death filed after six months of the decedent’s death is not required to be brought by the personal representative of the decedent’s estate. Pa.R.C.P. 2202(b). Thus, this court will dismiss that portion of the complaint which alleges the survival action; however, pursuant to Pa.R.C.P. 2202, relating to the parties entitled to bring an action for wrongful death, this court will allow plaintiff to amend the caption of the complaint to name plaintiff as trustee ad litem on behalf of all persons entitled to share in any damages awarded in this matter.

Based upon the foregoing, the court enters the following order:

ORDER

Based on the foregoing memorandum opinion, it is hereby ordered and decreed that defendants’ preliminary objections are sustained as to the survival action and overruled as to the action for wrongful death. Plaintiff shall have 20 days from the date of notice of this order to file an amended complaint wherein plaintiff may amend the complaint to name the plaintiff as Harry M. Cavoulas, trustee ad litem in accordance with Pa.R.C.P. 2202(b). The portions of plaintiff’s complaint referencing a survival action are stricken.

      . In the cover page to the preliminary objections filed on behalf of defendants, defendants note that plaintiff has incorrectly identified UPMC Beaver Valley as Aliquippa Community Hospital.

      . The statute of limitations for both wrongful death and survival actions is two years. 42 Pa.C.S. §5524(2).