author: HARLACHER SIBUM, J.,

text:
    Commonwealth v. $7,848 U.S. Currency

      C.P. of Monroe County,
    No. 9416 CIVIL 2012

      Adrian Shcuka, for Commonwealth.

      Robert A. Saurman, for respondent.
    July 18, 2014
   HARLACHER SIBUM, J.,

— This matter is before the court on the Commonwealth’s petition for forfeiture and condemnation filed on November 6, 2012. The currency seized amounted to $7,848.00. Of that amount, $7,000.00 is claimed by Respondent Alexis George and $848.00 is claimed by Respondent Miguel Antonio Garayua. On November 8, 2012, this court issued a rule returnable upon respondents to show cause why the Commonwealth is not entitled to the requested relief. Respondents submitted separate answers on September 23, 2013. On November 18, 2013, the Commonwealth filed a motion for order of forfeiture, which the court denied without prejudice on November 19, 2013. Upon motion of the Commonwealth, a hearing was held on this matter on April 14, 2014. At hearing, the parties stipulated that the $848.00 claimed by Miguel Antonio Garayua was not subj ect to forfeiture and it was returned. The $7,000.00 remains at issue. We are now prepared to decide this matter.

This case arises from a traffic stop which occurred on May 9, 2012 on Interstate Route 80 in Tobyhanna Township. The affiant in this matter is Trooper Louis Rossi. Trooper Byron Dickson effectuated the stop for the stated cause of speeding. Alexis George was the driver of the vehicle with Miguel Garayua as the passenger. Respondent represented to the Trooper that he was headed to Wilkes-Barre to purchase a vehicle. George’s vehicle had an empty car trailer attached to the back. Upon running Respondent George’s license, Trooper Dickson established that it was suspended. The Trooper asked for consent to search the vehicle. Respondent George related that there was $7,000 U.S. currency in the center console of the vehicle and granted consent for the search. The money was wrapped in a paper bag with $1,000 increments separated by rubber bands. According to Respondent George, he earned this money doing oil changes as a side job in his local neighborhood in the Bronx, New York. Respondent George testified that the money went directly from his customers, was set aside in his home, and then was placed in the car in anticipation of purchasing the vehicle. Respondent also testified that his neighborhood is laden with drug activity. Troopers effectuated a K-9 sniff at the scene of the stop, which rendered an alert to the presence of a controlled substance on the currency. No drugs or drug paraphernalia was present in the vehicle or on the respondents’ persons.

The money was seized and an IONSCAN test was performed, resulting in positive presence of cocaine with casual contact levels of 805 and a cocaine high of 1057. As a frame of reference, this number is compared to the casual contact level of 425.5 for New York State levels measured from 2012. At hearing, Staff Sergeant Jenn Marsh testified as to the IONSCAN procedure, relating that the money was tested on June 26, 2012 in conditions which would eliminate or greatly reduce the possibility of contamination.

At hearing, it was also established that both respondents had criminal records for drug convictions. These convictions were roughly 20 years old and unrelated to one another.

DISCUSSION

Pursuant to 42 Pa.C.S.A. §6801, et seq., currency may be seized if the Commonwealth shows that the currency was furnished or intended to be furnished in exchange for a controlled substance or that the currency was used or intended to be used to facilitate any violation of The Controlled Substance, Drug, Device and Cosmetic Act.” See Commonwealth v. Three Hundred Ten Thousand Twenty Dollars, 894 A.2d 154 (Pa.Cmwlth. 2006). “If the Commonwealth establishes a nexus, then the burden shifts to the person opposing the forfeiture to prove that he or she owns the money; lawfully acquired the money; and did not use or possess the money for unlawful purposes.” Commonwealth v. $16,208.38 U.S. Currency Seized From Holt, 635 A.2d 233, 238 (1993). “It is well accepted that each forfeiture case is sensitive to its own particular facts.” Commonwealth v. Burke, 49 A.3d 543, 546 (Pa. Cmwlth. 2012) (internal citations omitted). “The proper inquiry requires weighing the totality of the circumstances presented without imposing artificial evidentiary requirements.” Id. That is, “artificial bright-line standards are inappropriate for [this] analysis.” Id., at 550.

Under Pennsylvania forfeiture case law, the court must first determine whether the Commonwealth has established a nexus between the currency seized and unlawful activity by a preponderance of the evidence, in this case, we find that the Commonwealth has met its burden based on the following factors: (1) the positive alert by the drug-sniffing dog that controlled substances were present on the currency; (2) the results of the IONSCAN; (3) the manner of packaging of the currency which is consistent with drug trafficking; and (4) Respondents’ prior drug conviction. As we find that these factors are sufficient to establish a nexus to illegal drug activity, the burden shifts to respondent to disprove the nexus and establish that he owns the money, that he lawfully acquired the money, and that he did not use or possess the money for unlawful purposes.

Upon consideration of whether respondent has met his burden, we remain cognizant that the courts decline to establish an “artificial bright-line standard” in determining forfeiture cases. As such, we thoughtfully considered the totality of the circumstances. First and foremost, respondent presented credible testimony which was consistent with respondent’s explanation at the time of the stop. That is, despite the drug-sniffing dog’s alert and the IONS CAN results, we find that respondent’s assertion of lawful acquisition, ownership, and use of the currency was logical and credible. Respondent told Troopers at the time of the stop and testified at the time of hearing that the money was proceeds from his lawful side-business changing oil for residents in his neighborhood in Bronx, New York, where drug activity is prevalent. We find this to be a credible and logical explanation for the lawful acquisition and ownership of the currency. Respondent further asserted that he was on his way to purchase a vehicle. We find this to be a credible and logical explanation for his lawful use of the currency. At hearing, respondent also highlighted several corroborating factors in support of his assertions which include: (1) that no drugs or drug paraphernalia were present in the vehicle; (2) that an empty trailer was attached to the back of the vehicle which was consistent with respondent’s assertion that he was on his way to purchase a vehicle with the money; and (3) that respondent was transparent in his interactions with the Troopers at the time of the stop, granting consent for the search as well as his open acknowledgement to Troopers regarding the presence of the money. Furthermore, we find that respondents’ unrelated drug convictions from 20 years ago are not indicative of an active drug lifestyle and, as our Supreme Court has previously noted, respondent’s bundling of the money is equally consistent with persons attempting to simplify and promote precision in the management of their lawfully obtained funds. See Commonwealth v. Marshall, 698 A.2d 576, 579 (Pa. 1997). Thus, while we find the Commonwealth met its burden by presenting evidence associated with unlawful behavior, we also find that respondent met his burden with evidence that is equally consistent with lawful behavior, thereby disproving an unlawful nexus.

