author: BELTRAMI, J.,

text:
    HSBC Bank USA, N.A. v. Stevens

      C.P. of Northampton County,
    No. C-48-CV-2014-857

      M. Troy Freedman, for plaintiff.

      Robert Glazer, for defendant.
    April 22, 2015
   BELTRAMI, J.,

This matter is before the court on plaintiff’s motion for summary judgment (“motion”), filed on December 29,2014. Plaintiff initiated this action on February 5, 2014, by filing a complaint in mortgage foreclosure (“complaint”), naming Simon A. Eisenhardt (“Eisenhardt”), Executor of the Estate of Carolyn J. Shellenberger (“Shellenberger”), deceased, as a defendant. On April 28, 2014, Kim I. Stevens, acting as the administrator of Shellenberger’s Estate (“Stevens”), filed an answer to plaintiff’s complaint on behalf of the estate. The caption on the answer identified Stevens, rather than Eisenhardt, as the representative of the estate. On May 27,2014, Stevens filed a statement of material facts, pursuant to Pa.R.C.P. No. 2352(a), which indicated that Eisenhardt had renounced his position as the executor of Shellenberger’s estate and that Stevens had been granted letters of administration d.b.n.c.t.a. of the estate. Attached to the statement was a short certificate indicating that letters of administration d.b.nx.t.a had been granted to Stevens on April 17, 2014.

Plaintiff filed the instant motion on December 29, 2014, and it seeks a judgment for foreclosure. On January 26, 2015, Stevens filed both an answer to plaintiff’s motion (“response”) and a brief in opposition to plaintiff’s motion. On February 25, 2015, plaintiff filed a reply brief in support of its motion. The case was placed on the January 27, 2015, argument court list and was submitted to the undersigned for disposition on brief. For the reasons that follow, plaintiff’s motion will be granted.

On March 14, 2005, Shellenberger executed and delivered to Mortgage Electronic Registration Systems Inc. (“MERS”) a mortgage on real property located at 818 Stones Crossing, Easton, Pennsylvania (“property”) as security for the repayment of a mortgage loan in the amount of $66,900.00. (Mot. ¶ 4, Exs. A, Al; Resp. ¶ 4.) An assignment of the mortgage from MERS to plaintiff was recorded on September 26,2007, and that assignment was corrected by a corrective assignment recorded on August 20, 2012. (Compl. ¶ 6, Ex. C; Answer ¶ 6.) Shellenberger died on March 15, 2013. (Statement ¶ 1.) The mortgage loan has not been paid since June 1, 2013, and is in default. (Mot. ¶¶ 7-8, Exs. B, C.) On August 9, 2013, plaintiff mailed pre-foreclosure notices pursuant to 41 Pa.C.S.A. § 403 (“Act 6 Notice”) and 12 Pa. CODE § 31.203 (“Act 91 Notice”). (Mot. ¶ 9, Ex. D.) Both notices were sent via certified mail to the property and were addressed to Shellenberger. (Id. )

Plaintiff moves for summary judgment on the theory that there is no genuine dispute as to any material fact and the mortgage is in default, entitling it to judgment as a matter of law. Stevens responds that summary judgment is not warranted because there is no proof that the pre-foreclosure notices were properly served, and the assignment of the mortgage to plaintiff was improper and, thus, not valid.

Pennsylvania Rule of Civil Procedure 1035.2 establishes the standard of review for a motion for summary judgment as follows:

After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.

Pa.R.C.P. No. 1035.2. These two prongs represent the

two main avenues per which summary relief may be granted. Employing the first of these, a movant may rely on uncontroverted facts, and/or allow that the factual allegations made by the non-moving party could be true, while contending that, even accepting such facts, judgment should be rendered for the movant as a matter of law. See Pa.R.C.P. No. 1035.2(1). Alternatively, after discovery, a party may challenge the ability of the non-moving party to adduce evidence of facts material to establishing a claim or defense. See id. No. 1035.2(2).

Lance v. Wyeth, 85 A.3d 434, 449-450 (Pa. 2014).

Under either avenue, summary judgment may only be granted when the record clearly shows that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010). The moving party bears the burden of proving that no genuine issue of material fact exists. Barnish v. KWI Bldg. Co., 916 A.2d 642, 645 (Pa. Super. 2007). In deciding a motion for summary judgment, the record must be viewed in the light most favorable to the non-moving party, and any doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. Ario v. Ingram Micro, Inc., 965 A.2d 1194, 1200 (Pa. 2009). Even where the facts are agreed upon, summaiy judgment cannot be entered if the facts can support conflicting inferences. Washington v. Baxter, 719 A.2d 733, 740 n.10 (Pa. 1998).

The party opposing a motion for summary judgment

may not rest upon the mere allegations or denials of the pleadings but must file a response within thirty days after service of the motion identifying
(1) one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion, or
(2) evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.

Pa.R.C.P. No. 1035.3(a)(l)-(2). In other words, the “[fjailure of a non-moving party to adduce sufficient evidence on an issue essential to its case and on which it bears the burden of proof such that a jury could return a verdict in its favor establishes the entitlement of the moving party to judgment as a matter of law.” Young v. Commonwealth, Dep’t of Transp., 744 A.2d 1276, 1277 (Pa. 2000). In deciding a motion for summary judgment, the “record” available for the court’s examination includes the pleadings, discovery materials, affidavits, and expert reports. Pa.R.C.P. No. 1035.1.

In a mortgage foreclosure action, summary judgment is appropriate if the mortgagors “admit that the mortgage is in default, that they have failed to pay interest on the obligation, and that the recorded mortgage is in the specified amount.” Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa. Super. Ct. 1998) (citing Landau v. W. Pa. Nat’l Bank, 445 Pa. 217, 282 A.2d 335, 340 (Pa. 1971)). Summary judgment may be granted “even if the mortgagors have not admitted the total amount of the indebtedness in their pleadings.” Id.

U.S. Bank, Nat. Ass’n v. Zimmer, No. 3:12-CV-644, 2015 WL 412389, at *2 (M.D. Pa. Jan. 20, 2015).

Stevens raises three arguments in her brief in opposition to plaintiff’s motion. First, Stevens argues that there is no evidence that the pre-foreclosure notices were sent by certified or registered mail. This is incorrect. Attached to plaintiff’s motion as Exhibit D are both the Act 6 notice and the Act 91 notice. Both notices indicate that they were sent by certified mail, and each identifies the certified mail number used. (Mot. Ex. D.) Also attached are corresponding envelopes, addressed to Shellenberger, containing the same certified mail numbers. (Id.) The relevant statutes require only that the notices be mailed by certified mail, and there is no requirement that the mortgagee provide proof of receipt or of mailing. See 41 P.S. § 403(b); 12 'Pal CODE § 31.203. Plaintiff has provided evidence of compliance with these requirements. Moreover, as noted above, a party opposing summary judgment may not rest on the mere denials in its pleadings but must point to evidence in the record establishing the facts essential to a defense such as this. Stevens has provided no such evidence, making this argument meritless.

Stevens’ second and third arguments concern the assignment of the mortgage to plaintiff. In this regard, Stevens argues there is no such creature as a “corrective” assignment and that the 2012 assignment is not properly attested to under the applicable law, making the assignment to plaintiff invalid. (Def.’s Br. at 4.) These arguments are, in essence, a claim that plaintiff lacks the capacity to sue. “[Preliminary objections [are] the appropriate method by which to challenge a [plaintiff’s] capacity to sue.” In re Adoption of S.P.T., 783 A.2d 779, 782 (Pa. Super. 2001); Pa.R.C.P. No. 1028(a)(5). “Lack of capacity to sue is waived if not raised on preliminary objections.” Carroll v. Exeter Twp., No. 1580 C.D.2013, 2014 WL 3812323, at *6 n.18 (Pa. Commw. Aug. 4, 2014). Thus, defendant has waived her second and third arguments. Even if those arguments had not been waived, they are without merit. See JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1265-66 (Pa. Super. 2013) (note secured by mortgage is negotiable instrument governed by state’s Uniform Commercial Code, and alleged defects in chain of assignments to purported mortgagee did not therefore affect any right of mortgagee to enforce note).

WHEREFORE, the court enters the following:

ORDER OF COURT

And now, this 22nd day of April, 2015, “plaintiff’s motion for summary judgment,” filed on December 29, 2014, is hereby granted.

Judgment in foreclosure is hereby entered in favor of plaintiff and against defendant Kim I. Stevens, Administrator D.B.N.C.T.A. of the Estate of Carolyn J. Shellenberger, for the sum of $75,512.95, plus interest at the per diem rate of $9.76 until the judgment is paid in full, plus any additional recoverable costs and charges collectible under the subject mortgage, which shall also be added to this judgment.

      . The original mortgagee, MERS, was acting as nominee for HSBC Mortgage Corporation (“Lender”). (See Compl. ¶ 5, Ex. B; Answer ¶ 5.) The 2007 assignment named MERS as the assignor, without reference to its status as nominee for Lender. (See Compl. ¶ 6, Ex. C; Answer ¶ 6.) The 2012 assignment is titled “corrective corporate assignment of mortgage,” the purpose of which was “to correct the assignor on the assignment recorded on 9/26/07.” (See Compl. ¶ 6, Ex. C; Answer ¶ 6.) This subsequent assignment names the assignor as “[MERS] as nominee for [Lender], its successors and assigns.” (See Compl. ¶ 6, Ex. C; Answer ¶ 6.) Stevens contests the validity of the 2012 assignment and, therefore, denies that the mortgage loan was ever properly assigned to plaintiff. (See Resp. ¶ 6.)

      . In her answer, Stevens denied that the mortgage is in default. (See Answer ¶ 8.) However, her denial is a general denial, which, pursuant to Pa.R.C.P. No. 1029(b), constitutes an admission that the mortgage is in default. See also First Wisconsin Trust Co. v. Strausser, 653 A.2d 688, 691-92 (Pa. Super. 1995). Further, Stevens has had ample time to produce evidence that the mortgage is not in default. Yet, in her response to plaintiff’s motion, she merely puts forth additional general denials to the allegation that the mortgage is in default. (See Mot. ¶¶ 7-8; Resp. ¶¶ 7-8.) Therefore, there is no material issue of fact regarding whether the mortgage is in default.


source: Caselaw Access Project

author: MASSIAH-JACKSON, J.,

license: Public Domain

text:
    Sutch v. Roxborough Memorial Hospital

      William T. Hill and Brian R. Fitzgerald, for plaintiffs.

