author: SMYTH, J.,

text:
    Concrete Coating Sys., Inc. v. Pharma. Mfg. Research Servs.

      Michael P. Morton, Paul C Troy, for plaintiff.

      John C. Fenningham, for defendant.
    March 10, 2014
   SMYTH, J.,

ORDER AWARDING SANCTIONS

In July 2012, in the course of granting defendant’s motion for judgment on the pleadings on grounds of expiration of the statute of limitations, 42 Pa.C.S. § 5525, in this action for breach of contract, this court also granted defendant’s motion, under Pa.R.C.P. 1023.2, for sanctions in the form of attorneys’ fees, reserving the amount of such fees for determination at later hearing. Plaintiff pursued an appeal of our order to the Superior Court of Pennsylvania in the meantime, in October 2012, we held a hearing on our interlocutory grant of sanctions. Cf. Pa.R.A.P. 1701(b) (6) (“After an appeal is taken. . . the trial court...may:... (6) Proceed further in any matter in which a nonappealable interlocutory order has been entered....”); Sims v. Feingold, 329 Pa. Super. 437, 439, 478 A.2d 868, 869 (1984) (“[W] here judgment is entered for liability only, reserving the question of damages, [the] judgment is ‘interlocutory[.’] Such a judgment is...not appealable”). After the Superior Court denied defendant’s motion to quash the appeal as interlocutory without prejudice to raising the issue again before the panel assigned to hear the case, Concrete Coating Sys., Inc. v. Pharm. Mfg. Research Serv., Inc. (Concrete II), No. 2389 EDA2012 (Pa. Super. Ct. Nov. 14, 2012) (order denying without prejudice motion to quash appeal), aff’d mem., 82 A.3d 1071 (Pa. Super. Ct. 2013) (unpublished table decision), we held our determination of attorneys’ fees in abeyance pending transmission of the official record to the Superior Court under Pa.R.A.P. 1931 and that court’s final decision. In July 2013, the Superior Court rendered its decision, affirming the portion of our order granting defendant judgment on the pleadings, and granting in part defendant’s motion to quash the appeal with respect to the portion of the order granting defendant’s motion for sanctions. Concrete Coating Sys., Inc. v. Pharm. Mfg. Research Servs., Inc., No. 2389 EDA 2012 (Pa. Super. Ct. July 19, 2013) (mem.). We then, at defendant’s request, and with some effort, scheduled a further hearing to make a final determination on the issue of sanctions, and, from defendant’s perspective, to supplement the record with evidence of further attorneys’ fees incurred as a result of plaintiff’s actions since the previous hearing. Having, on January 23,2014, completed the second hearing, and subsequently having had the notes of that hearing transcribed and filed of record, we here issue a final ruling on the issue(s) of sanctions/attomeys’ fees.

The dispute between the parties that eventually gave rise to this action and the sanctions now being considered began in 2004. In December of that year plaintiff, represented by its current counsel, filed a mechanic’s lien against defendant in this court, followed by an attempt to perfect the action by the filing of a mechanic’s-lien complaint. However, though the action proceeded for several years, as the time for trial neared, the parties and the presiding judge, Judge Rossanese, discovered the complaint had never actually been filed. This led to Judge Rossanese’s granting defendant’s motion to strike the mechanic’s lien and denying plaintiff’s motion to file a complaint nunc pro tunc. Plaintiff appealed to Superior Court, which affirmed Judge Rossanese’s ruling. Concrete Coating Sys. v. Pharm. Mfg. (Concrete I), 6 A.3d 556 (Pa. Super. Ct. 2010) (unpublished 2-1 table decision), appeal denied, 610 Pa. 586, 19 A.3d 1051 (2011).

Days after the Pennsylvania Supreme Court denied further review of the Superior Court’s affirmance of Judge Rossanese, plaintiff, on April 4, 2011, filed the present action alleging breach of contract arising out of the same occurrences that underlay the mechanic’s-lien action. Defendant responded with an answer and new matter pleading, inter alia, that the four-year period of limitation for commencing an action claiming breach of contract had long since expired on the 2004 transactions on which any claim was based. After the twenty-day period under Pa.R.C.P. 1026(a) for plaintiff to plead in response to the new matter had run. Defendant filed its motion for judgment on the pleadings under Pa.R.C.P. 1034, which provides:

(a) After the relevant pleadings are closed, but within such time as not to unreasonably delay the trial, any party may move for judgment on the pleadings.
(b) The court shall enter such judgment or order as shall be proper on the pleadings.

Pa.R.C.P. 1034(a)-(b). Defendant also moved for sanctions for violation of Pa.R.C.P. 1023.1(c), which provides, in part:

By signing, filing, submitting, or later advocating [a pleading, motion, or other paper], [an] attorney... certifies that, to the best of that person’s knowledge, information[,] and belief, formed after an inquiry reasonable under the circumstances,
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation,
(2) the claims, defenses, and other legal contentions therein are warrantedby existing law or by anonfrivolous argument for the extension, modification[,] or reversal of existing law or the establishment of new law,
(3) the factual allegations have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery....

Pa.R.C.P. 1023.1(c)(1)-(3). Plaintiff then filed an answer opposing the motion(s) as well as an untimely reply to defendant’s new matter asserting, for the first time, that the doctrines of “equitable tolling” and “unclean hands” (on defendant’s part) extended the statutory period of limitation for commencing the 2011 action.

After full briefing and oral argument on defendant’s motion(s) for judgment on the pleadings and sanctions and plaintiff’s response, we found no facts pled or asserted that would support plaintiff’s theories of equitable tolling or unclean hands, and granted judgment on the pleadings based on the running of the statute of limitations on plaintiff’s breach-of-contract claim. Our judgment further provided,

2) The request for sanctions in the form of attorneys’ fees is granted. The court shall convene a hearing to determine the reasonable amount of such fees on Wednesday, October 24, 2012. ... At least four weeks prior to the hearing, defendant shall file and serve an itemized, verified statement of the amounts of attorneys’ fees sought, and the specific work to which they pertain.

(Order pt. 2, July 17, 2012.)

On September 21, 2012 (while plaintiff’s appeal of our order and judgment was pending) defendant’s counsel submitted to the undersigned and served on plaintiff’s counsel the required statement, although without filing it with the prothonotary of the court. In that statement, counsel sought attorneys’ fees for defense of the latter stages of the appeals in the 2004 mechanic’s-lien action (Concrete I), in the total amount of $10,258.06, as well as for defense of the 2011 breach-of-contract action and appeal (Concrete II) expended to date, in the total amount of $40,225.71, for a grand total of $50,483.77. (V.S. Def. Fees 1-2, Sept. 21, 2012.) On the day of the hearing, counsel submitted a supplemental verified statement seeking further fees incurred since submission of the first statement (in the total amount of $3,358.27) so that the grand total now sought was $53,842.04. (Supplemented Oct. 24, 2012 V.S. Def. Fees 2.)