As such, the following order shall be entered.

ORDER

And now, this 18th day of July, 2014, after consideration of the Commonwealth’s petition for forfeiture, and after hearing on this matter, the court finds that the respondent has met his burden under the forfeiture act in proving that the currency seized was lawfully acquired money and that respondent did not use or possess the money for unlawful purposes.

As such, it is ordered that Commonwealth’s petition is denied.


source: Caselaw Access Project

author: HERTZBERG, J,

license: Public Domain

text:
    GAI Consultants, Inc. v. Homestead Borough

      C.P. of Allegheny County,
    Nos. GD 12-9262 and 12-1218; 892 CD 2014

      Noah P. Fardo, Donald C. Fetzko, Stanley B. Lederman and Andrew F Szefi, for plaintiff.

      Joseph G. Heminger, William G. Merchant, Gregory Evashavik, and Bernard M. Schneider, for defendant.
    July 23, 2014—
   HERTZBERG, J,

I. Introduction

HomesteadBoroughhasappealedtotheCommonwealth Court of Pennsylvania from my orders that direct the Redevelopment Authority of Allegheny County to pay reimbursements to other defendants from property taxes collected by the Waterfont Tax

Increment Financing District. The primary basis for the appeal is Homestead Borough’s contention that the statute of limitations bars the reimbursement claims. This opinion provides the reasons the claims are not barred by the statute of limitations and are otherwise valid. See Pa.R.A.P. No. 1925(a).

II. Factual Background

The Redevelopment Authority of Allegheny County (“RAAC”) led an effort to redevelop a 266 acre “brownfield” site along the Monongahela River that once served as the steel mill known as “Homestead Works.” The RAAC proposed the use of “tax increment financing” to fund construction of roads and utilities in the new development. In September of 1998 Homestead, Munhall and West Homestead Boroughs, Allegheny County, Steel Valley School District, Waterfront Partners, LLC and RAAC signed the Waterfront Tax Increment Financing District Agreement. They agreed that the increase in property taxes from the new development would first pay bonds issued by the RAAC for the construction costs of the roads and utilities, with the Boroughs, the School District and County receiving the remaining balance. “The Waterfront” development of retail, office and residential buildings happened quickly, and annual property tax revenues in the amount of $564,193 in 1998 increased to $3,406,147 in 2001, to $6,982,725 in 2004 and to $8,044,707 in 2012. See trial exhibit RAAC no. 5.

The dispute in the subject proceedings arises from this provision in the September, 1998 Waterfront Tax Increment Financing (“TIF”) District Agreement:

Section 13. Tax appeals. If at any time the Bank receives moneys which are required to be refunded to the taxpayer of the Pledged Parcels as the result of an assessment appeal or otherwise, the Authority will cause such moneys to be paid to or at the direction of the appropriate Taxing Body. Refunds shall be made in the reverse order of priority as that set forth in Section 6.

Trial exhibit Steel Valley School District no. 1, p. 11.

III. Procedural Background

In January of 2012 Steel Valley School District filed a complaint for declaratory judgment motivated by RAAC’s 2011 refusal to pay a refund to GAI Consultants, Inc. from the TIF Fund. See docket no. GD 12-001218. Steel Valley School District requested that this court declare RAAC contractually obligated to pay tax assessment appeal refunds from the TIF Fund. All the other parties to the September, 1998 TIF Agreement were named as defendants. In May of 2012 GAI Consultants sued Homestead Borough for failing to pay the tax assessment appeal refund, even though both Steel Valley School District and Allegheny County had paid refunds to GAI. See docket no. GD 12-009262. Homestead Borough joined RAAC as an additional defendant alleging RAAC breached section 13 of the TIF Agreement by not paying the refund to GAI Consultants, Inc. from the TIF Fund. I consolidated the proceedings filed by Steel Valley School District and GAI Consultants, Inc. into one proceeding and presided over the non-jury trial of the dispute on February, 18, 2014.

I signed orders: on February 19,2014 declaring RAAC contractually obligated to pay tax assessment appeal refunds from the TIF Fund; on February 25, 2014 ruling that the statute of limitations is not a defense to Munhall Borough’s tax assessment appeal refund claims dating from 2001; and, on March 11, 2014 ruling that the statute of limitations is not a defense to Steel Valley School District’s tax assessment appeal refund claims dating from 2002 or to Allegheny County’s tax assessment appeal refund claims dating from 2001.

Homestead Borough filed a motion for post trial relief in which it contended that the statute of limitations prevents Munhall Borough, Allegheny County and Steel Valley School District from making claims to refunds from assessment appeals finalized before 2010. I denied Homestead Borough’s motion for post trial relief, and Homestead Borough filed a notice of appeal to Commonwealth Court and a concise statement of errors complained of on appeal.

IV. Statute of Limitations

Clearly Munhall Borough, Allegheny County and Steel Valley School District’s reimbursement claims are premised on the September, 1998 TIF Agreement. Pennsylvania has a statute of limitations that requires lawsuits upon a contract to be commenced within four years. 42 Pa.C.S.§5525(a). Homestead contends that the statute of limitations begins to run at the time of the breach of contract. See In re Estate of Dixon, 426 Pa. 561, 233 A.2d 242 (1967). Homestead further contends the breach by RAAC occurred when the taxing bodies were ordered to pay a refund, but because Munhall Borough, Allegheny County and Steel Valley School District did not file claims against RAAC until 2014, the statute of limitations expired as to the reimbursement claims ordered before 2010.

I rejected Homestead Borough’s argument because I found the TIF Agreement is a “continuing” contract, which means the statute of limitations does not begin to run until termination of the contractual relationship. See Thorpe v. Schoenbrun, 202 Pa. Super. 375, 195 A.2d 870 (1963). All parties acknowledge that, with RAAC’s bond debt being satisfied no earlier than 2018, the TIF Agreement has not terminated and in fact will remain in effect an additional four or five years. Non-jury trial transcript 2/18/2014 (“T.” hereafter), pp. 39 and 73; TIF Agreement, exhibit C. Hence, the contractual relationship has not terminated and the statute of limitation has not begun to run.