      Nancy K. Raynor, for defendants Jeffrey Geller and Roxborough Emergency Physicians Associates, LLC.
    May 15, 2015
   MASSIAH-JACKSON, J.,

I. FACTUAL BACKGROUND and PROCEDURAL HISTORY

In May, 2007, Mrs. Rosalind Wilson, went to Roxborough Memorial Hospital in Philadelphia suffering from headache, chest pains, and shortness of breath. Following a chest x-ray, the radiologist identified a suspicious nodule and wrote on a Hospital STAT sheet and in her report a recommendation for CT scan with followup examinations. During Mrs. Wilson’s overnight stay, the doctors ruled out cardiac problems and pulmonary embolism at the hospital, however, her treating physicians did not advise her of the 2.3 centimeter nodule in her left lung. Twenty months later, in January, 2009, Rosalind Wilson learned that she had Stage IV lung cancer. The malignant nodule had grown to 8 centimeters and metastasized. Mrs. Wilson died on July 21, 2009, at age 70 years.

Her daughter, Rosalind W. Sutch, initiated this medical malpractice litigation in July, 2009 against the Hospital, the radiologist, the emergency room physician, and several staff physicians who participated in treatment during Mrs. Wilson’s May 3-4, 2007 stay.

In June, 2012, following a jury trial plaintiff-Estate was awarded $190,000.00. The trial judge granted post-trial motions and in October, 2012, a new trial was ordered. The Honorable Superior Court affirmed that determination by memorandum filed on November 4, 2013. The litigation was remanded for a new trial on the issues of both liability and damages, and against all parties. 3246 EDA 2012.

For nearly three weeks in the Fall, 2014, this court presided over the re-trial of this medical malpractice action. The jury heard from 22 witnesses, including experts in the fields of emergency medicine, hospital administration, internal medicine, geriatrics, family medicine, oncology, pulmonology, radiology, critical care, economics, nursing and more. On November 4, 2014, the jury returned a verdict in favor of the Estate of Rosalind Wilson as follows: survival action, $965,550.00 and wrongful death action, $1,010,163.00. The total award for compensatory damages was $1,975,713.00. Liability was attributed to defendant-Emergency Room Physician-Jeffrey Geller, M.D. and Roxborough Emergency Physician Associates (“Geller”) at 33.3%, defendant-Staff Physician-Melanio Aguirre, M.D. at 33.3% and defendant-Hospital at 33.4%. The Radiologist, Barbara Goldman Robins, M.D. was found not liable.

Post-trial motions were filed by all parties. The court and counsel coordinated a briefing schedule applicable only to plaintiff-Estate, Geller and Dr. Robins. Oral argument was heard on May 7, 2015. After careful consideration of the issues raised by the parties, all motions for post-trial relief are denied in their entirety.

II. LEGAL DISCUSSION

A. Judgment Notwithstanding the Verdict is Not Appropriate in This Case.

Judgment notwithstanding the verdict (“JNOV”) may be entered only in a clear case. If any basis exists upon which the jury could have properly made its award, the verdict will not be overturned. Quinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1074 (Pa. 2006); Somerset Community Hospital v. Allan B. Mitchell & Assoc., Inc., 685 A.2d 141, 146 (Pa. Superior Ct. 1996).

There are only two bases upon which a court may enter JNOV. The first is when the movant is entitled to judgment as a matter of law. The second is when the evidence is such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. Quinby v. Plumsteadville Family Practice, Inc., supra and cases cited at 907 A.2d 1074; Moure v. Raeuchle, 604 A.2d 1003, 1007 (Pa. 1992). JNOV is an extreme remedy. Considering only the evidence which supports the verdict, the court must give the verdict winner the benefit of all doubt and of every fact and inference deducible from the evidence. Griffin v. University of Pittsburgh Medical Center-Braddock Hospital, 950 A.2d 996, 999 (Pa. Superior Ct. 2008); Robertson v. Atlantic Richfield Petroleum Products Co., 537 A.2d 814, 819 (Pa. Superior Ct. 1987). JNOV is not appropriate in this case.

The basis for the defendant’s JNOV motion is set forth in Geller’s post-trial brief at page 5:

“Plaintiff failed to present sufficient, competent evidence to establish a prima facie cause of action for negligence against Geller because factual predicates for her experts’ opinion testimony were lacking. Specifically, the evidence presented at trial on behalf of plaintiff was insufficient to prove any breach of duty on Geller’s part.” (emphasis in original)

In Sutherland v. Monogahela Valley Hospital, 856 A.2d 55 (Pa. Superior Ct. 2004), the Superior Court considered the proof required to present a cause of action in medical negligence, citing Mitzelfelt v. Kamrin, 584 A.2d 888 (Pa. 1990); Montgomery v. South Philadelphia Medical Group, Inc., 656 A.2d 1385 (Pa. Superior Ct. 1995). The Sutherland Court held at 856 A.2d 60:

“A cause of action sounding in negligence for medical malpractice requires proof of four elements: (1) the medical practitioner owed a duty to the patient; (2) the practitioner breached that duty; (3) the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient; and, (4) the damages suffered by the patient were the direct result of the harm.”

See also, Sokolsky v. Eidelman, 93 A.3d 858, 863 (Pa. Superior Ct. 2014).

The plaintiff presented Stephanie Porges, M.D., the Director of the Emergency Department at the Hospital of the University of Pennsylvania, as the expert witness in emergency medicine. October 27, 2014, N.T. 41-69. Dr. Porges testified with a reasonable degree of professional certainty that Dr. Geller’s deviation from the standard of care was the cause of Mrs. Wilson not being told she had a nodule on her lung.

Plaintiff’s expert opined that if Dr. Geller did not receive the test results before Mrs. Wilson’s care was transferred to Dr. Aguirre, then as the ordering doctor he should have documented and communicated in the chart “results still pending”, October 27,2014, N.T. 93,116, to alert the next provider to review the test results.

Plaintiff’s expert opined that if Dr. Geller did receive the test report, as indicated by the notation “cc: Dr. Geller,” and if he read the report, then the standard of care required that he order a CT scan for follow-up on the nodule. October 27, 2014, N.T 114-116.

The plaintiff’s expert testified that defendant-Geller properly ordered the V/Q scan which includes the two-viewx-ray. October 27, 2014,N.T. 100-101,103,106-107. The expert noted, however, that “As the physician who is responsible for the patient, you ordered the tests, you’re asking the question, you get the results.” October 27, 2014, N.T. 117. Whether the patient care was transferred to Dr. Aguirre at 2:30 p.m. or at 4:30 p.m. on May 3,2007, there is no documentation to indicate what information Dr. Geller provided to Dr. Aguirre about the test or the test results. October 27, 2014, N.T. 117-118.

The emergency physician is responsible to ensure that “somebody else is going to find out that result.” October 27, 2014, N.T. 123, 151. He had the responsibility to ensure information is passed on to the new provider and that all things are followed up. Dr. Porges concluded that Dr. Geller failed to make sure that either he or the next provider checked the V/Q scan test results. October 27, 2014, N.T. 116-118. This expert evidence was sufficient to establish the prima facie negligence.

Defendant-Geller contends that the factual basis of the plaintiff’s expert opinion was flawed, therefore he is entitled to JNOV. This court does not agree. Based on the record and the reasonable inferences, Dr. Stephanie Porges concluded that Dr. Geller did receive a copy of the preliminary report. October 27, 2014, N.T. 91-92, and that the two-view x-ray revealed a “worrisome” 2.3 centimeter nodule. October 27, 2014, N.T. 114-116. The defendant argues that there was no evidence he received the documents, in his post-trial brief at page 6:

“Unfortunately for the plaintiff, the record evidence fails to establish any of those so-called “facts.” As explained more fully below, these “facts” constitute nothing more than mere assumptions, conjecture and speculation. Because Pennsylvania law requires that expert testimony be based upon facts proven on the record, Porges’ opinion testimony against Geller in this regard is clearly insufficient as a matter of law to “prove” the negligence claim asserted against him.” (emphasis in original)

In this litigation, defendant-Geller corroborated and confirmed the testimony of defendant-Robins and all other witnesses. He stated that the hospital’s routine practice was that he was suppose to receive the STAT sheet from the radiologist because he was the ordering physician. And, as the ordering physician, the hospital’s routine practice was that he was suppose to receive the preliminary report of the tests he ordered. October 30, 2014 (P.M.), N.T. 3-107; October 31, 2014 (A.M.), N.T. 74-87. This evidence of the routine practice at Roxborough Hospital was properly admitted and relied on by the expert witness for the purpose of showing that specific behaviors on May 3,2007 conformed to that practice. Plaintiff-Estate did establish a prima facie case that the STAT report was delivered to Dr. Geller as the emergency room physician. Plaintiff-Estate did establish a prima facie case that the preliminary test results which noted “cc: Dr. Geller” was delivered to Dr. Geller.

Rule 406 of the Pennsylvania Rules of Evidence states:

“Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or there was an eyewitness.”

See also, Beaver Valley Alloy Foundry Co. v. Therma-Fab, Inc., 814 A.2d 217 (Pa. Superior Ct. 2002) and cases cited at 223-224.

When considering a motion for JNOV, the evidence must be considered in the light most favorable to the verdict winner. Every reasonable inference of fact and any conflict in the evidence must be resolved in plaintiff-Estate’s favor. Here, the defendant-movant is not entitled to judgment as a matter of law. Nor is this a case where no two reasonable minds could disagree that the outcome should have been rendered in favor of defendant-Geller.

B. Defendant-Geller’s Motion for a New Trial is Without Merit.

A trial court has broad discretion to grant or deny a new trial. In the circumstances presented here, the record supports the trial court’s evidentiary rulings and the jury’s determinations of liability, causation and damages. See generally, Criswell v. King, 834 A.2d 505, 512 (Pa. 2003), a new trial based on the weight of the evidence only in “truly extraordinary circumstances”; Armbruster v. Horowitz, DDS, 813 A.2d 698, 703 (Pa. 2002), credibility is solely for the jury and a new trial appropriate only when the verdict shocks one’s sense of justice; Martin v. Evans, 711 A.2d 458 (Pa. 1988), the juiy is free to believe all, part or none of the witnesses’ testimony, Morrison v. Commonwealth of Pennsylvania, 646 A.2d 565, 571 (Pa. 1994), the trial court must first determine whether mistakes were made during the trial; Gunn v. Grossman, M.D., 748 A.2d 1235, 1243 (Pa. Superior Ct. 2000), to constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful to the complaining litigant; Johnson v. Hyundai Motors, 698 A.2d 631, 635 (Pa. Superior Ct. 1997), a new trial is warranted when there is a palpable abuse of discretion or an error of law which controls the outcome of the case.