Also, two days before the hearing, separate counsel entered an appearance on plaintiff’s counsel’s behalf to represent his interests in the matter of sanctions. At the same time, new counsel filed a pre-hearing brief opposing sanctions against plaintiff’s counsel.

At the hearing, defendant presented testimony in support of the fees listed, and introduced the two verified statements into evidence as exhibits (Sanctions Hr’g Tr. 9, 16, Exs. 1-2, Oct. 24, 2012). As a third exhibit, defendant introduced letters sent to plaintiff’s counsel in the course of the Concrete I appeal and the 2011 litigation and appeal (the instant case) putting him on notice pursuant to Pa.R.C.P. 1023.2(b) that sanctions would be sought if the offending papers were not withdrawn. (Sanctions Hr’g Tr. 8-9, 16, Ex. 3.)

As previously stated, after this first hearing we put the request for sanctions in the form of attorneys’ fees in abeyance in light of the Superior Court’s denial, without prejudice to renewal before the panel hearing the merits, of defendant’s motion to quash plaintiff’s appeal. We did so in the event the Superior Court’s ultimate decision would determine the appeal divested us of jurisdiction to proceed on sanctions, or would reverse our decision. The Superior Court’s preliminary ruling on defendant’s motion also made it necessary for us to transmit the record of proceedings in our court to the Superior Court under Pa.R.A.P. 1931.

Once the Superior Court rendered its final decision in Concrete II, affirming our grant of defendant’s motion for judgment on the pleadings and granting defendant’s motion to quash the appeal with respect to our grant of sanctions, defendant sought to reopen the hearing on sanctions. After wrangling over scheduling, this court convened a second hearing on sanctions on January 23, 2014. With more wrangling, the parties filed several more briefs on the issue.

At the second hearing, defendant supplemented the requests for attorneys’ fees made at the first hearing with requests for additional fees incurred in the interim. Defendant introduced as exhibits at this hearing, inter alia, 1) a supplemental verified statement of additional fees and costs billed as of July 31, 2013 (basically covering the period during which the Concrete II appeal was pending in Superior Court) (Mot. Sanctions Tr. 6, 30, Ex. 4, Jan. 23,2014) and 2) a second supplemental verified statement of fees and costs billed as of January 23, 2014 (basically covering the period from conclusion of the Concrete II appeal to the date of the hearing) (Mot. Sanctions Tr. 6,30, Ex. 7). The cumulative effect of these two supplemental verified statements was to boost the amount of attorneys’ fees sought from the $53,842.04 grand total figure presented at the first hearing to a new grant total figure of $76,815.03. (Praecipe Attach Exs. D-4, D-7.)

On January 30, 2014, the court reporter for the second hearing filed the notes of testimony of that hearing of record with the prothonotary; along with the notes, she filed the exhibits admitted at the hearing. The same is not true of the exhibits introduced at the first hearing; they are not, to this point, officially filed of record. We shall remedy this deficiency in the record by filing the exhibits from the first hearing along with this order.

We proceed to lay out the basis and rationale of our decision on sanctions in the form of attorneys’ fees. See Pa.R.C.P. 1023.4(c). We shall address defendant’s requests for attorneys’ fees chronologically in the order they were incurred and submitted.

First, we consider the requests for fees submitted at the first hearing in October 2012. The first component of those fees was the $10,258.06 billed for defending the late stages of plaintiff’s appeal of dismissal of the 2004 mechanic’s-lien action (Concrete I). (V.S. Def. Fees 1-2, Sept. 21, 2012.) We deny an award of fees for this phase of the litigation. Judge Rossanese presided over the 2004 mechanic’s-lien case in this court. Defendant did not seek sanctions in the form of an award of attorneys’ fees from Judge Rossanese. The Superior Court affirmed Judge Rossanese, and the Supreme Court of Pennsylvania denied plaintiff’s petition for allowance of further appeal. Defendant did not seek sanctions from either court as could have been done under Pa.R.A.P. 2744, which authorizes an appellate court to award as costs attorneys’ fees and damages for delay “if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate[,] or vexatious.” Pa.R.A.P. 2744. The Pennsylvania Rules of Appellate Procedure further provide, “An application for further costs and damages must be made before the record is remanded, unless the appellate court, for cause shown, shall otherwise direct.” Pa.R.A.P. 2751. The Superior Court affirmed Judge Rossanese by a divided three-judge panel, with one judge filing a dissenting memorandum. Neither that court nor this lower court ever determined that any aspect of the 2004 mechanic’s-lien litigation or appeal was frivolous, dilatory, obdurate, or vexatious. We therefore disallow the $10,258.06 in attorneys’ fees sought for defending the late stages of the 2004 mechanic’s-lien appeal.

The next component of the fees defendant sought at the October 2012 hearing was $40,225.71 for defense of the 2011 (current) breach-of-contract litigation roughly from its commencement days after the Pennsylvania Supreme Court denied review in the Concrete I appeal until mid-September 2012 when this request for fees was submitted. (V.S. Def. Fees 1-2, Sept. 21, 2012.) We grant in part and deny in part this request for fees. To explain our ruling, we have further subdivided this component of the fees into two distinct categories: 1) those incurred from the commencement of the litigation in April 2011 until we granted defendant’s motion for judgment on the pleadings and for sanctions in July 2012, which we allow, and 2) those incurred after our ruling until the September 2012 submission of the statement, which we disallow.

We have found sanctions appropriate for defense of the April 2011 action up until the date of our July 2012 judgment because plaintiff’s counsel’s filing and pursuit of the litigation violated Pa.R.C.P. 1023.1(c) particularly in that “the claims...and other legal contentions therein [were not] warranted by existing law or by a nonfrivolous argument for the extension, modification^] or reversal of existing law or the establishment of new law,” Pa.R.C.P. 1023.1(c)(2), and that “the factual allegations [as to defendant’s conduct tolling the statute of limitations] have [no] evidentiary support,” Pa.R.C.P. 1023.1(c)(3), and no such factual allegations were specifically identified as likely to have evidentiary support after a reasonable opportunity for further investigation or discovery, Pa.R.C.P. 1023.1(c)(3). See also Concrete II, No. 2389 EDA 2012, slip op. at 6-7 (“The foundation of [plaintiff’s] argument is fatally flawed...[plaintiff’s] contention that it was ‘prohibited from filing a breach of contract claim while litigating its mechanics’ lien claim’ amounts to nothing more than an inaccurate bald assertion.... [E]ven if we assume arguendo that [defendant] ‘concealed’ its defense in the mechanics’ lien action, nothing about this strategy affected [plaintiff’s] ability to file a breach of contract action. Moreover, nothing about this strategy affected [plaintiff’s] ability to discover that [defendant] allegedly breached the parties’ agreement in 2004”). However, we have disallowed sanctions for the two-month period immediately after our July 2012 judgment, because, with a final favorable judgment in hand, defendant’s attorneys’ fees incurred for this period were largely for 1) defense of plaintiff’s new appeal from our judgment to Superior Court (Concrete II) and 2) preparation for pursuit of the attorneys’ fees themselves.