“The test of continuity, so as to take the cause out of the operation of the statute of limitations, is to be determined by the answer to the question whether the services were performed under one continuous contract, whether express or implied, with no definite time fixed for payment, or were rendered under several separate contracts.” Thorpe v. Schoenbrun, 202 Pa. Super 375, 378, 195 A.2d 870, 872. A review of the facts and the court’s reasoning in Thorpe v. Schoenbrun helps illustrate this “test of continuity.” With a six year statute of limitations then in effect, ophthalmologic doctor Thorpe sued his patient in July of 1960 for bills owed for services rendered between July of 1952 and July of 1954, including cataract surgery in April of 1953. The court referenced evidence that all services were interdependent to reason that it was a contract that continued until the doctor-patient relationship terminated in July of 1954, with the services rendered more than six years before suit was filed therefore not subject to the statute of limitations.

Under the Thorpe v. Schoenbrun test, in these proceedings the TIF Agreement expresses in writing that services by RAAC are “performed under one continuous contract....” Furthermore, under Thorpe v. Schoenbrun, the TIF Agreement has “no definite time fixed for payment...” Section 13 of the TIF Agreement instead references the indefinite time for payment to be whenever “moneys are required to be refunded to the taxpayer of the Pledged Parcels as the result of an assessment appeal....” In addition, there is no due date or deadline for when RAAC “will cause such moneys to be paid to or at the direction of the appropriate Taxing Body.” Thus, the TIF Agreement meets the test for a continuing contract, and since the contractual relationship will not terminate until four or five years in the future, the reimbursement claims of Munhall Borough, Allegheny County and Steel Valley School District dating from 2001 are not barred by the four year statute of limitations.

V. Waiver

Homestead Borough also argues that Munhall Borough, Allegheny County and Steel Valley School District waived their claims for reimbursement of refund payments they made before 2010 “due to failure to aver the claims...in their pleadings and pretrial statements.” Concise statement of errors complained of on appeal, ¶ no. 2 (g). Because Munhall Borough filed new matter on July 18, 2013 that specified its reimbursement request relative to the 1999, 2005 and 2009 refunds, there is no basis for this argument as to Munhall Borough. In fact, eight days before trial Homestead Borough served a motion in limine arguing Munhall Borough’s reimbursement claims were barred by the statute of limitations. With respect to Allegheny County and Steel Valley School District, it may be argued that their pleadings are too vague for Homestead Borough to have been on notice of the claims for reimbursement relating to refunds made before 2010. However, when Allegheny County and Steel Valley School District’s counsel asserted these claims at trial, Homestead Borough did not object or. mention that they were not averred in the pleadings and pretrial statements. T., pp 53-61 and 146-148. The ironic result is that Homestead Borough’s argument of waiver is therefore waived. See Pa. R.C.P. No. 227.1(b). In any event, Homestead Borough fails to demonstrate how the alleged failure to make the claims by pleading and pretrial statement prejudiced it. Homestead Borough adequately argued the same statute of limitations defense that applied to the reimbursement claims of not only Munhall Borough, but also to those of Allegheny County and Steel Valley School District. The statute of limitations is the only defense heretofore raised by Homestead Borough, and it would be an unnecessary delay and expense to have a new trial and/or another lawsuit with Homestead Borough making the same argument. See Pa. R.C.P. No. 126.

      . See 53 RS. §6930.2(b).

      . The September, 1998 agreement also provides that all real estate taxes collected from the 266 acre former Homestead Works tract or “Pledged Parcels” would be deposited into the “Bank” designated by “the Authority” (RAAC is referred to in the agreement as “the Authority”).

      . Section 5 of the September, 1998 agreement defines the “TIF Fund” to mean all property tax revenue from the 266 acre former Homestead Works tract.

      . Initially GAI filed a complaint for mandamus naming Homestead Borough’s manager the defendant, but after preliminary objections were filed, GAI filed an amended complaint for breach of contract against Homestead Borough.

      . Other cases that illustrate the effect of the continuing contract rule on the statute of limitations include Tenny v. Dauphin Deposit Bank & Trust Co., 302 Pa. Super. 342, 448 A.2d 1073 (1982) (reversing summary judgment because question of fact existed on whether the statute of limitations began running when the bank breached its agreement to provide sufficient loan funds or instead at the end of the bank-customer relationship) and Miller v. Miller, 2009 Pa. Super 197, 983 A.2d 736 (statute of limitations on husband’s breach of agreement to pay mortgage, taxes and insurance on marital residence did not begin when each payment was missed, therefore wife’s reimbursement claims for payments due more than four years before she petitioned for enforcement were valid).

      . Homestead Borough also argues I made an error by denying its motion to strike Allegheny County’s answer to the complaint. Homestead Borough asked me to strike this answer because it was not filed of record until after the trial. However, it was served on Homestead Borough two weeks before the trial. Hence, Homestead Borough was not prejudiced. See Pa.R.C.P. No. 126.


author: COX, J.,

text:
    Houk v. Mitchell

      C.P. of Lawrence County,
    No. 10023 of 2013

      Richard E. Flannery, for plaintiff.

      John J Bongivengo, for defendants.
    July 29, 2014
   COX, J.,

— Before the court for disposition is the motion for summary judgment filed on behalf of the defendant Marc Mitchell t/d/b/a Keystone Arms For America, which argues the plaintiff failed to prove damages in relation to the alleged defamatory statement made by the defendant and there is a lack of consideration concerning the breach of warranty claims as the plaintiff failed to render payment for the remaining balance owed on the firearm in question. The defendant further contends that the plaintiff is precluded from filing a claim for replevin if there was a valid contract reached between the parties as the title for the 6-inch Colt python pistol was properly transferred to the defendant and he is legally entitled to possession of the same.