1. The jury saw and heard at least nineteen medical witnesses, including expert witnesses and treating physicians. It was a classic “battle” of conflicting expert opinions. All of these trial witnesses possessed extensive knowledge, skill, experience, training and education in their fields of expertise. Defendant-Geller contends that the verdict was against the weight of the evidence. In Renna v. Schadt, M.D., 64 A.3d 658 (Pa. Superior Ct. 2013), the appellate court reiterated the long-standing principle at 669:

“The general rule in this Commonwealth is that a weight-of-the-evidence claim is primarily addressed to the discretion of the judge who actually presided at trial. Armbruster v. Horowitz, 572 Pa. 1, 813 A.2d 698, 702 (2002). Since credibility determinations are within the jury’s realm, the authority of the trial judge to upset a verdict premised upon a weight claim is narrowly circumscribed. A trial judge cannot grant a new trial ‘because of a mere conflict in testimony or because the trial judge on the same facts would have arrived at a different conclusion.’ Thompson v. Philadelphia, 507 Pa. 592, 493 A.2d 669, 672 (1985). Instead, a new trial should be granted only in truly extraordinary circumstances, i.e., ‘when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.’”

See also, Hatwood v. Hospital of the University of Pennsylvania, 55 A.3d 1229, 1238 (Pa. Superior Ct. 2012).

The plaintiff’s expert, Dr. Stephanie Porges was unequivocal in her presentation that defendant-Geller breached the standard of care when he either failed to personally obtain the result of the tests he ordered, or, when he neglected to document that such results were pending. October 27, 2014, N.T. 116-118. The defendant’s expert in emergency medicine Thomas Rebbecci, M.D. practices at Cooper University Hospital. October 28, 2014, N.T. 4-35. Dr. Rebbecci opined that Dr. Geller did meet the standard of care in communication, acceptance of transfer, and documentation. October 28, 2014, N.T. 53-56, 62-64. Because there was conflicting expert evidence presented to the jury, the challenge to the weight of the evidence cannot succeed. The jury was free to believe all or part or none of the evidence.

Defendant-Geller’s motion for new trial is not sustainable. Dr. Geller testified that if the STAT sheet or the preliminary V/Q scan report had been delivered to him with “abnormal” results, he would have promptly made the physician responsible for the patient aware. October 30, 2014, N.T. 99-105; October 31, 2014, N.T. 74-87. He adamantly denied ever receiving either the STAT sheet or the test results. If the jury accepted his testimony that neither the STAT sheet nor the test report was delivered to him, the hospital records confirm that Dr. Geller did not document the charts to alert the next provider — and the defendant was negligent. If the jury determined that Dr. Geller was not credible and that he did receive one or both of the documents but failed to take follow-up care, then the defendant was negligent. The verdict does not shock one’s sense of justice and the record supports the outcome.

On pages 6-8 of Geller’s post-trial brief and at our hearing on May 7, 2015, the defendant suggests that the entry of an order for the V/Q scan was sufficient notice to subsequent medical providers. At page 6, the argument is inaccurately framed as a “concession” by the plaintiff’s expert:

“Importantly, however, on cross examination, Porges conceded that the order for the VQ scan was clearly indicated in Ms. Wilson’s chart and, further, that (where, as here, the results were not documented in the chart) that order entry was — itself — an indication to subsequent healthcare providers (taking the time to review the chart) that the results of that study were pending.”

Defendant-Geller’s position is misguided. The legal issue in this malpractice litigation was not whether subsequent treaters had notice of a V/Q scan Order. Rather, Dr. Porges testified that Dr. Geller deviated from the standard of care by failing to document in writing that the test results were pending. October 27, 2014, N.T. 116-118. It was this failure by Dr. Geller which substantially contributed to Mrs. Wilson not receiving the requisite medical advice and increased the risk that she would have a bad outcome. October 27, 2014, N.T. 118-120.

The fact that other providers may or may not have had notice of an order for a V/Q scan does not relieve this defendant from liability for his deviation from the standard of care in the emergency room on May 3, 2007.

2. The defendant contends that the jury should have been permitted to know his “life experiences in dealing with his father’s lung cancer [which] absolutely impacts his practice and state of mind with respect to lung nodules — i.e., by, among other things, informing his medical decision-making as well as sensitizing him to the issue of lung nodules.” Geller motion, Paragraph 37; Geller post-trial brief, pages 25-33. The trial court determined that whether or not Dr. Geller was sensitive or sensitized to lung cancer would not advance the relevant inquiry for the jury, which included, did Dr. Geller receive the STAT sheet and/or did Dr. Geller receive the preliminary test report. If defendant did receive one or both documents and failed to act, then he was negligent.

The proffered evidence was meant to buttress his defense that because he was sensitive and/or sensitized he would not have ignored the abnormal findings. Defendant-Geller argues that evidence of his state of mind and his thought processes were relevant to demonstrate that he complied with the standard of care. Geller post-trial brief, pages 26-30. This argument must fail because the law in Pennsylvania does not allow consideration of subjective state of mind of a doctor when he is a treating a patient. See, Buckman v. Verazin, M.D., 53 A.3d 956, 963-964 (Pa. Superior Ct, 2012).

Moreover, defendant’s reliance on Rule 406 of the Pennsylvania Rules of Evidence is misplaced. The proffered testimony pertains to a generalized state of mind rather than repeated conduct, thus, an analysis of whether the conduct is sufficiently regular is not possible. The comment to Rule 406 states in part:

“Evidence of habit must be distinguished from evidence of character. Character applies to a generalized propensity to act in a certain way without reference to specific conduct, and frequently contains a normative, or value-laden, component (e.g., a character for truthfulness). Habit connotes one’s conduct in a precise factual context, and frequently involves mundane matters (e.g., recording the purpose for checks drawn).”

There was no ability for the trial court or the jury to assess whether the defendant’s thought process based on his life experiences occurred with sufficient regularity to make it more probable that he would follow the standard of care in every instance or even in most instances. Accordingly, the fact that Dr. Geller’s father had lung cancer was not relevant and the evidence was properly precluded.

3. Rule 227.1(b) of the Pennsylvania Rules of Civil Procedure states:

“(b) Except as otherwise provided by Pa.R.E. 103(a), post-trial relief may not be granted unless the grounds therefor,
(1) if then available, were raised in pre-trial proceedings or by motion, objection, point for charge, request for findings of fact or conclusions of law, offer of proof or other appropriate method at trial; and
(2) are specified in the motion. The motion shall state how the grounds were asserted in pre-trial proceedings or at trial. Grounds not specified are deemed waived unless leave is granted upon cause shown to specify additional grounds.”

Defendant-Geller complains that counsel for co-defendants did not fairly provide sufficient time for him to testify and present his expert witness. He also complains that co-counsel made improper comments during closing arguments. Geller post-trial brief, pages 34-38. Because none of these issues were brought to the attention of the trial court in November, 2014, all of these issues are waived.

The four defense trial attorneys represented the hospital and related corporate entities, named and unnamed staff physicians, and at least three named treating physicians. It was left up to these seasoned trial counsel and their clients to juggle the timing and strategies for the order and presentation of evidence and the content of closing arguments.

It is hornbook law that litigants are expected to make timely and specific objections during trial. Issues which are raised for the first time in post-trial motions are deemed waived. See generally, Harman v. Borah, M.D., 756 A.2d 1116 (Pa. 2000) and numerous cases cited at 1124-1125; Craley v. Jet Equipment & Tools. Inc., 778 A.2d 701, 707 (Pa. Superior Ct. 2001). Defendant-Geller’s arguments have not been preserved for review.

C. Plaintiff-Estate’s Cross-Motion for New Trial is Without Merit

In this case, the plaintiff-Estate seeks another new trial, but is unable to articulate how it has been harmed or prejudiced by any of the trial court’s evidentiary rulings. Our Pennsylvania Appellate Courts consistently note that evidentiary rulings which do not affect the verdict will not provide a basis for disturbing the jury’s judgment. See generally, Schuenemann v. Dreemz, LLC, 34 A.2d 94, 99 (Pa. Superior Ct. 2011) quoting Schmidt v. Boardman, 958 A.2d 498, 516 (Pa. Superior Ct. 2008); Pittsburgh Construction Co. v. Griffith, 834 A.2d 572, 585 (Pa. Superior Ct. 2003) noting erroneous admission of evidence is not grounds for new trial where no harm or prejudice resulted.

In 2012, references to the decedent’s life long smoking habits were precluded and the verdict award was $190,000.00.

In 2014, references to decedent’s life long smoking habits were told to the jury and the verdict award was $1,975,713.00.

Plaintiff seeks another new trial where references to the decedent’s life long smoking habits will be precluded. No where in any written submission has plaintiff articulated a legal or factual basis for a finding of harm or prejudice to warrant another new trial. Without more, all of plaintiff-Estate’s new trial motions are denied.

1. Dr. Gilbert D’Alonzo, a defense “damages” expert in pulmonary and critical care medicine submitted his report in January, 2014. When he testified on October 30, 2014, his opinions were well within the scope of his report as he explained to the jury the basis of his conclusions that Mrs. Wilson’s life expectancy was compromised due to her continued smoking, her atherosclerosis, progressive peripheral vascular disease, and chronic obstructive pulmonary disease (COPD). Dr. D’Alonzo concluded that Mrs. Wilson would not have survived 15 additional years, but rather “three years beyond that of her death,” that is, to 2012.

The plaintiff contends that Dr. D’Alonzo should not have been permitted to testify at trial because his expert report was submitted after case management deadlines. Here, as in Augustine v, Delgado, M.D., 481 A.2d 319 (Pa. Superior Ct. 1984), we must focus upon the period of time from counsel’s awareness of the expert to the time of Dr. D’Alonzo’s trial testimony, 481 A.2d at 324. While late disclosure of the identity of an expert is not ideal, the mere occurrence of such a circumstance is not per se grounds for new trial. See, Kemp v. Qualls, M.D., 473 A.2d 1369 (Pa. Superior Ct. 1984), holding that thirteen days to investigate and prepare for an expert witness is sufficient; Augustine v. Delgado, M.D., supra, concluding that 50 days provided ample opportunity to study and develop a strategy.