We have explained in reference to the appeal in Concrete I why our awarding fees for defending an appeal to the Superior Court without that court’s authorization is inappropriate. See Pa.R.A.P. 2744; Pa.R.A.P. 2751. For the same reasons, we decline to award fees for defense of the Concrete II appeal.

Though we do have discretion to award fees incurred in pursuing a motion for sanctions, Pa.R.C.P. 1023.2(b) (“If warranted, the court may award to the party prevailing on the motion [for sanctions] the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion.” (emphasis added)), we have decided such fees are not warranted in this case. We so find because of the protracted nature of the pursuit of fees through two hearings separated by the Concrete II appeal, plaintiff’s counsel’s good-faith, though in our view mistaken, opposition to the sanctions, and the relative ease of collecting, collating, and presenting to the court invoices for legal services that had already been billed to defendant by its counsel, and paid.

Deducting the attorneys’ fees claimed for the two-month period immediately after the July 2012 judgment from those claimed for defense of the 2011 action in the September 2012 verified statement, we arrive at a figure of $35,433.62 in attorneys’ fees sought. We further, in our discretion, reduce the approved amount of this total to be awarded to $20,000, roughly 57% of the amount sought. See Pa.R.C.P. 1023.4(a)(2)(iii) (“[T]he sanction may consist of, or include,...(iii) if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys’ fees and other expenses incurred as a direct result of the violation.” (emphasis added)). Our reasoning on this point is that counsel’s defense of the litigation, from its April 2011 filing until final judgment in July 2012, consisted almost entirely of preparing pleadings and other legal papers, which were not, all told, overly voluminous or complex; and that, during this period, somewhat less than half these pleadings and papers were directed towards recovering attorneys’ fees as an objective parallel to winning final judgment. (For example, of the nine pages of defendant’s combined motion for judgment on the pleadings and for sanctions captioned under the heading “motions,” six pages argued the statute of limitations as grounds for judgment on the pleadings while three advocated sanctions. (Def. Mot. J. Pleadings Mot. Sanctions 6-15.) However, of necessity, much of the discussion of the statute-of-limitations defense highlighted not the mere lack of merit, but the frivolous, and hence sanction-worthy, character, of plaintiff’s position in maintaining the action.)

We next consider the “supplemental” verified statement of fees defendant submitted at the October 2012 hearing. This statement summarized fees incurred or billed between the September 2012 initial statement and the date of the hearing. (Supplemented Oct. 24, 2012 V.S. Def. Fees 2.) These invoices represented fees incurred either in opposing the ongoing Concrete II appeal to Superior Court or in preparing for and pursuing the hearing for sanctions itself. For the reasons discussed above in relation to the portions of the fees from the September 2012 statement we disapproved, we also decline to award the fees claimed in the October 2012 supplemental statement.

We advance to the January 2014 second hearing and the additional fees requested there. We disallow these fees, because they were all incurred either in defending the Concrete II appeal to the Superior Court or in pursuing the fees themselves.

As stated, the new fees sought at the January 2014 hearing consisted of 1) additional fees and costs billed as of July 31, 2013 (covering the period during which the Concrete II appeal was pending), and 2) additional fees and costs billed as of January 23,2014 (covering the period from conclusion of the Concrete II appeal to the date of the hearing). These additional fees raised the total amount of fees claimed from $53,842.04 (the figure presented at the first hearing) to $76,815.03. (Praecipe attach exs. D-4, D-7.) For reasons already discussed, we decline to award defendant these approximately $23,000 in additional fees.

In summary, after considering defendant’s several verified statements of attorneys’ fees incurred, the evidence presented at the hearings of October 24,2012, and January 23, 2014, and the briefs and arguments of counsel, we award defendant $20,000 in attorneys’ fees as sanctions under Pa.R.C.P. 1023.4. These attorneys’ fees are payable by plaintiff’s original counsel and his firm only; plaintiff itself shall not be held liable for them. See Pa.R.C.P. 1023.4(a)(3) (“Except in exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates^] and employees”); Pa.R.C.P. 1023.4(b)(1) (“Monetary sanctions may not be awarded against a represented party for violation of Rule 1023.1(c)(2)”).

With respect to the categories of attorneys’ fees we have disallowed in this order, our decision shall be without prejudice to defendant’s right to pursue these fees in an action under Pennsylvania’s Dragonetti Act, 42 Pa.C.S. §§ 8351-8354. In the original motion for sanctions, defendant cited the act as an alternate basis for the relief sought. However, the act, unlike the Pennsylvania Rules of Civil Procedure authorizing sanctions, contemplates a separate action for wrongful use of civil proceedings distinct from the action in which the sanctioned conduct occurs. But cf. 42 Pa.C.S. § 2503 (authorizing reasonable attorneys’ fees as taxable costs of a matter for certain classes of litigants); id. § 8355 (authorizing reasonable attorneys’ fees and costs for violations concerning signing and certifying pleadings, motions, and other papers), suspended by Pa.R.C.P. 1023.1(e).

Finally, we address the argument raised by plaintiff’s counsel’s counsel at the hearings on the award of attorneys’ fees and in pre-and post-hearing briefs that defendant’s motion for sanctions was procedurally improper because it was made in the same document that contained the motion for judgment on the pleadings. See Pa.R.C.P. 1023.2(a) (“An application for sanctions under this rule... shall be made separately from other applications....”); see also Pa.R.C.P. 1023.1 cmt. (“The rule provides that requests for sanctions must be made as a separate motion, i.e., not simply included as an additional prayer for relief contained in another motion”). Plaintiff’s counsel waived this argument by failing to raise it in response to the original motion for sanctions, waiting until after the court had granted both the motion for judgment on the pleadings and the motion for sanctions and scheduled a hearing devoted solely to the amount of a reasonable attorney’s fee, and then appealing our ruling. Cf. Pa.R.A.P. 302 (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal”). Had plaintiff specifically and timely objected under the rules cited to defendant’s moving for judgment on the pleadings and for sanctions in the same document, defendant could have immediately cured the procedural irregularity by refiling the motions in separate documents. The court did not err in entertaining the motions jointly when no objection was made to this procedure. Furthermore, though defendant could have easily corrected its procedural miscue had plaintiff raised it, defendant could not wait for the court to grant the motion for judgment on the pleadings to test the merits of the motion before moving for sanctions; “A motion requesting sanctions under this rule shall be filed in the trial court before the entry of final judgment.” Pa.R.C.P. 1023.2(c) (emphasis added). Filing and hearing the motions together in the first instance actually served judicial economy by avoiding duplicative proceedings on the same basic issues. Coupling the motion for sanctions with the motion for judgment on the pleadings also served to put plaintiff’s counsel on notice that pursuing the action any further and opposing judgment on the pleadings would put him at risk for liability for further attorneys’ fees beyond those already incurred. Had the warnings been heeded, he could have avoided years of needless and, indeed, frivolous litigation.


source: Caselaw Access Project

author: GRAY, J,

license: Public Domain

text:
    Hunsberger v. Zechman

      Jeffrey A. Rowe, for plaintiff.