On November 21,2012, the defendant listed for auction a Colt Python 4-inch Nickel 357 Magnum revolver and it was advertised as a “wonderful collector piece that is just in pristine condition”. The plaintiff won the bid on that firearm by offering $2,695.00 and as payment, the parties negotiated that the plaintiff would trade a 6-inch Colt Python 357 Magnum revolver and pay $1,372.70 in cash. On November 29, 2012, the parties met at Lone Wolf Gun Store and the defendant transferred the 4-inch Colt Python revolver to the plaintiff, who also transferred his 6-inch Colt pistol to the defendant. The cylinder on the 4-inch Colt Python revolver purchased by the plaintiff was functioning properly at that time. The defendant instructed the plaintiff on how to properly open and close the cylinder, which the plaintiff did two or three times. Several hours later, the plaintiff applied oil to the cylinder of the 4-inch Colt Python revolver and the cylinder would not close. The plaintiff contacted the defendant to discuss the problem and attempted to arrange a meeting between the parties on November 30, 2012; however, the defendant did not attend that meeting. The plaintiff decided he wanted to rescind the transaction and placed a stop payment on the check to pay the remaining balance owed to the defendant.

In response, the defendant contacted Bureau of Alcohol, Tobacco, Firearms And Explosives (hereinafter “ATF”) Agent Haggerty and informed him that the plaintiff issued the defendant a check and subsequently placed a stop payment on it. Agent Haggerty then contacted the plaintiff on December 5, 2012, and stated that the defendant reported the firearm as stolen. The plaintiff explained the situation to Agent Haggerty, who decided that the matter was not the proper subject of an ATF investigation. The plaintiff also stated that the defendant intended to call the Pennsylvania State Police concerning the firearm, but he was never contacted by any other law enforcement agency after speaking with Agent Haggerty.

The plaintiff filed suit on January 9, 2013, averring claims for breach of express warranty, breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, replevin and slander. On March 25, 2013, the defendant filed an answer and new matter averring failure of consideration concerning the claims for breach of warranty. On April 1, 2014, the defendant filed the current motion for summary judgment contending that the plaintiff failed to prove damages in relation to the alleged defamatory statement made by the defendant and there is a lack of consideration concerning the breach of warranty claims as the plaintiff failed to render payment for the remaining balance owed on the firearm in question. The defendant contends that the plaintiff is precluded from filing a claim for replevin if there was a valid contract reached between the parties as the title for the 6-inch Colt python pistol was properly transferred to the defendant and he is legally entitled to possession of the same.

The purpose of the summary judgment rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after the relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). The mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for a trial. The summary judgment rule exists to dispense with a trial of a case or, in some matters, issues in a case, where a party lacks the beginnings of evidence to establish or contest a material issue. Ertel v. Patriot-News Company, 544 Pa. 93, 674 A.2d 1038 (1996), reargument denied, (1996), certiorari denied, 519 U.S. 1008 (1996).

Any party may move for summary judgment in whole or in part as a matter of law whenever there is no genuine issue of 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 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. However, summary judgment is only appropriate when discovery relevant to the motion has been completed, id. 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 v. Erie Ceramic Arts Co., 764 A.2d 59, 61 (Pa. Super. 2000) (citing Rush v. Philadelphia Newspaper, Inc., 732 A.2d 648, 650-651 (Pa. Super. 1999)).

The moving party bears the burden of proving the nonexistence of any genuine issue of material fact. Kafando, supra. A material fact, for summary judgment purposes, is one that directly affects the outcome of the case. Gerrow v. Shincor Silicones, Inc., 756 A.2d 697 (Pa. Super. 2000); Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000). The non-moving party must adduce sufficient evidence on issues essential to his case on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no' genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ertel, supra. The non-moving party must demonstrate that there is a genuine issue for trial and may not rest on averments in its pleadings. DeSantis v. Frick Company, 745 A.2d 624 (Pa. Super. 1999); Merriweather v. Philadelphia Newspaper, Inc., 453 Pa. Super. 464, 469-472, 684 A.2d 137, 140 (1996).

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. 20001); 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).

A plaintiff seeking to recover for defamation must prove the following:

(1) The defamatory character of the communication.
(2) Its publication by the defendant.
(3) Its application to the plaintiff.
(4) The understanding by the recipient of its defamatory meaning.
(5)The understanding by the recipient of it as intended to be applied to the plaintiff.
(6) Special harm resulting to the plaintiff from its publication.
(7) Abuse of a conditionally privileged occasion. 42 Pa.C.S.A. § 8343(a).

In order for a statement to be published, it must be communicated to a third party. Davis v. Resources for Human Development, Inc., 770 A.2d 353, 358 (Pa. Super. 2001)(citing Elia v. Erie ins. Exchange, 430 Pa. Super. 382, 634 A.2d 657, 660 (1993)). A plaintiff must also prove special damages, unless that plaintiff can establish a claim for slander per se, which nullifies the requirement to prove special damages. Walker v. Grand Cent. Sanitation, Inc., 430 Pa. Super. 236, 242, 634 A.2d 237, 246-247 (1993). Slander per se includes publications that impute “(a) a criminal offense...(b) a loathsome disease...(c) matter incompatible with his business trade, profession, or office...or (d) serious sexual misconduct.” Restatement (Second) Torts § 570, See also Brinich v. Jencka, 757 A.2d 388 at 397 (Pa. Super. 2000). It must be emphasized that a plaintiff asserting a claim for slander per se must prove general damages or actual harm caused by the publication. Walker, 430 Pa. Super, at 244, 634 A.2d at 250. The plaintiff in a slander per se case must establish general damages or, in other words, the plaintiff must establish proof of actual harm caused by the publication. Haltzman v. Brill, 29 Pa.D.&C 4th 356, 363-364 (Pa. Com. Pl. 1995) (citing Walker, 430 Pa. Super, at 244, 634 A.2d at 249-250). Hence, the plaintiff must prove that someone thought less of him or her because of the publication and a mere emotional response to the publication by the plaintiff is insufficient to establish general damages. Id., 29 Pa.D.&C 4th at 364. The Haltzman Court stated, “Pennsylvania no longer recognizes presumed damages in defamation cases, but instead requires a showing of ‘general damages,’ that is, ‘proved, actual harm caused to the reputation of the person defamed.’” Id., 29 Pa.D.&C 4th at 365 (quoting Restatement (Second) of Torts § 621). “Actual harm includes “impairment of reputation and standing in the community, ...personal humiliation, and mental anguish and suffering.” Brinich, 757 A.2d at 397 (quoting Restatement (Second) of Torts § 621 comment b; Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974)).