In the case at bar, counsel had 10 months to prepare, however, he chose not to. On October 16,2014, plaintiff’s counsel advised the court and all defense counsel that neither he nor his seven expert witnesses had prepared for Dr. D’Alonzo’s testimony. Significantly, the seven experts had never even seen Dr. D’Alonzo’s expert report in the 10 months since it was issued in January, 2014. October 16, 2014, N.T. 67-68; October 30, 2014, N.T. 16.

When determining whether an expert’s trial testimony falls within the fair scope of his pre-trial report, the trial court must avoid unfair surprise and determine whether the report provides sufficient notice of the expert’s theories to make a meaningful response. Tiburzio-Kelly v. Montgomery, 681 A.2d 757 (Pa. Superior Ct. 1996).

The defense expert reviewed numerous records, expert reports, all medical records, imaging studies, chest x-rays and physician reports. October 30, 2014, N.T. 36. Dr. D’Alonzo’s pre-trial report summarized Mrs. Wilson’s medical history and concluded on page 5:

“I have been asked to express a medical opinion concerning Ms. Wilson’s life expectancy without the development of metastatic lung cancer. It is my opinion that her life expectancy was considerably shortened for a variety of reasons. She was actively smoking cigarettes her entire adult life and has clear-cut evidence of chronic obstructive pulmonary disease. Furthermore, and very importantly, she has a combination of hypertension, obesity, peripheral vascular disease and hyperlipidemia. This combination is tightly associated with metabolic syndrome, a group of risk factors that increase the risk for coronary artery disease and stroke. Her peripheral vascular disease would be considered substantial if not severe. Peripheral vascular disease can be considered a marker for coronary artery disease.... Per the medical records, it is much more likely than not that she also had coronary artery disease.”

Dr. D’Alonzo’s trial testimony was consistent and revealed no surprises: He reviewed his fifty page curriculum vitae as a tenured Professor of Medicine at Temple University Medical School for 26 years, and was proffered as an expert in pulmonology, critical care, cancer with lung cancer specialty, and, staging of cancer. October 30, 2014, N.T. 19-34; testified about Mrs. Wilson’s co-morbidities prior to diagnosis of lung cancer, including hypertension, hyperlipidemia, thyroid disease, orthostatic hypotension, neurovascular disease, and COPD, N.T. 37; review of the 2007 imagining studies which showed emphysema and COPD, N.T. 43-54; effects of smoking, inflammation, staging of cancer, N.T. 65-72; explanation of his opinion on survival rate and life expectancy, N.T. 73. Plaintiff had the opportunity for vigorous cross-examination, including references to disputed expert opinions by different witnesses, N.T. 74-106.

The Superior Court held in Feden v. Consolidated Rail Corporation, 746 A.2d 1158 (Pa. Superior Ct. 2000), that so long as a party is not prevented from making a meaningful response, an expert’s trial testimony is fair. In this case, counsel for plaintiff-Estate was able to point out the absence of medical treatment for the co-morbidities, and reminded the witness and jury that two of plaintiff’s experts reached different determinations. N.T. 85-89. This court cannot conclude that Dr. D’Alonzo unfairly prejudiced the presentation of plaintiff’s case. See also, Jacobs v. Chatwani, M.D., 922 A.2d 950, 962 (Pa. Superior Ct. 2007), where Superior Court noted “strikingly,” the plaintiff failed to establish prejudice or surprise when her own experts rebutted the challenged opinions of a defense expert.

2. The purpose of a jury charge is to provide guidance to jurors in their deliberations. It is important that the trial court inform the jury of the law applicable to the facts of the case. It is well-settled that instructions should be confined to the issues raised and developed by the trial. Here, where the requested instruction is not based on the evidence presented, it was declined. If an instruction was given which referred to matters not mentioned by witnesses during trial, it could mislead or confuse the jury.

This court removed all evidence relating to Mrs. Wilson’s smoking cessation counselling, her continued smoking after her diagnosis, and expert opinion that cancer nodules grow faster in smokers than non-smokers. The jury was not told that Mrs. Wilson did not go to any doctors for annual check-ups and that neither she nor her family complied with the Roxborough Hospital physicians’ discharge recommendations for follow-up cardiac evaluations and testing. October 30, 2014, N.T. 5-15, 39-43.

Plaintiff submitted a proposed jury instruction about cigarette smoking and causation issues which the trial court concluded did not reflect evidence submitted during the many weeks of trial. November 3, 2014, N.T. 96-98. This court explained to counsel that he could argue to the jury factors relating to smoking in his closing argument. November 3, 2014, N.T. 111-112. In McManamon v. Washko, 906 A.2d 1259 (Pa. Superior Ct. 2006), the appellate court held that jury instructions as a whole were proper and there was no need for specific instructions which did not reflect the facts of the case. In the case at bar, all counsel submitted a joint point for charge describing factual cause, Pa. SSJI (Civ.) §14.20 on November 3, 2014, N.T. 307-308, which was read to the juiy by the court.

The McManamon Court quoted Raskin v. Ford Motor Co., 837 A.2d 518, 523 (Pa. Superior Ct. 2003) and Stewart v. Motts, 654 A.2d 535, 540 (Pa. 1995), as follows, at 906 A.2d 1271:

“A reviewing court will not grant a new trial on the grounds of inadequacy of the charge unless there is a prejudicial omission of something basic or fundamental.”

3. Personnel matters relating to parties or witnesses are relevant if, and only if, the evidence will advance the cause of action. Pennsylvania Rule of Evidence 401, provides the test for relevant evidence:

“Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.”

Evidence that is not relevant is not admissible. See, Rule of Evidence 402.

Cross-examination of Dr. Robins’ expert witness, Ethan Halpem, M.D. about Dr. Robins’ plans to retire neither tended to establish that Dr. Robins actually did have too many responsibilities, or, that her retirement plans had any bearing on Mrs. Wilson’s situation. Multiple layers of speculation would not support a logical or reasonable inference of the existence of consequential facts as per Rule 401. Irrelevant evidence should not be received by a court. Reichman v. Wallach, 452 A.2d 501, 508-509 (Pa. Superior Ct. 1982).

It was for these same reasons that this court precluded defense counsel from questioning plaintiff’s expert in hospital administration, Mr. Robert Goodwin, about his involuntary moves from job to job. Those inquiries were not designed explore qualifications, but rather to embarrass the witness. But compare, Hawkey v. Peirsal, 869 A.2d 983, 990 (Pa. Superior Ct. 2005), holding that such inquiries are relevant to qualifications.

4. Finally, when defendant-Robins was asked to speculate about defendant-Geller’s expectations relating to a hospital record STAT sheet, the court requested that counsel rephrase the question. He chose not to do so. The information was presented later without referring to Dr. Geller’s state of mind. October 29, 2014, N.T. 124, 127-128,131-138. Moreover, counsel also had the opportunity to question Dr. Geller directly about his expectations relating to the STAT sheet on October 31, 2014.

D. Vestiges of The First Trial Do Not Entitle Parties to a Third Trial.

Plaintiff-Estate makes an argument for another new trial by relying on claims entitled “law-of-the-case,” at post-trial brief, dated February 27, 2015, page 13:

“The law-of-the-case doctrine required this court to honor Judge Panepinto’s smoking order because as a pre-trial ruling it was not nullified by the grant of a new trial....
The law-of-the-case doctrine required this court to honor the Superior Court’s finding that evidence of Mrs. Wilson’s smoking was unfairly and highly prejudicial and that defendants waived their right to challenge the smoking order.” (citations omitted)

This trial court did read, understand and abide by the Superior Court’s ruling. In November, 2013, the appellate court held that Mrs. Wilson’s smoking history was not relevant either to the cause of the 2.3 cm nodule or to causation of her Stage IV cancer. The appellate court noted that evidence of her smoking history would distract the jury from impartially weighing evidence and might provoke the jury to improperly hold Mrs. Wilson responsible for contributing to her lung cancer. 3246 EDA 2012, at 15-16:

“It is undisputed that evidence of decedent’s smoking habit was irrelevant to the issue of causation, and this case was not bifurcated on the issue of liability and damages.”

At the retrial in 2014, this trial court recognized that the Superior Court did not decide the distinct issue of whether smoking was relevant to the issue of damages. Accordingly, here as in George v. Ellis, 911 A.2d 121, 126 (Pa. Superior Ct. 2006), a different legal issue was presented on remand. The law of the case doctrine did not preclude evidence of smoking as it related to damages.

For more than 70 years Pennsylvania has held that in civil proceedings when a retrial is granted, the rulings of the previous trial court on the admissibility of evidence are not binding on the new trial judge. In Commonwealth v. Hart, 387 A.2d 845 (Pa. 1978), our Pennsylvania Supreme Court provided a comprehensive overview of Pennsylvania’s civil practice when it adopted the same rule for criminal cases. 387 A.2d at 847:

“... upon the grant of a new trial, the prior judgment is set aside and the case, including all matters raised by the pleadings, is restored to the status it has been before any trial took place as though no trial had been held.”

See also, Arthur v. Kuchar, 682 A.2d 1250, 1255-1256 (Pa. 1996) noting that the grant of a new civil trial restores the case to it is original status to be tried de novo as to all parties and all issues; Banohashim v. R.S. Enterprises, LLC, 77 A.3d 14, 27 n. 6 (Pa. Superior Ct. 2013), the grant of a new trial wipes the slate clean of the former trial, quoting Commonwealth v. Oakes, 392 A.2d 1324, 1326 (Pa. 1978).

Plaintiff-Estate was not surprised or prejudiced by evidence of smoking as it related to the damage claims of the defendants, i.e., Mrs. Wilson’s life expectancy. Plaintiff’s own experts submitted reports in 2011, which included comments about Mrs. Wilson’s smoking habits.

On October 21, 2014, the jury heard Dr. Richard Simons, plaintiff’s expert in internal medicine and geriatrics opine that Mrs. Wilson had a history of mild chronic conditions which were asymptomatic. N.T. 117. Dr. Simons concluded that after considering her smoking, control of her high blood pressure, and good family support, Mrs. Wilson had a full life expectancy of 15.46 additional years. N.T. 119-123.

On October 22,2014, Dr. Richard Hirshman, plaintiff’s expert witness in medical oncology and internal medicine told the jury that Mrs. Wilson smoked and had “minor co-morbidities” in May, 2007. He opined that her life expectancy was 15.4 years to age 83. N.T. 50-53.