      Danyelle M. Zechman, for defendant.
    March 12, 2014
   GRAY, J,

ORDER

And now, this 12th day of March, 2014, following a hearing held on February 28, 2014, regarding credits, payments due and related matters and plaintiff’s petition for additional credits and clarification, the court enters the following order. It is ordered and directed as follows.

Findings of Fact

1. Danyelle Zechman originally purchased the 112 Laurel Run Circle, Williamsport (“property”), consisting of 0.115 acres of land, for $100,000 as evidenced by deed executed February 28, 2002, the date of closing on the property.

2. By a deed entered October 22, 2009, Danyelle Zechman transferred the property to herself Danyelle M. Zechman and plaintiff Brian C. Hunsberger, listing the consideration as $1. The parties own the subject property “as joint tenants with the right of survivorship and not as tenants in common.”

3. Upon plaintiff’s motion following a default by defendant, the court ordered and directed that the property be partitioned, and found that the parties are co-tenants with a fifty percent interest each.

4. The court finds that the property is incapable of division without spoiling the whole, thus requiring a sale of the property.

5. As of September 2013, there were three outstanding mortgages. Two of the mortgages were used to purchase the property by Danyelle Zechman. Those mortgages are: US Bank for $49,800 and Manufacturers and Traders Trust Company for $22,000 both recorded on March 1, 2002. The third mortgage was an open end mortgage from Brian C. Husberger, Danyelle Zechman and J. Marco Hunsberger (plaintiff’s father) to PSECU for $54,000, recorded December 7, 2009.

6. After Danyelle Zechman made payments for a qualifying period of time, one of the mortgages used to purchase the property has been forgiven. Danyelle Zechman has been making payments on the other purchase mortgage in the amount of $548 per month, with the taxes being put in escrow and paid from her mortgage payment.

7. As of about mid-January 2013, plaintiff vacated the property and Danyelle Zechman has been in exclusive possession of the property.

8.Zechman paid $75 in February 2013 and $300 in April 2013 toward the open end mortgage to PSECU.

9. Plaintiff’s father has been making payments on the open mortgage to PSECU in the amount of $633 per month on behalf of his son, Mr. Hunsberger, since May 2013.

10. This court finds that a price of $125,000 for the property is a reasonable price and shall be accepted if offered.

11.Mr. Hunsberger has incurred costs in the amount of $2,330.77 for improvements to the property necessary to maximize the ultimate sale price that can be obtained for the property. Ms. Zechman provided $20 for garbage removal. While plaintiff used defendant’s electric, heat and water while working there, the court finds this was de minimus and not sufficiently specified at the hearing to award a credit for it.

Conclusions of Law

12. A co-tenant may file an action for partition pursuant to Pa. R.C.P. Rule 15 51, et. seq. After a default by defendant, the court should enter an order directing partition pursuant to Pa. R.C.P. Rule 1557 and setting forth the names of the co-tenants and the percentage of their respective interests in the property.

13. As the court has found that the property is not capable for division without prejudice to or spoiling the whole, the court has directed that the property be sold in accordance with Pa. R.C.P. Rule 1563.

14. The court shall determine the “credit which should be allowed or the charge which should be made, in favor of or against any party because of use and occupancy of the property, taxes, rents or other amounts paid, services rendered, liabilities incurred or benefits derived in connection therewith or there from.” Pa. R.C.P. Rule 1570.

15. There are two requirements for the recovery of fair rental values: “(1) the complaining party must show he is not in possession of the premises; and (2) it must be shown that the remaining tenant in common occupies exclusive possession of the premises.” Sciotto v. Sciotto, 288 A.2d 822, 823-824 (Pa. 1972)

16. “[WJhere a cotenant places improvements on the common property, equity will take this fact into consideration on partition and will in some way compensate him for such improvements, provided they are made in good faith and are of a necessary and substantial nature, materially enhancing the value of the common property.” Bednar v. Bednar, 688 A.2d 1200, 1205 (Pa. Super. Ct. 1997), quoting, 68 C.J.S. Partition, § 139(a)(further citations omitted). Such improvements must be necessary. Id.

17.“The parties are entitled to a credit for their respective share of the expenses related to the Residence, including mortgage, property taxes, insurance and maintenance costs.” Swails v. Haberer, 2004 U.S. Dist. LEXIS 17727 (E.D. Pa. Aug. 30, 2004), citing, Pa. R. Civ. P. § 1570 (a)(5); Fischer v. Wurts, No. 96-6863, 1997 U.S. Dist. LEXIS 10393, *16 (E.D. Pa., July 18, 1997). The credit is for half that party’s contribution. Id.

Discussion

Upon plaintiff’s motion following a default by defendant, the court ordered and directed that the property be partitioned, and found that the parties are co-tenants with a fifty percent interest each. The court also found that the property was incapable of division and required its sale pursuant to Pa. R.C.P. Rule 1551, et. seq. Defendant Danyelle Zechman significantly contributed to establishing the property as an asset for both parties by qualifying for the purchase mortgages, making mortgage payments, and qualifying for the forgiveness of one of the mortgages. Ms. Zechman continues to pay the outstanding original mortgage by paying the $548 per month, which includes taxes and insurance. The parties resided together for a period of time with each contributing to the household. Mr. Hunsberger vacated the property in about mid-January 2013. Danyelle Zechman is therefore responsible for one half the fair rental value as of the first full month that she had exclusive possession, February 2013 forward. Sciotto v. Sciotto, 288 A.2d 822, 823-824 (Pa. 1972). Since the parties separated, plaintiff’s father has essentially made the payments on the open ended mortgage to PSECU with the exception of $75 in February 2013 and $300 in April 2013 paid by defendant. Therefore plaintiff is entitled to a credit for half the amount of those payments minus those made by defendant and defendant is entitled to a credit for half the amount of the payments on the original mortgage. Swails v. Haberer, 2004 U.S. Dist. LEXIS 17727 (E.D. Pa. Aug. 30, 2004). Plaintiff has significantly contributed to preparing the property for sale so as to maximize the price that can be obtained. As a result, he is entitled to a credit for half of those costs. Bednar v. Bednar, 688 A.2d 1200, 1205 (Pa. Super. Ct. 1997). As taxes and insurance are paid through defendant’s mortgage, defendant is entitled to a credit for half of those payments. Swails v. Haberer, 2004 U.S. Dist. LEXIS 17727 (E.D. Pa. Aug. 30, 2004).