In the case sub judice, the evidence demonstrates that the defendant contacted Agent Haggerty to determine if he could pursue criminal charges against the plaintiff as he placed a stop payment on a check used to pay the remaining balance owed on the 4-inch Colt Python pistol. Under the prevailing law concerning defamation, the defendant clearly published that statement to a third party in the form of Agent Haggerty by stating that the plaintiff placed a stop payment on the check and inquiring into whether he was guilty of theft for doing so. This statement may be defamatory in that it imputes that the plaintiff may have committed a crime as the defendant was attempting to pursue criminal charges for theft based upon the plaintiff’s actions. This caused Agent Haggerty to contact the plaintiff in an investigation into the matter, which ultimately led to his decision that he would not pursue the matter any further. It is also obvious that the meaning of the defendant’s statements were understood and pursued by Agent Haggerty as he contacted the plaintiff to further investigate the theft claims by the defendant.

However, the plaintiff has not averred any manner of special damages as he claims that the statement by the defendant is slander per se. The court has also determined this may be slander per se as the defendant clearly imputed that the plaintiff committed the crime of theft by placing a stop payment on the check he issued to pay the remaining balance for the firearm. Thus, the plaintiff was merely required to prove general damages or “actual harm”, which means that his reputation in the community was harmed, he suffered personal humiliation or mental anguish. The plaintiff testified in his deposition that he did not suffer any monetary damage as a result of the publication from the defendant to Agent Haggerty. He also stated that his character in the community has not been affected by this incident. However, he was upset and felt like it was an insult as he does not conduct business in that manner. The plaintiff’s testimony does not indicate that he was damaged in any manner as he did not suffer any form of humiliation from speaking with Agent Haggerty, who quickly decided that he was not going to pursue the investigation any further. In addition, the statement was never communicated to any other member of the plaintiff’s community, so he was not subjected to diminution of his reputation in the community. Although, the plaintiff was upset by the defendant’s statements to Agent Haggerty, it does not appear that the plaintiff’s discontent rose to the level of mental anguish. The plaintiff has failed to establish that he suffered general damages as he is required to prove a claim for slander per se. Therefore, the plaintiff’s claim for slander in count V is dismissed.

Next, the defendant contends that there is failure of consideration concerning the breach of warranty claims as the plaintiff failed to render payment for the remaining balance owed on the firearm in question.

“A cause of action for breach of contract must be established by pleading (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages.” CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. 1999) (citing Gen. State Auth. v. Coleman Cable & Wire Co., 27 Pa. Cmwlth. 385, 365 A.2d 1347, 1349 (1976)). A plaintiff must prove the existence of a contract by demonstrating there was an offer, acceptance and consideration. Mundie v. Christ United Church of Christ, 987 A.2d 794, 801 (Pa. Super. 2009) (citing Hatbob v. Brown, 394 Pa. Super. 234, 575 A.2d 607, 613 (1990)). “Failure of consideration occurs where the consideration bargained for does not pass, either in whole or in part, to the promisor.” Necho Coal Co. v. Denise Coal Co., 387 Pa. 567, 569, 128 A.2d 771, 772 (1957). Aparty asserting the affirmative defense of failure of consideration bears the burden of demonstrating that the consideration contemplated was never received. In re Estate of Rosser, 821 A.2d 615 (Pa. Super. 2003) (citing In re Estate of Beeruk, 429 Pa. 415, 417 n. 1, 241 A.2d 755 n. 1 (1968); Dahar v. Grzandziel, 410 Pa. Super. 85, 599 A.2d 217, 221 (1991)). If there are no mutual promises, a contract is void for want of consideration. Keim v. Brumbaugh, 29 Pa. Super. 557 (Pa. Super. 1905) (citing Ellis v. Guggenheim, 20 Pa. 287 (1853)). “There is, however, a distinction between want and failure of consideration; want of consideration embraces transactions or instances where none was intended to pass, while failure of consideration implies that a valuable consideration, moving from obligee to obligor, was contemplated.” In re Killeen’s Estate, 310 Pa. 182, 187, 165 A. 34, 35 (1932) (citing Meek v. Frantz, 171 Pa. 632, 33 A. 413 (1895)).

In the current case, it is apparent that the parties reached a contract as valid consideration was contemplated. The defendant auctioned his 4-inch Colt Python pistol that he described as a “wonderful collector piece that is just in pristine condition”, which was bid upon by the plaintiff. The parties agreed that the plaintiff would trade his 6-inch Colt Python pistol and $1,372.70 for the 4-inch Colt Python pistol. The parties met at Lone Wolf Gun Store to transfer the firearms. At that time, the defendant instructed the plaintiff on how to properly open and close the cylinder on the 4-inch Colt Python. Once the plaintiff returned to his residence, he attempted to lubricate the firearm by opening the cylinder and, subsequently, he was unable to close the cylinder. He attempted, to organize a meeting with the defendant concerning the alleged defect with the firearm, but the defendant would not meet with him. In response, the plaintiff placed a stop payment on the check utilized to pay the remaining $1,372.70 balance owed to the defendant. The plaintiff now seeks to recover on claims for breach of express warranty, breach of implied warranty of merchantability and breach of implied warranty of fitness for a particular purpose. The defendant claims that the plaintiff is prohibited from asserting these claims as a valid contract did not exist due to failure of consideration.

It appears as though the defendant is attempting to argue that the contract is void due to failure of consideration. However, the prevailing case law in this area indicates that contract is void if there is a meritorious claim for want of consideration, which is a transaction where there was no adequate consideration negotiated to exchange hands. In the current matter, it is obvious that valid consideration was contemplated by the parties and they agreed that consideration would change hands in performance of the contract. Hence, a valid contract was formed as there was an offer, acceptance and consideration. Failure of consideration does not render the contract in question void and the plaintiff still has access to his claims for the defendant’s alleged breach of warranties. Moreover, there remains questions of fact as to whether the defendant breached the warranties and whether the plaintiff was permitted to withhold payment pursuant to the uniformed commercial code concerning the allegedly defective condition of the 4-inch Colt Python firearm. Therefore, the defendant’s motion for summary judgment regarding Counts I-III is denied.

The defendant’s final argument is that the plaintiff is precluded from filing a claim for replevin if there was a valid contract reached between the parties as the title to the 6-inch Colt Python pistol was properly transferred to the defendant and he is legally entitled to possession of the same.