It was up to the jury to balance and weigh the opinions of those experts with the testimony of the defense expert, Dr. Gilbert D’Alonzo. See, Havasy v. Resnick, 609 A.2d 1326, 1334 (Pa. Superior Ct. 1992), holding that when testimony of defense experts rebuts evidence from plaintiff’s experts, the jury must determine credibility and weight of conflicting testimony.

After consideration of the circumstances present here, the law of the case doctrine is not applicable and this court did not alter the resolution of a legal question previously decided by the Superior Court.

Defendant-Geller contends that when he was denied his right to counsel of his choice he suffered prejudice when the jury found him liable for the harm to plaintiff. At the first trial in 2012 the jury found in favor of Dr. Geller. In the 2014 second trial, when he was represented by a different attorney, his liability was apportioned at 33.3 percent. Dr. Geller argues that he is entitled to a new trial with counsel of his choice.

The issue raised at this juncture is not whether the orders for disqualification were proper. Nor does this defendant contend that his second trial counsel was incompetent. Rather, defendant-Geller asserts that he was denied his constitutional right to be represented by counsel of his own choosing in this civil litigation. This court does not agree.

Our Pennsylvania Supreme Court has held that in criminal matters the criminal defendants’ right to counsel of their own choosing must be weighed and balanced with the Commonwealth’s interest in swift, efficient and effective administration of justice. Accordingly, in certain circumstances, “a reasonable curtailment of the sixth and fourteenth amendment is not constitutionally offensive.” Moore v. Jamison, 306 A.2d 283, 291 (Pa. 1973). See also, Pitillo v. Takiff, 341 A.2d 896, 905 (Pa. 1975).

Dr. Geller relies on Nestor v. George, 46 A.2d 469 (Pa. 1946), where the Supreme Court acknowledged that a civil litigant’s right to counsel is integral to due process of law, at 473;

“[I]t is the constitutional right of every accused ‘to be heard by himself and his counsel,’ so likewise in civil cases, a litigant’s right to be fully represented by counsel is an integral part of that ‘due process of law’ which every resident of this state and nation whose legal rights are being adjudicated can freely invoke.”

See also, 42 Pa. C.S.A. §2501(a). The courts have stated, however, that the civil litigant’s right to counsel does not encompass an absolute right of representation by a specific counsel of one’s choosing, e.g., Papalia v. Montour Auto Service Co., 682 A.2d 343 (Pa. Superior Ct. 1996), where there was no allegation that substitute counsel was not competent or not prepared, litigant rejected the opportunity to be represented at the trial; Princess Hotels International v. Hamilton, 413 A.2d 1064 (Pa. Superior Ct. 1984), where there was no allegation of negligence or lack of preparation, litigant could not simply change attorneys one week prior to trial and seek continuance; Snyder v. Port Authority of Allegheny County, 393 A.2d 911 (Pa. Superior Ct. 1978), non-suit affirmed and right to counsel not infringed when litigant changed attorneys three days before trial.

There are also circumstances when an individual’s right to his own freely chosen counsel cannot be upheld in the context of disqualification orders. See, Slater v. Rimar, Inc., 338 A.2d 584, 589-590 (Pa. 1975); McCarthy v. SEPTA, 772 A.2d 987, 989-991 (Pa. Superior Ct. 2001). The Third Circuit Court of Appeals has commented that civil litigants do not have an absolute right to retain particular counsel even when their attorney of choice has represented them for a number of years and is disqualified. IBM v. Levin, 579 F.2d 271, 283 (3rd Cir. 1978). See also, Richardson-Merrell. Inc. v. Koller, 472 U.S. 424, 438-440 (1985), where Justice O’Connor wrote the opinion for the court holding that there must be an assessment of the effect of the substitute counsel after a judgment before a court can decide if a civil litigant’s right to counsel has been prejudiced. Justice Brennan recognized only a “qualified right” in civil cases to retain an attorney of one’s choice (Brennan, J. Concurring Opinion, 472 U.S. at 441-442).

In the case at bar, when an assessment of substitute counsel is made, this trial court enthusiastically concludes that Dr. Geller’s trial counsel was well-prepared, competent, and articulate and a zealous and effective advocate for her client. The verdict in the second trial did result in a finding of liability, however, the apportionment was equally balanced with the other defendants. The record simply does not support the contention that Dr. Geller’s right to a particular attorney was compromised or prejudiced as a result of the substitution of trial counsel in 2014.

III. DELAY DAMAGES

At the post-trial hearing held on May 7, 2015, defendant-Geller argued that equitable principles support his position that delay damages should not be awarded to plaintiff-Estate for any period after July 1,2011. This court does not agree. Arthur v. Kuchar, 682 A.2d 1250, 1255-1257 (Pa. 1966). Accordingly, 33.3% of the compensatory damages award is $657,912.42, to which 33.3% of the delay damages amount of $120,731.43, will be added. A judgment order in the amount of Seven Hundred Seventy Eight Thousand Six Hundred Forty Three Dollars and Eighty Five Cents ($778,643.85) will be entered in favor of plaintiff-Estate and against defendant-Geller. See correspondence dated May 11, 2015 and May 14, 2015, filed on docket. (Control No..14111623).

IV. CONCLUSION

The jury determined that defendant Barbara Goldman Robins, M.D. was not liable for any harm to plaintiff-Decedent, Rosalind Wilson. Judgment will be entered in favor of defendant-Robins.

For all of the reasons set forth above, the motions for post-trial relief filed by Jeffrey Geller, M.D. and Roxborough Emergency Physician Associates, LLC are denied.

For all of the reasons set forth above, the cross-motions for post-trial relief filed by Rosalind W. Sutch, as Executrix of the Estate of Rosalind Wilson are denied.

JUDGMENT ORDER/GELLER

And Now, this 15 th day of May, 2015, after consideration of all of the motions for post-trial relief filed by the parties, the responses thereto, after oral argument held on May 7, 2015, and for the reasons set forth in the memorandum filed this date, it is hereby

Ordered that judgment is entered in favor of the Estate of Rosalind Wilson in the amount of Seven Hundred Seventy Eight Thousand Six Hundred Forty Three Dollars and Eighty Five Cents ($778,643.85) and against defendants Jeffrey Geller, M.D. and Roxborough Emergency Physician Associates, LLC.

JUDGMENT ORDER/ROBINS

And now, this 15th day of May, 2015, after consideration of all of the motions for post-trial relief filed by the parties, the responses thereto, after oral argument held on May 7, 2015, and for the reasons set forth in the memorandum filed this date, it is hereby

Ordered that Judgment is entered in favor of Barbara Goldman Robins, MD.

ORDER

And now, this 15 th day of May, 2015, after consideration of the cross-motion for post-trial relief filed by plaintiff Estate of Rosalind Wilson, defendants’ responses thereto, after review of all post-trial briefs submitted from all parties, after oral argument held on May 7, 2015, and for the reasons set forth in the memorandum filed this date, it is hereby ordered that the cross-motion filed by plaintiff-estate is denied in its entirety.

ORDER

And now, this 15th day of May, 2015, after consideration of the motion for post-trial relief filed by defendants Jeffrey Geller, M.D. and Roxborough Emergency Physician Associates, LLC, all responses thereto, after review of all post-trial briefs submitted from all parties, after oral argument held on May 7, 2015, and for the reasons set forth in the memorandum filed this date, it is hereby ordered that the motion filed by these defendants is denied in its entirety.


author: MOTTO, P.J.,

text:
    Kline v. Capots

      C.P. of Lawrence County,
    No. 10987 of 2005 CA

      Shawn A. Sensky, for plaintiffs and additional plaintiff.

      Louis Pomerico, for defendants and additional defendant.
    Jan. 27, 2015
   MOTTO, P.J.,

Before the court for disposition are the preliminary objections to plaintiffs’ and additional plaintiff’s second amended complaint filed on behalf of the defendants David J. and Bette J. Capots and additional defendant Urie Byler. Although a number of issues are raised in the preliminary objections, the court finds the two dispositive issues are as follows:

1. Did the plaintiffs Kline lose the capacity to claim title to the disputed real estate on a claim of adverse possession when the plaintiffs executed and delivered a deed to the additional plaintiff Johnston, during the pendency of this action, that described only the real estate to which the Klines held record title.
2. Does the amended complaint establish as a matter of law that plaintiff Johnston cannot establish title to the disputed real estate on a claim of adverse possession because Johnston is not in privity with the Klines and cannot tack onto the Klines period of possession.

In addition to defendants’ preliminary objections to the second amended complaint, defendants also presented a motion for partial summary as to Count I, Count II, Count III and Count IV of the plaintiffs’ original complaint. Specifically, defendants contend that because plaintiffs and additional plaintiff are unable to produce expert testimony to establish the boundary line as alleged in the complaint and cannot dispute the survey of defendants’ expert engineer, they are therefore unable to prove that they hold title to the disputed property and defendants are entitled to partial summary judgment under Pa.R.C.P. 1035.2, as to such counts.

This action arises from a property boundary dispute regarding a piece of undeveloped woodland in Taylor Township, Lawrence County. On July 3,2004, defendants David and Bette Capots hired the Michael Baker Corporation to complete a survey of their property along Route 168 in Taylor Township having the permanent parcel ID #33-079900 and #33-080000. Defendants’ property is located directly to the North of plaintiffs Harold and Ethel Kline’s 57.14 acres of property along Route 168 in Taylor Township. Plaintiff’s property is identified by permanent parcel ID #33-071100. At defendants request, David LaPearle, a licensed professional surveyor, conducted a metes and bounds survey of the defendants’ property which relied upon a multitude of historical maps and deeds and determined that the defendants’ are the owners of the disputed property which is described as follows:

From a point on the intersection of the center line of Hawthorne Road, (a 33 foot right-of-way) with the West line of a 300 foot First Energy right-of-way, thence on a course of North 01° 29’29” West along said right-of-way a distance of 103.18 feet to a point, the place of beginning; thence along plaintiffs’ property on a course of North 89° 00’45” West a distance of 1,408.98 feet to a point; thence along plaintiffs’ property on a course of North 16°13’31” West a distance of 200.00 feet to a point; thence along plaintiffs’ property on a course of North 89° 00’45” West a distance of 158.91 feet to a point on the East right-of-way of State Route 168; thence along the East right-of-way lone of State Route 168 on a court of North 10° 13’57” West a distance of 744.33 feet to a point; thence along the South line of defendants’ property on a course of North 73° 40’22” East a distance of 1,819.92 feet to a point on the West line of said First Energy right-of-way; thence along the West line of said First Energy right-of-way on a course of South 02° 23 ’31 ” East a distance of 1,131.44 feet to a point, the place of beginning.