The court enters the following order.

ORDER

And now, this 12th day of March, 2014, for the reasons stated above, it is hereby ordered and directed as follows:

1. Defendant Danyelle Zechman may remain in the house pending closing but must fully cooperate in the sale and showings of the property. The court finds that it is necessary to make some improvements to the property in order to secure a decent price for the sale. Therefore, Ms. Zechman is specifically ordered and directed to allow plaintiff Brian C. Hunsberger and his father to access the property provided they give her notice of at least two hours. Further, Ms. Zechman is specifically ordered and directed to allow third parties to access the property for showings or to make some improvements provided notice has been given by plaintiff as soon as reasonably practical but no later than the night before the access is required.
2. The parties shall execute a listing agreement and proceed in good faith to effectuate the sale of the property for a price of $125,000 or greater. This court finds that a price of $125,000 for the property is a reasonable price and shall be accepted if offered. Defendant will cooperate with signing all documents necessary to convey the property with clear title.
3. The proceeds of the sale shall be applied first to the payment of the mortgages by order of priority of the liens to satisfy and cancel of record the liens of such mortgages. After satisfaction of mortgage liens, the payment of credits shall be made. If any funds remain, they shall be distributed equally between the parties.
4. Plaintiff Mr. Hunsberger is awarded a credit of $316.50 per month representing a credit for Vi the mortgage payments of $633 month from February 2013 forward made by Mr. Hunsberger’s father, minus $375 paid by defendant during that period.
5. Plaintiff Mr. Hunsberger is awarded credit for rent in the amount of $500 per month, representing Vi the value of the fair rental amount, as determined by the testimony of the real estate agent, since defendant’s period of exclusive possession of the property starting with the full month of February 2013.
6. Plaintiff Mr. Hunsberger is awarded $1155.39, representing Vi of the amount of costs incurred for making improvements to the property ($2,330.77) minus $20 paid by defendant for garbage removal.
7. Defendant is awarded a credit for Vi the amount she has paid in taxes and/or municipal fees, homeowners insurance related to the property since February 2013 and a credit in the amount of $278 per month since February 2013, representing half the $548 payment she has been making on the original mortgage.
8. These amounts will need to be adjusted at the time of settlement to reflect the ongoing credits for rent, improvements, mortgage payments, etc. incurred from this date forward as well as to make any adjustments related to the actual sale price of the property.


author: MOTTO, P.J.,

text:
    French v. Fedorchak

      Richard W. Epstein and Gregory M. Reichart, for plaintiffs.

      Diane Blackburn and Mary Ann C. Action, for defendants.
    March 17, 2014
   MOTTO, P.J.,

Before the court for disposition are the defendants’ preliminary objections to plaintiffs’ complaint. The preliminary objections contend that any reference in the complaint to allegations of “recklessness,” “careless disregard,” “reckless indifference,” “conscious indifference,” “outrageous, wanton and grossly negligent conduct,” “unreasonable risk” and “grossly negligent” be stricken from plaintiffs’ complaint because plaintiffs have not alleged any specific facts which would demonstrate that defendants possessed a state of mind or engaged in acts which would elevate their conduct to that of alleged willful, wanton or reckless conduct. Despite the manner in which the defendants in their preliminary objection have framed the issue, the court finds that the dispositive issue in this case is whether the plaintiffs have alleged sufficient facts to support a claim for punitive damages.

According to the complaint, this lawsuit arises out of a vehicular accident that occurred on August 6, 2011, when the plaintiff husband was operating his vehicle in a northerly direction on State Route 62 in French Creek Township, Venango county, Pennsylvania, with the plaintiff wife as a passenger. Defendant Fedorchak, while an employee of defendant McClymonds acting in the course of his employment, was operating a tractor trailer loaded with tons of crushed vehicles in a southerly direction approaching plaintiffs’ vehicle on State Route 62. The complaint alleges that Fedorchak drove his tractor trailer at such a speed and in such a reckless manner that the vehicle crossed the center line of State Route 62 into the northbound lane, then attempted to steer back into the southbound lane, causing the load of crushed vehicles to shift and the tractor trailer to leave its axles and roll over, thereby throwing the crushed vehicles from the trailer onto the plaintiffs’ vehicle.

The allegations that plaintiffs rely upon to support a claim for punitive damages include allegations that defendant Fedorchak operated the vehicle at a “high, dangerous and reckless speed under the circumstances,” “driving too fast for conditions,” “failing to make certain that the cargo of crushed vehicles was properly distributed and secured,” “operating the trailer without extreme caution and at an unsafe speed,” “operating the tractor trailer without undertaking a proper pre-trip inspection,” “operating in violation of the Federal Hours of Service Rules,” “operating when defendant knew or should have known he was physically incapable of doing so safely,” and “operating a tractor trailer that was in such condition as likely to cause an accident or breakdown.” Complaint paragraphs 11(a), (h), (m), (o), (p), (q), (r), (u).

Relative to defendant McClymonds supply, defendant Fedorchak’s employer, the complaint alleges outrageous conduct in “failing to properly and adequately investigate defendant’s experience, record and fitness for employment,” “failing to generate and/or enforce proper rules, policies and procedures regarding the safe operation of its vehicles,” “allowing defendant operator to drive a tractor trailer when owner knew or should have known that the tractor trailer was improperly maintained and therefore unsafe to drive,” “allowing defendant operator to drive an overloaded tractor trailer which defendants knew or should have known can compromise a tractor trailer’s stability and the driver’s ability to operate,” “allowing defendant operator to haul a load that was improperly distributed and/or not adequately secured,” “failing to establish and enforce safe driving practices and procedures,” “failing to keep the tractor trailer systematically inspected,” and “permitting defendant operator to drive its tractor trailer when he was unable to do so properly, safely, and lawfully and he exhibited a pattern and course of conduct of exceeding posted speed limits, violating state traffic laws and violating federal motor carrier safety regulations hours of service limitations.” Complaint Paragraphs 12(b) through (g), (i), (j).