The purpose for an action in replevin is to regain possession of goods and to recover damages for their detention, which is the result of an illegal act by the defendant. International Electronics Co. v. N.S.T. Metal Products Co., 370 Pa. 213, 217, 88 A.2d 40,42 (1952). “In order to maintain replevin, the plaintiff must have a general or special property right in the thing taken or detained.” Id., 370 Pa. at 217, 88 A.2d at 42-43. The plaintiff must demonstrate that he has title and the right to immediate possession of the property. Id., 370 Pa. at 218, 88 A.2d at 43. “The action of replevin is founded upon the wrongful taking and detention of property and seeks to recover property in the possession of another.” Valley Gypsum Co., Inc. v. Pennsylvania State Police, 135 Pa. Cmwlth. 548, 553, 581 A.2d 707, 710 (1990). The value of the property may only be recovered when delivery of the property cannot be obtained. Id. “The primary relief sought is the return of the property itself, the damages being merely incidental.” Id.

As stated previously, a valid contract was reached, between the parties as there was an offer, acceptance and adequate consideration. In furtherance of that contract, the parties agreed to trade firearms and the plaintiff was required to pay $1,372.70. The parties went to Lone Wolf Gun Store and transferred the firearms. The plaintiff also tendered a check for $ 1,372.70. When the plaintiff returned home and attempted to lubricate the cylinder on the 4-inch Colt Python, the cylinder would not close. He contracted the defendant and tried to organize a meeting to discuss the issue. At that time, the defendant refused to meet with him. In response, the plaintiff placed a stop payment on the check. The plaintiff is now asserting a claim for replevin attempting to regain possession of the 6-inch Colt pistol he transferred to the defendant. However, this is not a proper case for an action in replevin as the defendant has lawful possession of the 6-inch Colt pistol because it was transferred in performance of a valid contract and it was properly registered in his name. There is no indication that the defendant is wrongfully possessing that firearm and it has not been determined whether the defendant actually breached the warranties as claimed by the plaintiff. Unless it is determined that the defendant breached the underlying contract, he is in lawful possession of the 6-inch Colt pistol. Moreover, the plaintiff has the ability to recover monetary damages to sufficiently remedy his breach of warranty claims and an action in replevin is merely utilized to determine title and regain property. Thus, the defendant’s motion for summary judgment concerning court IV of the complaint is granted and the plaintiffs claim for replevin is dismissed.

For the reasons set forth in this opinion, the defendant’s motion for summary judgment is granted in part and denied in part. The defendant’s motion for summary judgment is granted concerning counts IV and V of the complaint and those claims are dismissed. Conversely, the defendant’s motion for summary judgment is denied regarding counts I through III of the complaint.

ORDER OF COURT

Now this 29th day of July, 2014, this case being before the court on June 30,2014, for oral argument on the motion for summary judgment filed by the defendant, with both parties appearing through counsel, the plaintiff Donald Houk, represented through counsel, Richard E. Flannery, Esquire and the defendant Marc Mitchell t/d/b/a Keystone Arms For America, represented through counsel, John J. Bongivengo, Esquire and after a consideration of the arguments and briefs presented and submitted by counsel and a complete and thorough review of the applicable record, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

1. In accordance with the attached opinion, the motion for summary judgment is hereby granted in part and denied in part.

2. The motion for summary judgment regarding count I — breach of express warranty, count II — breach of implied warranty of merchantability and count III — breach of implied warranty of fitness for a particular purpose is hereby denied.

3. The motion for summary judgment regarding count IV — replevin and count V — slander is hereby granted.

4. Count IV — replevin and count V — slander of the complaint are hereby stricken from the complaint and dismissed with prejudice.

5. The prothonotary is directed to serve a copy of this order of court and accompanying opinion upon counsel of record, Richard E. Flannery, Esquire and John J. Bongivengo, Esquire.


text:
    Lehigh Gas Corp. v. Stroud Township Zoning Hearing Board

      C.P. of Monroe County,
    No. 7997 CV 2013

      Andrew Schantz, for appellant.

      Richard E. Deetz, for appellee.

      July 31, 2014
   HARLACHER SIBUM, J.,

This matter is before the court on Lehigh Gas Corporation’s (hereinafter, “appellant”) appeal from the denial of a variance request that was made on June 7,2013. Appellant owns a travel stop located at 3577 Pennsylvania Route 611 in Bartonsville, Pennsylvania which includes a car wash, convenience store, and a fuel station. A free standing sign is located at the northernmost point of ingress/egress to and from the plaza. This sign is used to identify the services offered within the property as well as the fuel brand and pricing. In February of 2013, appellant refaced a sign on their property into a Light Emitting Diode (L.E.D.) sign. In May of 2013, a Stroud Township Zoning Officer verbally informed an employee of the appellant that the refaced sign would require a variance. Appellant filed an application to the Stroud Township Zoning Hearing Board (hereinafter, “appellee”) seeking “Relief from Sec. 9.601(c) Variance to display an electronically-activated changeable sign.” [Official record, ZHB #1,7/10/13]. Attached to the application was a type-written statement with four paragraphs which listed the reasons for seeking a variance, including convenience and safety factors. Thereafter, the board solicitor drafted a public notice that appellant filed the application and the same was recorded with the Pocono Record. In the identical documents, there was no mention of a substantive challenge to Section 9.601(c). [See official record, ZHB #2, #3, 7/10/13].

On July 10, 2013, appellee conducted a hearing in the Stroud Township Municipal Building to consider appellant’s request. The following facts were developed at the hearing: On January 20, 2003, appellant and their affiliate, Bartonsville Travel Plaza, Inc., purchased the property. This property is 5.3 acres and zoned C-2. Located within the property is an Exxon fuel station. The sign at issue was erected in 2003. The sign is 85 square feet in size, measuring approximately six feet and two inches (6’2) by thirteen feet and eight inches (13’8). As it stands today, the sign is in the same location, of the same dimensions, and displaying the same information as it did in 2003. However, in February of 2013 appellant refaced the sign thereby changing the portion of the sign allotted to displaying fuel pricing from a backlit panel display with plastic numerals on the L.E.D. lighted display. The portion containing the L.E.D. display has dimensions of six (6 ft.) feet in height and five (5 ft.) feet in width. At the hearing, appellant’s employee, Lisa Frantz, provided testimony regarding the L.E.D. display. Ms. Frantz testified that once per day, an employee of the gas station changes the gas prices on a console in the store by hand to control the pricing on the sign. Historically, an employee was required to manually change the numbers with a suction cup and stick on the corner where cars and trucks are entering and exiting the lot. Though Ms. Frantz was not qualified as an expert, she testified that the different method of changing the sign greatly increased the safety and convenience of changing gas prices. Furthermore, the visibility of the sign increased roadway safety. Additionally, Ms. Frantz testified that non-L.E.D. signs are becoming obsolete in the gas station industry.