After the completion of the survey, defendants began preparations to harvest trees from their property. In July 2004, defendants contracted with Jeff Bloise Logging to harvest timber from defendants’ property as defined by the professional survey.

According to the complaint, plaintiffs sent a letter dated July 22, 2004, to defendants and the logging company notifying them that plaintiffs owned 40 acres of property claimed by the defendant and advised defendants to refrain from harvesting trees from the disputed area until the true boundary line could be determined. On July 29, 2005 upon direction by defendants the loggers began harvesting trees from the portion of the property in dispute. On August 9,2005 the plaintiffs hired Ross Taylor of Taylor Engineering to complete a property survey of the plaintiffs’ land to determine if the land the defendants’ harvested trees from belonged to plaintiffs. Ross Taylor’s survey opined that plaintiffs owned the 40 acres of land from which the defendants harvested timber; therefore, the plaintiffs filed a civil complaint against defendants David and Bette Capots alleging causes of action for trespass, conversion, ejectment and permanent injunction.

Subsequent to the filing of the complaint, the original plaintiff Ethel Kline died. On July 8,2008, plaintiff Harold Kline irrevocably transferred the real property known as permanent parcel ID #33-071100 by deed to additional plaintiff Sandra Johnston. Sandra Johnston is the daughter of the original plaintiffs. The conveyance to Sandra Johnston did not contain a metes and bounds description of the parcel of land nor did the conveyance contain any reference to any inchoate right, interest or title by way of adverse possession to the parcel. The plaintiffs Harold and Ethel Kline are now both deceased. The original defendants, David and Bette Capots, sold their property, which includes a description of the disputed 40 acre parcel of land, to Urie Byler by article of agreement. The court granted the parties motion to add Urie Byler as an additional defendant and Sandra Johnston as an additional plaintiff.

The parties participated in discovery and each party requested that the opposing party’s expert witness answer interrogatories and produce the documents relied upon in the survey. On May 19, 2006, Ross Taylor, the plaintiff’s expert, responded to defendant’s interrogatories. Thereafter, on August 28, 2006, defendants’ expert witness, David LaPearle, responded to plaintiffs’ interrogatories and request for documents. In February 2010 plaintiffs’ former counsel demanded depositions of the experts. Depositions of the two experts were scheduled and re-scheduled several times. On September 26, 2012 a deposition of defendants’ expert was conducted. The deposition of plaintiff’s expert was to be scheduled for a future date. On February 11, 2013 the plaintiffs’ expert arrived for his deposition but refused to have any testimony taken under oath and refused to testify as to any information contained in his survey of the property.

On April 11, 2013, the additional plaintiff filed an amended complaint alleging an additional alternative cause of action in adverse possession. Defendants filed preliminary objections to the amended complaint and the additional plaintiff responded by filing a second amended complaint on June 13, 2013. The defendants filed preliminary objections to the second amended complaint arguing lack of standing to make a claim for adverse possession and the legal insufficiency of the amended complaint citing a failure to allege sufficient facts to establish a cause of action in adverse possession. Additionally, the defendants have filed a motion for partial summary judgment arguing that after a lengthy period of extensive discovery and production of expert reports the plaintiffs have failed to produce evidence of the facts essential to their causes of action, namely legal ownership of the disputed property. Defendants contend because plaintiffs cannot produce evidence establishing the boundary line at the location alleged in the original complaint, and cannot dispute the defendant’s survey, defendants are entitled to summary judgment as a matter of law against plaintiffs as to Count I- Trespass, Count II- Conversion, Count III- Ejectment and Count IV-Permanent injunction of the original complaint.

Defendants argument that the deceased plaintiffs Harold and Ethel Kline lack the capacity to claim title based on a theory of adverse possession is based on the fact that on July 8, 2009, the plaintiffs transferred the property they identify in their complaint to additional defendant Sandra Johnston. Therefore, defendants argue that the Klines lack any cognizable interest, right or title to the disputed property and lack standing to bring a cause of action claiming ownership by adverse possession, having conveyed it away.

In seeking judicial resolution of a controversy, a party must establish as a threshold matter that he has standing to maintain the action. Stilp v. Commonwealth, 596 Pa. 62, 68, 940 A.2d 1227, 1233 (2007). The traditional concept of standing focuses on the idea that a person who is not adversely affected by the matter he seeks to challenge does not have standing to proceed with the court system’s dispute resolution process. William Penn Parking Garage v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269, 280-81 (1975). In Pennsylvania, the requirement of standing is prudential in nature. City of Philadelphia v. Commonwealth of Pennsylvania, 575 Pa. 542, 838 A.2d 566, 577 (2003). A challenge to the standing of a party to maintain the action raises a question of law. In re Milton Hershey sch., 590 Pa. 35, 911 A.2d 1258 (2006). A controversy is worthy of judicial review only if the individual initiating the legal action has been aggrieved. In re Hickson, 573 Pa. 127, 132, 821 A.2d 1238, 1243 (2003). This principle is based upon the practical reason that unless one has a legally sufficient interest in a matter, this is, is “aggrieved,” the courts cannot be assured that there is a legitimate controversy. Id. With respect to this requirement of being aggrieved, an individual can demonstrate that he is aggrieved if he can establish that he has a substantial, direct and immediate interest in the outcome of the litigation in order to be deemed to have standing. Id. An interest is substantial if it is an interest in the resolution of the challenge which “surpasses the common interest of all citizens in procuring obedience to the law.” Id. Likewise, a direct interest mandates a showing that the matter complained of caused harm to the party’s interest, i.e. a causal connection between the harm and the violation of law. City of Philadelphia v. Commonwealth of Pennsylvania, supra. 838 A.2d at 577. An interest is immediate if the causal connection is not remote or speculative. Id. The key to standing is that the person must be negatively impacted in some real and direct fashion. If the individual is not adversely affected in any way by the matter he seeks to challenge, he is not aggrieved thereby and has no standing to obtain a judicial resolution of his challenge. In re Hickson, 573 Pa. at 132, 821 A.2d at 1243.

In the instant case, a claim for the adverse possession of the disputed land is raised in Alternative Counts V and VI of the second amended complaint. To have standing to maintain an action in adverse possession the plaintiffs must have either have a real interest in the land claimed by defendants or some legal right, title or interest to the adverse possession of the land. According to the complaint, on July 8, 2008, plaintiff Harold Kline irrevocably transferred the real property known as permanent parcel ID #33-071100 to plaintiff Sandra Johnston. In the conveyance, the deed failed to explicitly transfer any incomplete inchoate rights to the adverse possession of the disputed land, or to describe the disputed tract of land that was allegedly being adversely occupied by plaintiffs.

Defendants rely on Castronuovo v. Sordoni, 357 Pa. Super. 187, 515 A.2d 927 (1986), in which the Pennsylvania Superior court explained the applicable law when an adverse possessor fails to transfer title by conveyance to the land that was adversely occupied as follows:

The possession of successive occupants may be tacked, but only where there is privity between them. Masters v. Local Union No. 472, united Mine Workers, 146 Pa. Super. 143, 22 A.2d 70 (1941). For our purposes, “privity” refers to a succession of relationship to the same thing, whether created by deed or other acts or by operation of law. Stark v. Lardin, 133 Pa. Super. 96, 1 A.2d 784 (1938).
But a deed does not of itself create privity between the grantor and the grantee as to land not described in the deed by occupied by the grantor in connection therewith, although the grantee enters into possession of the land not described and uses it in connection with that conveyed. The deed, in itself, creates no privity as to land outside its calls. Nor is privity created by the bare taking of possession of land previously occupied by the grantor. Our court has held that acceptance of a deed describing boundary lines confined the premises to the area within the boundaries, and that such a deed did not convey inchoate rights acquired by incompleted adverse possession. Each predecessor must have claimed title to the property in dispute, and in transferring to his successors must have purported to include it.

Castronuovo v. Sordoni, 357 Pa. Super, at 193-94, 515 A.2d at 930-31. (internal citations omitted).

In Castronuovo, the Superior Court found that in the absence of a conveyance of the inchoate rights to adversely possess a parcel, it must be assumed that the parcel was either occupied permissibly or that the grantor abandoned every intention of adversely holding the land before the conveyance. Id. at 194, 515 A.2d at 931. The assumption that an adverse possessor who fails to convey inchoate rights to adversely possess a parcel has either occupied the parcel permissively or abandoned every intention of adversely holding the property has been upheld by the courts of Pennsylvania on numerous occasions. See Baylor v. Soska, 540 Pa. 435, 658 A.2d 743 (1995)(holding that the only method by which an adverse possessor may convey the title asserted by adverse possession is to describe in the instrument of conveyance by means minimally acceptable for conveyancing of realty that which is intended to be conveyed); Wolfe v. Porter, 405 Pa. Super. 385, 592 A.2d 716 (1991)(holding that the period of plaintiff’s grantor’s possession could not be tacked on to period of plaintiff’s possession where title by adverse possession was inchoate and deed did not convey inchoate rights).

The court finds that the foregoing authorities are relevant only to the question of whether Johnston acquired any right to “tack” on to the adverse possession period acquired by the Klines and have no bearing on the independent right of the Klines to claim ownership by adverse possession. Castronuovo is distinguishable because it does address the interest of the grantor who has possessed the property for the full statutory period required for adverse possession, and who has not conveyed the ripened interest acquired by adverse possession. Here the claim is that the Klines did possess adversely for more than 21 years. The initial claim of the Klines was that their deed gave them title to the disputed land, based upon the survey maps of Ross Taylor. With Taylor having refused to support his survey by deposition, the Klines took the alternative method of pursuing title by adverse possession. This alternative theory assumes that their deed does not describe the disputed property. Therefore, if the deed held by them does not include the disputed property, their deed to Johnston cannot either, as it consists of the same description. One who has gained title by adverse possession cannot be found to have lost title by transferring other property that is separate and distinct from the property acquired by adverse possession.