It is well settled that in considering preliminary objections, the court must accept all material facts set forth in the complaint, as well as all inferences reasonably deducible therefrom as admitted and true, and decide whether, based upon the facts averred, recovery is impossible as a matter of law. See Wiernik v. PHH U.S. Mortg. Corp., 736 A.2d 616 (Pa. Super. 1999). Preliminary objections should be sustained only in cases that are clear and free from doubt. See Pennsylvania AFL-CIO, ex.rel. George v. Commonwealth, 563 Pa. 108, 757 A.2d 917 (2000); Butler v. Illes, 747 A.2d 943 (Pa. Super. 2000). It should be clear from all of the well pleaded facts that the pleader will unable to prove facts sufficient to legally establish a right to relief. Id. Any doubt should be resolved by refusing to sustain the objections. See Ellenbogen v. PNC Bank, N.A., 731 A.2d 175 (Pa. Super. 1999).

A leading case in Pennsylvania on the issue of punitive damages is Focht v. Rabada, 217 Pa. Super. 35, 268 A.2d 157 (1970). InFocht, the defendant driver, while proceeding at an excessive speed down a crowded thoroughfare, struck an automobile, which, in turn, struck the plaintiff pedestrian causing personal injuries to the plaintiff. The trial court had ruled that evidence of defendant’s intoxication was inadmissible because it could not support an award of punitive damages. On appeal, the Superior Court vacated the lower court’s ruling and concluded that under the appropriate circumstances, evidence of driving while under the influence of intoxicating liquors may constitute a sufficient ground for allowing punitive damages pursuant to §908 of the restatement of torts. Id. at p. 42. The court went on to say that “driving while under the influence of intoxicating liquor, with its very great potential for harm and serious injury, may under certain circumstances be deemed ‘outrageous conduct’ and ‘a reckless indifference to the interest of others’ sufficient to allow the imposition of punitive damages.” Id. at 40. The Superior Court thus remanded the case to the trial court to determine whether the office of proof were sufficient.

As noted in Focht, Pennsylvania has adopted the law of punitive damages as set forth in §908 of the restatement of torts and the comments thereunder. Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355 (1963). §908(1) of the restatement provides that “punitive damages are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct, comment (b) of the above section states that ‘outrageous conduct’ consists of acts done with a bad motive or with a reckless indifference to the interests of others.” Punitive damages are thus recoverable when the act is done with reckless indifference as well as with bad motive or intent. Focht, Supra at p. 38.

The Focht court determined that the phrase “reckless indifference” derived its meaning from comment (d) of §500 of the restatement of torts. That comment provided that if the actor’s conduct is such to involve a high degree of chance that serious harm will result from it to anyone who is within such range is conclusive of the recklessness of his conduct toward them. Id. at p. 39.

The Focht court further determined that in certain factual circumstances, the risks presented by a drunken driver may be so obvious and the probability that harm will follow so great that outrageous conduct may be established without reference to motive or intent. Id. at p. 41.

The question in the case sub judice is whether the complaint sufficiently avers appropriate circumstances for the award of punitive damages. Pennsylvania is a fact-pleading state, and a complaint must give a defendant both notice of the plaintiff’s claim and the facts essential to support the claim. Smith v. Browning, 283 Pa. Super. 116, 120, 423 A.2d 743, 745 (1980). The plaintiff in pleading a claim for punitive damages is only required to plead sufficient facts which, if proven, would support an award of punitive damages. Joseph v. Naylor, 257 Pa. 561, 101 A. 846 (1917). In short, a punitive damage claim will be allowed where defendant’s conduct involves a high degree of chance that serious harm will result, and the fact that defendant either knows or has reason to know that others are within the range of danger is indicative of recklessness. See Focht v. Rabada, Supra.

The court here finds that the complaint sufficiently alleges fact which, if proven, would support an award of punitive damages. The operation of a tractor trailer loaded with tons of crushed vehicles is inherently dangerous and involves a high degree of chance that serious harm will result to anyone on the roadway if such activity is not done with care. The potential for harm and serious injury is inherent in the nature of the activity. Operating a tractor trailer loaded with crushed vehicles constitutes reckless indifference to the interest of others and outrageous conduct if done under the circumstances alleged in paragraphs 11 and 12 of the complaint, including the allegations that the tractor trailer was operated at a high, dangerous and reckless speed and after failing to make certain that the cargo of crushed vehicles was properly distributed and secured and in operating in violation of federal hours of service rules, and further operating when the defendant knew or should have known that he was physically incapable of doing so safely. Traveling at a high rate of speed around a curve can be considered to be reckless and outrageous conduct when one is operating a tractor trailer loaded with improperly secured tons of crushed vehicles. Further, as to defendant McClymonds supply, as the employer, it can be considered to be outrageous conduct and reckless indifference if the employer fails to properly and apply investigate the experience of its drivers and their fitness for employment and fail to generate proper rules, policies and procedures for the safe operation of its vehicles and it allowing a driver to operate an improperly secured overloaded tractor trailer, or an improperly maintained tractor trailer, or allowing a driver to operate a tractor trailer where the employer knows that the driver has exhibited a pattern and a course of conduct of unsafe driving. These allegations, if proven, exhibit reckless indifference to the degree of danger that accompanies allowing a tractor trailer to be loaded in the manner alleged in the complaint and operated without care as to the competency of the driver, the safety of the equipment, and the proper securing of dangerous cargo.

For the foregoing reasons, the defendants’ preliminaiy objections shall be denied by separate order of court.

ORDER OF COURT

And now, this 17th day of March, 2014, for the reasons set forth in the accompanying date of even date herewith, it is ordered and decreed that the defendants’ preliminaiy objections to plaintiffs’ complaint are overruled and denied. The defendants shall file an answer to the complaint within twenty (20) days of the date this order is docketed.

      . The case was subsequently settled and the trial court did not have to rule on the above issue.


author: SPRECHER, J.,

text:
    Ladd v. Borough of West Reading Civil Service Commission

      James E. Gavin, for appellant.

      Elizabeth A. Magovern, for appellee Borough of West Reading Civil Service Commission.

      Christopher P Gerber, for appellee Borough of West Reading.
    March 18, 2014
   SPRECHER, J.,

Appellant appeals the order dated November 21,2013, which denied appellant’s appeal and affirmed the decision of the Borough of West Reading Civil Service Commission. This opinion is filed pursuant to Pa. R.A.P. 1925.

FACTS

This court heard argument and gleaned the following facts from the record of the hearing before the Borough of West Reading Civil Service Commission (Commission).

Appellant, Ronald Ladd, was a police officer for the Borough of West Reading (Borough) from May 16, 1994 to November 14, 2012. Before working for the Borough, he had worked in other police departments in Berks County. He also had a military career, with over thirty years as service, as a military police officer or security guard. He retired from the army in 2008 with a rank of Master Sergeant/First Sergeant.