Following the hearing, appellee denied appellant’s variance request. In doing so, appellee analyzed the following changes in the zoning laws. On August 29,2006, Stroud Township Board of Supervisors adopted ordinance no. 8-2006, which amended the Stroud Township Zoning Ordinance No. 5-1998 by replacing Article IX “signs and street graphics.” On March 20, 2012, prior to appellant’s conversion to the L.E.D. sign, the Township Board of Supervisors enacted Ordinance No. 3-2012 which also amended and supplemented sections of Article IX “signs and street graphics.” Appellee examined the pertinent provision in question, Section 9,601 prohibited signs and street graphicswhich includes,

(a) Pole signs greater than four (4 ft.) feet in height, except for accessibility signs required by applicable construction codes adopted by the township.
(b) Ground and Wall signs which display a product, or a replica of a product, unless a product is displayed as a graphic.
(c) Electronically-activated changeable signs.
(d) Manually-activated changeable signs, except for Bulletin Board and ground signs for the following non-residential uses: gasoline service stations, movie theatres, and drive-through menu signs

§8 of Ordinance No. 3-2012. Based on Ms. Frantz’s testimony, appellee found that the sign was an electronically-activated changeable sign and, therefore, impermissible under Section 9.601. Furthermore, appellee found that the sign was not a non-conforming use subject to the natural expansion doctrine.

On September 13, 2013, appellant filed its notice of zoning appeal to this court. On September 19, 2013, Stroud Township Board of Supervisors filed its notice of intervention to join the appellee. The issues on appeal may be summarized as follows: (1) whether the ordinance itself is invalid as its provisions lack a substantial relationship to its stated purpose and (2) whether appellee made a mistake of law by not concluding the sign is not a “nonconforming use,” thereby making the natural expansion doctrine inapplicable. Oral argument on this matter was held on March 3, 2014. After due consideration, we are now prepared to decide this matter.

DISCUSSION

“In reviewing the decision of a zoning hearing board where the trial court has not taken any additional evidence, as occurred here, our review...is limited to determining whether the board abused its discretion or committed legal error.” Smalley v. Zoning Hearing Bd. of Middletown Tp., 834 A.2d 535, 538 (Pa. 2003). It is well settled that a zoning board’s interpretation of its own zoning ordinance is entitled to great weight and deference from a reviewing court.” Lancaster Two v. Zoning Hearing Bd. of Lancaster Twp., 6 A.3d 1032, 1034 (Pa. Cmwlth. 2010). “When interpreting zoning ordinances, [the court] relies on the common usage of words and phrases and construes language in a sensible manner”. Steeley v. Richland Twp., 875 A.2d 409, 414 (Pa.Cmwlth, 2005). “An abuse of discretion will be found only where the zoning board’s findings are not supported by substantial evidence.” Smalley, 834 A.2d at 538.

As a preliminary matter, we find that appellant has waived a substantive challenge to the validity of the Ordinance No. 3-2012. Pursuant to the Pennsylvania Municipalities Planning Code, public notice must be given prior to zoning board hearings. See 53 P.S. § 10908. “If an applicant wishes to raise a validity challenge at any time during a zoning hearing board proceeding, even if only as an alternative theory, it must make this known in a public notice prior to the meeting in accordance with [53 P.S. § 10916.1]. Crown Communications v. Zoning Hearing Board of the Borough of Glenfield, 679 A.2d 271, 274 (Pa. Cmwlth. 1996) aff’d, 705 A.2d 427 (1997).

In the zoning board’s hearing of the issue, appellant briefly raised the vagueness of the ordinance in oral argument. [See N.T., 07/10/13, p. 40.] However, this is insufficient to preserve appellant’s claim as the rules require public notice prior to the hearing. After reviewing appellant’s application to the zoning hearing board, dated June 07,2013, appellant’s type-written attachment thereto, and the public notices disseminated prior to the hearing, we conclude that appellant has not complied with the requirements of 53 P.S. § 10916.1. The application merely states that appellant seeks “relief from Sec. 9.601 (c).” [Official record, ZHB #1,7/10/13.] Furthermore, the reasons stated in the attachment do not raise the substantive validity of the statute. As such, appellant has not complied with the statutory notice requirements, the issue has been waived, and we do not have the jurisdiction to address it further.

Appellant further argues that appellee erred in finding that the sign was not the continuation of an existing nonconforming use. Under the natural expansion doctrine, a non-conforming use “may be increased in extent by natural expansion and growth of trade.” Limley v. Zoning Hearing Board of Port Vue Borough, 625 A.2d 54 (Pa. 1993). However, the protections of the natural expansion doctrine are only applicable to non-conforming uses, not nonconforming structures. See Nettleton v. Zoning Board of Adjustment of the City of Pittsburgh, 574 Pa. 45 (Pa. 2003).

Appellee argues that the sign is not a use but a structure and, as such, the natural expansion doctrine does not apply. The Pennsylvania Municipal Planning Code provides in relevant part that a non-conforming structure is,

a structure or part of a structure manifestly not designed to comply-with the applicable use or extent of use provisions in a zoning ordinance or amendment heretofore or hereafter enacted, where such structure lawfully existed prior to the enactment of such ordinance or amendment or prior to the application of such ordinance or amendment to its location by reason of annexation. Such nonconforming structures include, but are not limited to, nonconforming signs.

53 P.S. § 10107. In its assertion that the sign is a nonconforming use, however, appellant relies on Ordinance No. 8-2006 which provides the following,

The purpose and intent of [Article IX, entitled Signs and Street Graphics] is to create and maintain an attractive and harmonious community. Signs constitute a separate and distinct land use and affect the use of adjacent streets, sidewalks, and property. This article establishes reasonable and impartial regulations for all signs and street graphics in order to protect the general public health, safety, convenience, and welfare. It is further the purpose of this article to reduce traffic hazards caused by distracting and confusing signs and street graphics; to ensure the effectiveness of public traffic signs and signals; to protect property values; to preserve the beauty and unique character of Stroud Township; to further economic development; to enable the fair and consistent enforcement of the sign regulations throughout Stroud Township; to require Stroud Township to complete and maintain a comprehensive, Township-wide, sign inventory; to require registration and photograph of all signs, and to require the repair, and/or removal of substandard signs and street graphics, outdated sign messages, and nonconforming signs and street graphics.