Pennsylvania adheres to the majority view that a title may be gained by adverse possession even if the adverse possessor is occupying the property under a mistaken belief of ownership by title. Lyons v. Andrews, 226 Pa. Super. 351, 313 A.2d 313 (1973); Dimura v. Williams, 446 Pa. 316, 286 A.2d 370 (1972). The allegations of the second amended complaint regarding adverse possession rest solely on the alleged, actual, continuous, distinct and hostile possession of disputed land by the Klines for twenty one years. The Klines are proper parties to this lawsuit; the amended complaint contains sufficient allegatio'ns of adverse possession; the interest of the Klines has not been adjudicated relative to their claim of adverse possession; and the Kline deed to Johnston did not eliminate the Klines’ claim of adverse possession of the disputed land where the deed did not describe or include within it the disputed land. As such the title by adverse possession must be held to have retained by the Klines, if it can be proven to exist. However, in order to proceed to address any claim of the Klines to title by adverse possession there must be compliance with Pa.R.C.P. 2352, as a deceased person cannot be a party to an action. If a party dies after commencement of an action, the attorney of record must file a notice of death with the prothonotary. The procedure to substitute the personal representative of the deceased party is then in accordance with Rule 2352. The court therefore finds that pending compliance with Pa.R.C.R 2352 the Klines then may proceed with their action on a theory of adverse possession.

The next issue for consideration are the defendants’ preliminary objections to the claim of additional plaintiff Johnston asserting ownership of the disputed land by adverse possession. The court found that the claim of additional plaintiff Sandra Johnston for adverse possession against the defendant must be dismissed for failure to state a cause of action. The deed conveying the property owned by Kline to Sandra Johnston failed to include a description of or to transfer any inchoate rights to ownership by adverse possession of the disputed tract of land. When a conveyance fails to transfer inchoate rights of adverse possession, the successor in title may not tack the grantor’s time of adverse possession to their own. Baylor v. Soska, 540 Pa. at 440, 658 A.2d at 745. If the adverse possessor’s claim is to be passed on to a successor in title, there must be some objective indicia of record by which it can be discerned with some degree of certainty that a claim of title by adverse possession is being made and that the duration of this claim has been passed on to a successor in title. Id. 540 Pa. at 440, 658 A.2d at 746. Plaintiff Sandra Johnston has never occupied any portion of the disputed tract of land so as to have her own independent claim of adverse possession. Her claim rests solely upon the adverse possession by the Klines.

Preliminary objections in the nature of a demurrer will only be sustained in cases which are clear and free from doubt. “A preliminary objection in the nature of a demurrer is properly granted where the contested pleading is legally insufficient.” Cooper v. Frankford Health Care System, Inc., 960 A.2d, 134, 143 (Pa. Super. 2008)(citing Cardenas v. Schober, 783 A.2d 317, 321 (Pa. Super. 2001)). A demurrer must be resolved based solely on the pleadings, no testimony or evidence outside of the complaint may be considered to dispose of the legal issue presented. Id. “All material facts set forth in the pleading and all inferences reasonably deducible therefrom must be admitted as true.” Hess v. Fox Rothschild, LLP, 925 A.2d 798, 805 (Pa. Super. 2007)(citing Cardenas, supra.). A demurrer will only be sustained in cases where the complaint fails to set forth a valid cause of action. Lerner v. Lerner, 954 A.2d 1229, 1235 (Pa. Super. 2008)(citing McArdle v. Tronetti, 426 Pa. Super. 607, 627 A.2d 1219, 1221 (1993)). If a doubt exists regarding whether a demurrer should be sustained, the doubt must be resolved in favor of overruling the demurrer. R.W. v. Manzek, 585 Pa. 335, 351, 888 A.2d 740, 749 (2005)(citations omitted).

Under Pennsylvania law, the possession of successive occupants may be “tacked” for adverse possession purposes, but only where there is privity between the parties. Masters v. Local Union No. 472, United Mine Workers, 146 Pa. Super. 143, 22 A.2d 70 (1941). To establish the privity necessary to convey inchoate rights acquired by incomplete adverse possession, each predecessor must have claimed title to the property in dispute, and in transferring to his successors must have purported to include it in the conveyance. Baylor v. Soska, supra. 540 Pa. at 440, 658 A.2d at 745; Wolfe v. Porter, supra. 405 Pa. Super, at 189, 592 A.2 at 718. The familial relationship between parent and child does not create the privity necessary for tacking purposes. Wolfe v. Porter, 405 Pa. Super, at 190, 592 A.2 at 719; Castronuovo v. Sordoni, supra.

Prior to the decision in Baylor v. Soska, supra, a claimant could establish privity necessary for tacking purposes by either written conveyance or by other acts or circumstances extrinsic to the written deed. See Scheetz v. Fitzwater, 5 Pa. 126 (1846); Stark v. Lardin, 133 Pa. Super. 96, 1 A.2d 784 (1938). At issue in Baylor was whether the appurtenances that necessarily accompany the conveyance of real property conveys a greater area than that found in the grantor’s deed. Both the trial court and Superior Court held that the appurtenances necessarily conveyed with real property include all the appurtenances of the land, even those appurtenances that fall outside the four comers of the deed and are not described therein. On appeal, the Pennsylvania Supreme Court reversed and dismissed the “other circumstances” exception the lower court had relied upon and citing strong policy considerations, the Supreme Court found:

Interested parties have a right to discern from the record the state of the title of any parcel of land. If tacking were to be permitted because of vague, undefined circumstances, there could and most likely would be no way for one not a party to the conveyance to know this. But the law mandates that a person asserting a claim of adverse possession makes this assertion openly and notoriously to all the world. There must be no secret that the adverse possessor is asserting a claim to the land in question. If the adverse possessor’s claim is to be passed on to a successor in title, therefore, there must be some objective indicia of record by which it can be discerned with some degree of certainly that a claim of title by adverse possession is being made and that the duration of this claim has been passed on to a successor in title.

Baylor v. Soska, 540 Pa. at 440-41, 658 A.2d at 749.

Because the deed in Baylor granting the land to the plaintiffs failed to even minimally describe the disputed parcel, or set forth the adverse possession, the right to tack the previous grantor’s possession did not transfer and the plaintiffs’ action to quiet title by adverse possession failed. Id.

In the instant case, plaintiffs argue that while the deed transferring the property from Harold Kline to Sandra Johnston itself did not describe the real property that is the subject of the adverse possession claim, the deed did provide: “Together, with all the estate, right, title, interest, property, claim and demand whatsoever, of the grantor, in law as in equity, in and to the same and every part thereof, together with and singular building and improvement, ways, waters, watercourses, right, liberties, privileges, hereditaments and appurtenances whatsoever thereto belonging, or in anywise appertaining and the reversions and remainders, rents, issues and profits thereof.” The plaintiffs contend that the words “appurtenance” and “appertaining” indicate any adverse possession claims of grantors would be a part of the deed. Thus, Johnston argues that the deed from Harold Kline to Sandra Johnston did specifically include the real property subject to the adverse possession claim.

This court finds plaintiffs’ argument is similar to the argument that the Pennsylvania Supreme court rejected in Baylor v. Soska, supra. Where the court found that the only means by which an adverse possessor may convey the title asserted by adverse possession to a successor in title is to describe in the instrument of conveyance that which is intended to be conveyed by means minimally acceptable for the conveyance of realty. Id. at 440-41, 658 A.2d at 749. The decision in Baylor v. Soska and the abolishment of the “other circumstances exception” in cases of adverse possession was reaffirmed by the Pennsylvania Supreme Court in the case Zeglin v. Gahagen, 571 Pa. 321, 331-33, 812 A.2d 558, 568-69 (2002).

In the instant case, as was the case in Baylor v. Soska, supra., the conveyance from plaintiffs Kline to Sandra Johnston fails to even minimally describe the disputed parcel. Johnston must necessarily concede the lack of description in asserting adverse possession as an alternative theory. The law in Pennsylvania is clear on this matter. A deed conveys rights to only those lands described in the instrument, and a deed cannot transfer any rights to lands not described therein. Id. To convey an adverse interest in property the grantor must either describe the property held adversely in the conveyance or must explicitly transfer his inchoate rights to the incomplete adverse possession claim in the deed. Id. Here, the conveyance between plaintiffs Harold Kline and Sandra Johnston makes no reference by specific description or otherwise to any other lands owned by the Klines, or to any inchoate adverse possession rights of title to the disputed land. Since the deed does not create the privity necessary for plaintiff Johnston to claim the benefit of any adverse possession of plaintiff Kline, Johnston cannot make out a claim based on adverse possession.

Lastly, defendants contend they are entitled to summary judgment as to Count I-Trespass, Count 11-Conversion, Count Ill-Ejectment and Count IV-Permanent Injunction of the plaintiffs’ original complaint because the plaintiffs have failed to produce evidence of the facts essential to the causes of action and plaintiffs have no expert or verified survey proving ownership of the land.

Summary judgment may be granted only in cases where it is clear and free from doubt that there is no genuine issue as to any material fact and that the moving party is entitled to a summary judgment as a matter of law. Kafando Erie Ceramic Art Co., 764 A.2d 59, 61 (Pa. Super. 2000)(citing Rush v. Philadelphia Newspapers, Inc., 732 A.2d 648, 650-651 (Pa. Super. 1999)). A material fact, for summary judgment purposes, is one that directly affects the outcome of the case. Gerrow v. Silicones, Inc., 756 A.2d 697 (Pa. Super. 2000).

When determining whether to grant a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Hughes v. Seven Springs Farm Inc., 563 Pa. 501, 752 A.2d 339 (2000); Dean v. Commonwealth Department of Transportation, 561 Pa. 503, 751 A.2d 1130 (2000). Summary judgment is proper only when the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. P.J.S. v. Pennsylvania State Ethics Comm’n, 555 Pa. 149, 153, 723 A.2d 174, 175 (1999); Basile v. H&R Block, 761 A.2d 1115 (Pa. Super. 2001); Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000); Stevens Painton Corporation v. First State Insurance Company, 746 A.2d 649 (Pa. Super. 2000).

Only when the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment. Basile, supra. If there are no genuine issues of material fact in dispute or if the non-moving party has failed to state a prima facie case, summary judgment may be granted. Dudley v. USX Corporation, 414 Pa. Super. 160, 606 A.2d 916 (1992). Thus, a proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense. Rauch v. Mike-Mayer, 783 A.2d 815 (Pa. Super. 2001). The trial court must confine its inquiry when confronted with a motion for summary judgment to questions of whether material factual disputes exist. Township of Bensalem v. Moore, 152 Pa. Cmwlth. 540, 620 A.2d 76 (1993). It is not the function of the court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Pennsylvania Securities Commission, 143 Pa. Cmwlth. 494, 579 A.2d 1358 (1990).

Pursuant to Pa.R.C.P. 1035.2:

After the relevant pleadings are closed, but within such time as to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law:
(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.