On August 31, 2012, Appellant returned to work after an extended leave of absence due to surgery on his hand. The Borough of West Reading Police Department (Department) divides its police officers into two squads headed by sergeants. Upon his return, appellant was assigned to the squad of Sergeant Rick Vetter. Appellant did not want to be assigned to that squad because he did not like and did not want to work with another officer in the squad, Officer Tom Hawn. He complained to the police chief at that time, Edward Fabriziani, who refused to change his assignment which had been a joint decision between Chief Fabriziani and the Borough mayor, Shane Keller. Chief Fabriziani testified that appellant had told him that he did not like Officer Hawn, did not want to work with him, and refused to work with him. Chief Fabriziani testified that in order to maintain order and discipline, officers are not permitted to challenge their assignments. Appellant requested a meeting with the mayor; a meeting was scheduled for September 5, 2012, but was never held due to the intervening incident of August 31, 2012, which ultimately resulted in appellant’s discharge due to conduct unbecoming a police officer.

Appellant testified that officer Hawn was historically negative about him, bragging that he would not back him up. Officer Hawn had been suspended once because he had threatened to shoot appellant and his partner.

On August 31, 2012, Officer Hawn was the primary officer who responded to a domestic dispute. Appellant was his back-up. The woman had a protection from abuse order against the man whom she wanted to vacate her residence. Officer Hawn determined that the woman had invited the man into her home. After talking with the parties, Officer Hawn determined that he would not file any charges against the man.

Appellant contends that Officer Hawn yelled at him in front of the couple. Appellant became incensed that Officer Hawn disrespected him in the presence of others. He left the scene and returned to the department to write a report about an earlier call he had taken. He did the report first before going to see Chief Fabriziani to complain about Officer Hawn, because he wanted to calm down so that he would be able to talk to Chief Fabriziani in a neutral tone.

After typing the report, appellant went to see Chief Fabriziani in his office to talk about the domestic violence call. Chief Fabriziani informed him that he had already discussed the matter with Officer Hawn and was satisfied with that officer’s decision. The police chief and appellant gave conflicting testimony about what followed this disclosure.

According to appellant, Chief Fabriziani suddenly lunged out of his chair where he had been sitting and got his finger in appellant’s face while screaming and spitting on appellant. Appellant testified that after Chief Fabriziani had pushed him, he had pushed him back, and the parties had engaged in a pushing match. Appellant then closed the door because he is “not a child and I’m not going to be treated like a child” (Transcript, 239). He claims that he was concerned for his own safety because he did not have a good relationship with Chief Fabriziani and did not trust him. He did not turn his back on the other man because he did not want to be attacked from behind or shot.

Appellant testified that he did not “think” that he punched Chief Fabriziani. During the struggle he was pushed towards the computer. He pushed Chief Fabriziani on the chest; unfortunately, the chief turned and struck his head on a bookcase. He is not aware that Chief Fabriziani struck his head more than once on the bookcase. Appellant admits that he had Chief Fabriziani pushed up against the bookcase until he felt the man’s back muscles relax. Then appellant backed away from the chief.

On cross examination, appellant admitted that he had never informed Chief Fabriziani that he did not want to work with Officer Flawn because the other officer would not back him up. In an interview with the attorney for the Borough, he told the attorney that he was “pissed off’ when he went to see Chief Fabriziani (Transcript, 265). He also told the attorney that he would not tolerate the chief’s yelling at him (Transcript, 275). During the investigation, he said that he had tried to punch Chief Fabriziani, but he did not think that he had connected with Chief Fabriziani’s body. At the hearing, appellant did not know if he said to Chief Fabriziani, “Who the fuck do you think you are telling me to sit down?” (Transcript, 280). During the investigation, he admitted that he may have made this statement.

Chief Fabriziani testified that appellant asked to talk with him, but became angry because he had not liked what he had said to him. Appellant went into a tirade and said he would not work with Officer Hawn. Chief Fabriziani thought appellant was leaving his office when he walked to the door; instead, appellant shut the door. Appellant returned to the corner of Chief Fabriziani’s desk and told him that nobody disrespects him and that he’s tired of Chief Fabriziani’s pandering to Officer Hawn (Transcript, 66).

Chief Fabriziani had no guns on his person; his gun was in the office in plain sight. Chief Fabriziani asked appellant to sit down in the chair because he wanted to discuss appellant’s actions which he felt were out of line. Appellant refused to sit down despite being ordered three times to do so. Appellant had a clipboard in his hand and slammed it hard on Chief Fabriziani’s desk. His action caused items to fall off the desk and the clipboard. Chief Fabriziani finally told appellant that if he did not sit down in the chair he would consider it to be disobeying a direct order and he would be disciplined.

Instead of sitting down, appellant approached closer to the chief which made Chief Fabriziani feel threatened. Appellant spoke to Chief Fabriziani through clenched teeth and with his left hand grabbed him by the side of his neck, and punched him with his right hand. The first blow landed just below Chief Fabriziani’s left eye. Appellant continued to strike him, and Chief Fabriziani put his hands up to defend himself. Appellant slammed Chief Fabriziani’s face into a bookcase which broke his glasses. The glasses had to be replaced. Appellant slammed Chief Fabriziani two more times into the bookcase and then threw him on top of his desk, punching him on his neck, back, and shoulders. Chief Fabriziani again felt threatened, so he yelled for his secretary. Chief Fabriziani shoved appellant back, but appellant pushed Chief Fabriziani against the credenza. Chief Fabriziani pushed appellant and left his office. He hollered for his secretary to get the borough manager and the on duty officer (Officer Hawn) because he had been assaulted. He suffered bruises, contusions, soreness, and red marks from the attack. Appellant bruised his hand, although he did not immediately report it.

When Chief Fabriziani returned to his office, appellant was still there. He ordered appellant to get his duty weapon out, unload it, and put it on the desk. Appellant complied with these requests. Chief Fabriziani told appellant in front of the borough manager that he was being placed on administrative leave pending disciplinary procedures. The Borough Manager, Richard J. Sichler, testified that when Chief Fabriziani informed appellant of this, appellant’s response was “Good luck with that” (Transcript, 32).

Mr. Sichler also testified that at 9:00 a.m., on August 31, 2012, appellant replied to him in a sarcastic voice, “That remains to be seen” after this witness had told him that it was good to see him. (Transcript, 29). Mr. Sichler received a telephone call form Chief Fabriziani’s secretary to inform him that he was needed at the Borough Hall. When he returned, he thought that Chief Fabriziani was very agitated and upset. He saw a minor cut and bruising under his eyes, and he was not wearing his glasses. He also had trouble with his right leg.

Mr. Sichler testified that Chief Fabriziani’s office was broken up when he had seen it. The computer was knocked to its side, papers were strewn about, an office chair was knocked over, and items that were on the desk were pushed or on the floor.