Ordinance No. 8-2006, Article IX, Signs and Street Graphics, Sec. 9.110 “Purpose” (emphasis added). However, appellee cites Section 9.1550 of Article IX which specifically regulates non-conforming signs and street graphics and which provides that, “non-conforming signage may be replaced in its entirety provided that there is no additional non-conformity or increase in the degree of non-conformity of the replacement signage.” Ordinance No. 8-2006, Article IX, Signs and Street Graphics, Sec. 9.1550 “Replacement”.

We find that appellee has not committed an error of law in holding that the natural expansion doctrine is not applicable in this matter by finding that the sign is a structure and not a use. Upon review Article IX of the ordinance, we find that appellee’s manner of interpretation is more sensible, especially when read with the Municipal Planning Code which holds that signs are, in fact, a nonconforming structure. Conversely, we find that appellant’s reliance on Section 9.110 is overly technical in contrast to a reading of Article IX as a whole. Therefore, we affirm the holding that appellant’s re-facing of the nonconforming sign is to be considered a change in a nonconforming structure and that the natural expansion doctrine is inapplicable.

We find no abuse of discretion in appellee’s denial of the variance. The following order shall be entered.

ORDER

And now, this 31 st day of July, 2014, after consideration of appellant’s appeal to the zoning board’s denial of a variance, and after consideration of all pleadings of record and oral argument on the matter, it is ordered that appellant’s appeal is denied.


author: WILLIMAMSON, J.,

text:
    McFadden v. Li & Fung Ltd.

      C.P. of Monroe County,
    No. 1182 CIVIL 2013

      Kevin M. Conaboy, for plaintiffs.

      Platte B. Moving, III, for defendants.
    July 18, 2014
   WILLIMAMSON, J.,

— This matter comes before the court on the preliminary objections of defendant Li & Fung, Ltd. to plaintiffs’ complaint. The plaintiffs allege Dawn McFadden was injured when she attempted to sit on a swing, manufactured or distributed by Li & Fung, at a Tractor Supply Store, and the swing collapsed. Li & Fung contends there is no cause of action in negligence by the plaintiffs against Li & Fung.

Li & Fung filed preliminary objections under Pa. R.C.P. 1028 (a)(4) for legal insufficiency of a complaint seeking a demurrer. In ruling on these objections, we must accept as true all well-pleaded allegations of the complaint. Carter-Jones Lumber Co. v. Northwestern PA Humane Society, 913 A.2d 1002 (Pa. Cmwlth. 2006). A claim may be dismissed by demurrer only where the pleadings allege facts clearly insufficient to establish any right to relief. Chichester School District vs. Chichester Education Ass’n., 750 A.2d 400 (Pa. Cmwlth. 2000). Li & Fung alleges the facts set forth in plaintiffs’ complaint fail to set forth any facts sufficient to allow relief for negligence in count IV.

We note the plaintiffs have alleged in the complaint at paragraph 10 that the swing was manufactured and/ or distributed “by the defendant, Li & Fung, Ltd.” At paragraph 40, contained in count IV, the plaintiffs allege the injuries were due to the carelessness and negligence of the defendant Li & Fung, Ltd., and consisted of the following:

“a. allowed and permitted a dangerous and defective swing to be on display and accessible to business invitees;
b. failed to maintain the display area in a safe condition;
c. failed to make reasonable inspection of the property which would have revealed the dangerous and defective swing to prevent injuries to the plaintiff;
d. failed to warn the plaintiff and others similarly situated of the dangerous and defective swing.”

Plaintiffs’ complaint at paragraph 40.

Plaintiffs’ complaint at paragraphs 41-44 describe the injuries plaintiff suffered as a result of the alleged negligence. Defendant Barry McFadden has alleged a loss of consortium claim.

Defendant Li & Fung maintain the plaintiffs have to be able to allege that Li & Fung controlled the premises where the accident allegedly occurred. Defendant cites the Superior Court decision in Smith v. Exxon Corp., 647 A.2d 577 (Pa. Super. 2005). However, the Smith case involved a distributor (Exxon) of fuel oil to a convenience store where a person was assaulted. Exxon was found to have no right or obligation as a distributor of products to control the operation of the store, and therefore, could not in any way prevent an assault that occurred at the store. Id.

Here, it is alleged that Li & Fung manufactured and/ or distributed (emphasis added) a swing that apparently broke while a patron of a store where it was being displayed and sold sat on it. The negligence alleged in paragraph 40 of the complaint is that Li & Fung allowed and permitted their swing to be on display and accessible to patrons, and failed to warn of a dangerous and defective swing. At a minimum, these allegations support a claim for negligence at this early stage of the action. The injuries are causally connected to a product alleged to have been manufactured and/or distributed by the defendant. If the product was manufactured by Li & Fung, the Smith case addressing the duty of a distributor, has no application. Therefore, there did not need to be an allegation of control of premises as to Li & Fung to support plaintiffs’ claim for negligence based on the facts set forth in the complaint.

The defendant next contends Li & Fung had to know or have reason to know of the dangerous condition for negligent failure to warn as alleged in paragraph 40(d) of the complaint. We agree that the plaintiffs have failed to set forth facts sufficient to support a claim of negligent failure to warn. There are no allegations that the defendant knew or should have known of the condition, that there was no reason to believe those patrons for which the swing was intended would realize the dangerous condition, or that the defendant failed to exercise reasonable care to inform of a dangerous condition. However, we cannot determine at this time whether or not under any circumstances that plaintiffs cannot recover under a theory of negligence. Therefore, we will deny the request for a demurrer, and order that the plaintiffs file an amended complaint with more specific allegations as to count IV, negligence, as to defendant Li & Fung.

ORDER

And now, this 18th day of July, 2014, the preliminary objections in the nature of a demurrer to count IV of plaintiffs’ complaint filed by defendant Li & Fung, Ltd. are sustained in part and denied in part. The plaintiffs shall file an amended complaint within thirty (30) days of the date of this order alleging more specific facts in support of negligence in count IV as to defendant Li & Fung, Ltd.