In order to maintain the cause of action in trespass, conversion, ejectment and permanent injunction the plaintiffs must prove they have the right of actual possession of the disputed property as fee simple owners with a superior title as to that of the defendants.

To prove liability for Count I-Trespass, the plaintiffs’ must show that the defendants’ intentionally intruded on land of which the plaintiffs had legal right of possession. A defendant is liable for trespass for intentional intrusions on land “if he intentionally (a) enters land in the possession of the other, or causes a thing or third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove. Restatement (Second) of Torts §158 (1965). Therefore, to maintain the cause of action for trespass, the plaintiffs’ must be able to prove they had legal title to the disputed property.

To maintain a cause of action in Count II-Conversion, the plaintiffs’ must prove that the defendants’ trespassed onto the plaintiffs’ property and deprived them of their right to use or possess their property and chattels. In Stevenson v. Economy Bank of Ambridge, 413 Pa. 442, 451, 197 A.2d 721, 730 (1964), the Pennsylvania Supreme Court found that a conversion is the deprivation of another’s right of property in, or use or possession of, a chattel, or interference therewith, without the owner’s consent and without lawful justification. Thus, to maintain the cause of action for conversion, the plaintiffs must first prove they held lawful title to the property which they claim the defendants deprived them of.

To support a cause of action in Count Ill-Ejectment, the plaintiffs must prove they hold a right to possess the subject property that is superior to the defendants’ own right of possession. To maintain an action in ejectment, a plaintiff who does not have actual possession of a property must prove that he has the right to possess a property against a defendant. Riverwatch Condo. Owners Ass ’n v. Restoration Dev. Corp., 931 A.2d 133, 139 (Pa. Cmwlth. 2007) citing Soffer v. Beech, 487 Pa. 255, 409 A.2d 337 (1979). The plaintiff out of possession must establish a right to immediate possession of the property based on the strength of the plaintiff’s own title. The plaintiff’s prima face title is sufficient to maintain the action until the defendant can prove a better title. Doman v. Brogan, 405 Pa. Super. 254, 592 A.2d 104 (1991).

At Count IV of the complaint the plaintiffs have requested the court to issue a permanent injunction restraining the defendants and their contractees from entering the plaintiffs’ property and removing trees, limestone and other minerals. As with the previous three counts, the plaintiffs must prove they hold legal title to property from which they want the defendants permanently barred.

Defendants contend in the motion for partial summaiy judgment that the central question that must be determined is who owns legal title to the disputed tract of land. The defendants argue that they have provided ample, verifiable evidence, supported by the historical record that supports their ownership of the land. Defendants contend the record before the court undeniably demonstrates that they have proof that they hold all legal title, interest and right to the disputed land and that the plaintiffs are unable to present any authentic or credible evidence that would prove their right of title to the land.

The court finds that the pleadings relative to the original complaint and the causes of action contained therein are closed. According to the record, the matters contained in the original complaint were scheduled for pre-trial conference several times but each time the conference was continued so that discovery, in the form of expert depositions, could be completed. The defendants complied and provided their expert to be deposed: the plaintiffs provided an expert report but when their expert was to be deposed on his findings and methodology he refused to testify. In the motion for partial summary judgment defendants have provided to this court an expert report prepared by David LaPearle, a licensed professional surveyor. Plaintiffs provided the court with an expert report prepared by Ross Taylor of Ross Taylor Engineering dated August 9, 2005, which stated that plaintiffs owned the disputed land. When Ross Taylor was required to testify under oath regarding the allegation of ownership, including methodology and documents used in drafting the allegation of ownership, he refused to testify. Ross Taylor also refused to testify relative to the procedures and documentary evidence used by defendants’ expert David LaPearle in preparing the defendants’ survey.

The survey presented by plaintiffs directly contradicts the findings in the survey conducted by David LaPearle from Michael Baker Inc. David LaPearle, a licensed professional surveyor, readily testified and was cross-examined on record regarding his methodology and the accuracy of this findings. The work performed in completing the defendants’ survey was readily apparent and is reflected in the record in the extensive deposition of David LaPearle, as well as the expert’s report attached to the deposition. LaPearle testified that the survey he prepared relied upon significant historical evidence and maps in reaching its’ conclusions. The plaintiffs have provided historical documentary evidence, extensive survey evidence and expert testimony evidence proving their ownership of the disputed tract.

Plaintiffs contend that expert testimony alone is not sufficient to support a grant of summary judgment. “If the moving party has supported the motion with oral testimony only, the response may raise the defense that there is a genuine issue of material fact because the cause of action is dependent upon the credibility and demeanor of the witnesses who will testify at trial. See Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932). Plaintiffs assert there is a genuine issue of material fact as the defendants’ are relying on the testimonial evidence of David LaPearle and therefore summary judgment is not appropriate.

The court finds that the defendants’ proof of ownership of the disputed land is not based solely on the testimony of David LaPearle. The defendants’ have also provided ample historical evidence showing the demarcation of the parties property lines as well as a verifiable survey proving their ownership of the parcel. The plaintiffs have failed to present any evidence refuting the historical evidence or the survey submitted by defendants. Likewise, the plaintiffs expert refused to testify as to the integrity of the methods used by the defendants’ expert. Since plaintiff’s expert refused to submit to examination under oath, without any objection from the plaintiffs themselves, he cannot be permitted to testify at trial. After a lengthy period of extensive discovery and production of expert reports the plaintiffs clearly cannot present evidence sufficient to meet the burden necessary to maintain causes of action in trespass, conversion, ejectment and permanent injunction, on the basis of record title, while the defendants have produced overwhelming evidence of their record title to the disputed tract of land. The plaintiffs have no means by which they can prove their ownership of the disputed tract of land by way of record title. The deed description of Kline and Capots describe their lands by. reference to neighboring lands; thus, the location of the boundary by virtue of the deed requires expert testimony. Plaintiffs and additional plaintiff have not identified any such expert testimony they can produce at trial to establish their boundary by deed. As plaintiffs have failed to produce the evidence essential to establishing that the location of the disputed boundary line is as set forth in the complaint, based upon the deed description, defendants are entitled to summary judgment as a matter of law.

Defendants’ motion for partial summary judgment will be granted as to Count I-Trespass, Count II-Conversion, Count Ill-Ejectment and Count IV-Permanent Injunction of the complaint and the counts dismissed as to the extent that that the claims are based upon assertion of holding record title by deed. However, these claims are preserved to the extent that they may be proved based upon the claim of adverse possession by the Klines in proceeding on Counts V and VI which incorporate the allegations of Counts I, II, III and IV.

ORDER OF COURT

And now, this 27th day of Januaiy, 2015, after consideration of defendants’ preliminary objections to plaintiffs’ and additional plaintiff’s second amended complaint, and defendants’ motion for partial summary judgment, it is ordered, adjudged and decreed as follows:

1. Preliminary Objections I to amended complaint alternative Count V-Adverse Possession against David J. Capots and Bette J. Capots asserting lack of capacity to sue of plaintiffs Harold M. Kline and Ethel M. Kline are dismissed and overruled.

2. Preliminary Objections II to amended complaint alternative Count V-Adverse Possession against David J. Capots and Bette J. Capots asserting lack of capacity to sue of additional plaintiff, Sandra J. Johnston, are granted and a demurrer is granted as to the claim of additional plaintiff, Sandra J. Johnston, on a theory of adverse possession.

3. Preliminary Objections III to amended complaints alternative Count V-Adverse Possession against David J. Capots and Bette J. Capots asserting legal insufficiency (demurrer) as to plaintiffs Harold M. Kline and Ethel M. Kline are dismissed and overruled.

4. Preliminary Objections IV to amended complaint alternative Count V-Adverse Possession against David J. Capots and Bette J. Capots, asserting legal insufficiency (demurrer) as to additional plaintiff, Sandra J. Johnston, are granted and a demurrer is granted as to the claim for adverse possession of additional plaintiff Sandra J. Johnston relative to Alternative Count V.

5. Preliminary Objections I to amended complaint alternative Count VI-Adverse Possession against Urie Byler Asserting lack of capacity to sue of plaintiffs Harold M. Kline and Ethel M. Kline are dismissed and overruled.

6. Preliminary Objections II to amended complaint alternative Count VI-Adverse Possession against Urie Byler asserting lack of capacity to sue of additional plaintiff, Sandra J. Johnston, are granted and a demurrer is granted as to the claim of additional plaintiff Sandra J. Johnston relative to Count VI of the amended complaint on the theory of adverse possession.

7. Preliminary Objections III to amended complaint alternative Count VI-Adverse Possession against Urie Byler asserting legal insufficiency (demurrer) as to plaintiffs Harold M. Kline and Ethel M. Kline as to alternative Count VI are dismissed and overruled.

8.Preliminary Objections IV to amended complaint alternative Count VI-Adverse Possession against Urie Byler, asserting legal insufficiency (demurrer) as to additional plaintiff, Sandra J. Johnston, are granted and a demurrer is granted as to the claim of additional plaintiff Sandra J. Johnson on the theory of adverse possession as to Alternative Count VI.

9. Defendants’ motion for partial summary judgment is granted as to Counts I, II, III and IV of the original complaint as incorporated into the second amended complaint and said counts are dismissed and plaintiffs are precluded from proceeding on any claim or theory that the plaintiffs hold record title to the disputed premises by call of the deed into plaintiffs Kline. However, said counts having been incorporated into the second amended complaint on the Adverse Possession Counts V and VI on which the plaintiffs Kline may proceed, plaintiffs may seek the same relief as requested in Counts I, II, III and IV on a theory of adverse possession.

10. The within action is stayed pending a proper substitution in the record of a personal representative(s) relative to the interests of plaintiffs Kline whom the court has been advised are now deceased, and counsel for plaintiffs is directed to comply with Pa.R.C.P. 2352 and upon compliance therewith, leave is granted to file a third amended complaint substituting the representatives of plaintiffs Kline for additional plaintiff Johnston. The plaintiffs shall have thirty (30) days from the date that this order is docketed to accomplish the aforesaid compliance with Pa.R.C.P. 2352 and the filing of any amended complaint.

      . There has been no substitution on the record of any legal representative of the deceased plaintiffs. It is axiomatic that a deceased person cannot be a party to a civil action. If this action is to proceed in regard to the Klines interest there must be compliance with Pa. R.C.P. 2352. Notice of the death of both Ethel and Howard Kline appear in defendants brief filed July 22, 2014 page 4.