The Borough mayor, Shane Keller, placed Chief Fabriziani on administrative leave; however, he was never reprimanded about this incident. Chief Fabriziani is now a police officer within the Borough. Mr. Keller recommended that appellant be terminated, and the Borough Council voted unanimously to terminate appellant. Mr. Keller did not recommend Chief Fabriziani’s dismissal.

Based on this record, this court sustained the Civil Service Commission’s determination and denied appellant’s appeal. Appellant filed a timely appeal.

ISSUES

Appellant raised the following issues in his Concise Statement of Errors Complained of on Appeal:

1. Whether this court erred for failing to find that the evidence was insufficient as a matter of law because the Borough failed to produce substantial evidence of conduct unbecoming an officer in that it failed to produce evidence that appellant’s conduct brought the department into disrepute.

2. Whether this court erred for failing to find that the decision of the Civil Service Commission improperly relied on evidence outside the record.

3. Whether this court erred for failing to find that the Commission erred as a matter of law by prohibiting the appellant from introducing evidence of letters to the editor.

4. Whether this court erred for failing to find that the evidence was insufficient as a matter of law in that the Borough failed to disprove the appellant’s claim of self-defense.

5. Whether this court erred for failing to find that the decision of the Commission was against the weight of the evidence.

DISCUSSION

Where a court has not received any additional evidence or testimony on an appeal from a civil service commission’s decision, its scope of review is limited to determining whether the commission has committed an error of law or abused its discretion. The court must affirm the civil service commission’s decision if there is substantial evidence to support it. This court found that the record in the case sub judice is characterized by conflicting testimony, but the uncontroverted testimony and the credible evidence support the Commission’s decision to terminate appellant. This court will address appellant’s issues seriatim.

Appellant first contends that this court erred for failing to find that the evidence was insufficient as a matter of law because the Borough failed to produce substantial evidence that appellant’s conduct brought the department into disrepute. This complaint is without merit.

Appellant was terminated for conduct unbecoming a police officer. Conduct unbecoming an officer, alone, constitutes just cause for dismissal. The conduct need not be criminal in nature or proven beyond a reasonable doubt. Civil Service Commission of the City of Philadelphia v. Wojtusik, 106 Pa. Cmwlth. 214, 525 A. 2d 1255 (1987). For an officer’s conduct to be unbecoming a police officer, the conduct need only be such as to offend publicly accepted standards of decency. Borough of Darby v. Coleman, 47 Pa. Cmwlth. 9, 407 A.2d 468 (1979). The Commission does not have to produce evidence that appellant’s conduct brought the department into disrepute. Society does not countenance assaults on police officers and subordinates’ disobeying their supervisors’ commands. It is axiomatic that such behavior brings a police department into disrepute.

Appellant next contends that this court erred for failing to find that the decision of the Commission improperly relied on evidence outside the record. This argument fails.

Appellant submits that the Commission improperly relied on the publicity of the occurrence in the local newspaper, the Reading Eagle, to support his dismissal and those articles were not introduced into evidence. The Commission had sufficient evidence on which to base its decision without any reliance on those articles. Assuming arguendo, that it had relied on those articles, it was an acknowledgment that the public was aware of the altercation as was evident by the public comments of the Borough residents at the hearing. Moreover, appellant had known about the articles and their content because he wanted to introduce into evidence letters to the editor that supported his actions as described in the articles. Appellant did not suffer any prejudice as a result of the Commission’s mere reference to the articles.

Appellant’s third contention is that this court erred for failing to find that the Commission erred as a matter of law by prohibiting appellant from introducing into evidence letters to the editor. This complaint is meritless. The letters to the editor are irrelevant to the issue of appellant’s conduct. The letters were written as responses to the reporting of the incident in the newspaper before any investigation was ever done. The public did not have all the relevant facts to render an unbiased opinion. Some, if not all, of the letters were from people who did not live within the Borough. Furthermore, the letters are not facts or a statement of the law; they are just opinions of lay persons. Therefore, they do not constitute evidence, and the Commission correctly excluded them from consideration.

Appellant’s penultimate assertion is that this court erred for failing to find that the evidence was insufficient as a matter of law in that the Borough failed to disprove appellant’s claim of self-defense. This contention is without merit.

The fact that the witnesses’ testimony was contradictory is not a basis for a finding of a lack of substantial evidence. The Commission, which was the fact finder, was faced with conflicting testimony and credibility determinations which were within its province.

The Commission had ample evidence to find Chief Fabriziani to be more credible than appellant. If appellant were truly afraid for his life, he could have easily exited Chief Fabriziani’s office. Appellant did not have to shut the door and remain in the office. A person in fear of his life would have kept the door open. Chief Fabriziani’s gun was not on his person at the time of the incident. Even appellant admits that he approached Chief Fabriziani who was sitting at his desk. A person who considered someone to be a threat would not voluntarily move closer to the person whom he feared. It was also uncontroverted that it was Chief Fabriziani, not appellant, who shouted for Chief Fabriziani’s secretary. If appellant had acted in self-defense, presumably he would have been the one calling for help. For these reasons, the Commission had sufficient evidence to conclude that appellant was the aggressor in the incident.

Appellant’s last complaint is that this court erred for failing to find that the decision of the Commission was against the weight of the evidence. This contention is without merit. Even assuming arguendo that appellant acted in self-defense, there was sufficient evidence to support a finding of conduct unbecoming a police officer. It was uncontroverted that Chief Fabriziani, appellant’s commanding officer, ordered appellant to sit down, and appellant refused to do so. According to appellant, he was angry because he felt “disrespected” by both Officer Hawn and Chief Fabriziani. Appellant accused Chief Fabriziani of “pandering” to Hawn, thus verbally abusing his supervisor. Verbal abuse alone can constitute conduct unbecoming a police officer.

Appellant submits that “two wrongs make a right.” He thought that Chief Fabriziani and Officer Hawn were wrong. He therefore believed that he had the right to harangue, insult, and physically assault his commanding officer for not agreeing with his perception of the situation. It is immaterial to this issue who held the correct position. What is material is appellant’s conduct. Appellant did not have the right to threaten, insult, or engage in physical violence to advocate his position. A supervising officer has the right to issue commands and make decisions without having to deal with violence or insults from a subordinate officer. Such conduct as appellant displayed is not allowed in any place of employment and is certainly not permitted by police officers who are held to a higher standard of conduct than other citizens. Society does not countenance assaults on police officers by any of its citizens. Such conduct as displayed by appellant could also reflect poorly on the police department, affecting its morale, and tend to destroy public respect and confidence in its operations.

In accordance with the foregoing opinion, this court submits that appellant’s appeal should be denied and this court’s order sustaining the decision of the Commission should be affirmed.