text:
    Rodriguez v. Rylko

      Norman Perlberger, for plaintiff.

      Frederick J. Stellato, for defendant Patrick Rylko, M.D.

      James A. Doherty, Jr., for defendant Allister Williams, M.D.

      Noah E. Katz and Eugene P. Feeney, for defendant Barry Pinkus, M.D.

      Patrick C. Carey, for defendant Abohawariat G. Michael Tesfaye, M.D.

      Michael P. Perry, for defendant Pocono Medical Center.
    September 10, 2013
   WILLIAMSON, J.,

This matter is before the court on the motions for summary judgment of Patricia Rylko, M.D. and Pocono Medical Center (PMC). The matter arises out of an alleged medical malpractice incident involving treatment of Gilbert Rodriguez, who is deceased. Patricia Rylko, M.D. was alleged to be a treating physician of Mr. Rodriguez. None of the co-defendants raised a cross-claim against Dr. Rylko, and at argument, plaintiff’s counsel agreed to the dismissal of Dr. Rylko as a party to this matter. Accordingly, we will enter an order dismissing Patricia Rylko, M.D. from this matter.

The remaining issue involves PMC’s motion for partial summary judgment alleging that there are no facts to support a claim for direct liability against it in the treatment of Mr. Rodriguez. Defendant PMC’s motion does not address plaintiff’s claim of agency/vicarious liability.

PMC argues that plaintiff has not provided expert opinions that support direct negligence claim against PMC. As such, PMC contends the plaintiff cannot recover as a matter of law on a theory of direct liability against PMC. Defendant PMC makes this assertion by referencing that neither of plaintiff’s expert reports are critical of the care rendered to plaintiff by PMC or PMC staff while at the hospital. PMC also argued the treating physician at PMC at the time of plaintiff’s discharge was not an employee of PMC; rather he was an independent contractor (Dr. Allister Williams). PMC asserts the only negligence occurring at PMC supported by plaintiff’s expert reports involved the decision to discharge the plaintiff, and since Dr. Williams was not a PMC employee, there was no direct negligence by PMC.

There are two problems with PMC’s arguments. First, other than PMC’s answer to plaintiff’s amended complaint, where PMC denies Dr. Williams was an agent, apparent and/or ostensible agent, servant or employee of Pocono Medical Center, there is no other proof of the matter asserted. PMC did not attach a deposition transcript, discovery response, or affidavit of a representative of PMC or Dr. Williams as to this issue. This court cannot consider the allegations of the pleadings alone to determine that there are no issues of material fact. There is an allegation made in the amended complaint and denial in the answer, but no other facts of record for this court to consider. Therefore, there remains a factual issue.

It may be that Dr. Williams was not a direct employee, but PMC has failed to set forth this information in its motion in a manner in which this court can conclude there is no issue of material fact. Further, clouding this issue, is PMC’s second supplemental brief containing an attachment purporting to be discharge instructions for Mr. Rodriguez. The instructions are on forms baring Pocono Medical Center’s name and address. Under “Physician Follow-up” it directs a call to Mountain Valley Orthopedics.

Further down the form, it instructs the patient to call Dr. Williams if the patient continues to have pain. It is quite possible to infer Dr. Williams was a PMC treating physician and employee, and that the patient was referred to Mountain Valley Orthopedics for out-patient follow-up care. The form does not indicate that Dr. Williams is an employee of Mountain Valley Orthopedics. The form does not identify Dr. Williams as an independent contractor.

PMC also attached a “Courtesy Note” to it’s second supplemental brief. This also appears on a form with Pocono Medical Center’s name and address at the top and Dr. William’s name at the bottom under “Patient Identification.” There is nothing on the form to indicate Dr. Williams is not an employee of PMC. Quite simply, the allegations in a brief and in pleadings are not enough to sustain the burden of proof in a motion for summary judgment. Therefore, until there is testimony, or supporting documentation provided to the court that Dr. Williams is not an employee of PMC, there remains a disputed issue of fact.

PMC also asserts that the plaintiff’s expert reports fail to allege any negligent care provided by PMC. PMC argues that the reports are not critical of the care rendered by PMC or PMC staff and thus no material issue of fact. PMC is mistaken. The report of Bradford A. Slutsky, M.D., attached to PMC’s Motion states the following:

“To summarize his perioperative course it appears there has been no documentation of what I would consider the essential postoperative care including vital signs, physical exam, documentation of blood glucoses and assurance that the patient was able to adequately have good oral intake prior to being discharged.”

The report further states: “On reviewing the autopsy report it sounds like he was discharged home with possibly having a bilateral pneumonia and aspiration pneumonitis as well as having congestive heart failure. These are all diagnoses that could have been diagnosed with a good physical exam, documentation of vital signs, chest x-ray, possibly an EKG and laboratory results.”

The report of Dr. Slutsky appears to be critical of the decision to discharge, and of the decision not to perform a good physical exam and other tests while hospitalized. The report makes it clear there were things that could have been diagnosed while Mr. Rodriguez was at PMC. Until facts are set forth as to how the discharge was decided upon, who decided it, and who exactly was responsible for performing a good physical exam and other tests on the plaintiff while hospitalized, this court cannot determine that there are no material facts at issue. Plaintiff has made allegations critical of care by PMC and confirmed by the plaintiff’s expert that some care was deficient. It is up to defendant PMC to produce facts to support this motion that neither PMC nor its employees were the responsible parties. As stated above, PMC has not produced uncontroverted facts as to whether Dr. Williams was an employee or agent. PMC also has not produced facts at this time to show that someone other than PMC employees/ staff were the ones who discharged Mr. Rodriguez too early and/or failed to perform a good physical exam and other tests while hospitalized. These facts may come out at a later time, but they are not clear now. Therefore, defendant PMC’s motion for partial summary judgment will be denied at this time.

ORDER

And now, this 10th day of September, 2013, it is ordered and decreed as follows:

1. Defendant Patricia Rylko’s motion for summary judgment is granted, defendant Patricia Ryllco, M.D. is dismissed as a party to this suit.
2. Defendant Pocono Medical Center’s motion for partial summary judgment is denied.


source: Caselaw Access Project

author: BERNSTEIN, J.,

license: Public Domain

text:
    Parrish v. Wilson

      Alan M. Herman and John Dodig, for plaintiffs. Joseph R. Fowler, for defendants.
    September 11, 2013
   BERNSTEIN, J.,

John A. Parrish and Maria Parrish appeal from the order of this court on July 17, 2013. This case has a long and tortuous history, which in essence surrounds the law firm Zarwin, Baum, DeVito, Kaplan, Schaer & Toddy, P.C.’s attempt to collect their attorney fees for at one time representing Maria Parrish Tungol in this very matter. The law firm’s motion to place the proceeds of the Parrish v. Wilson and Taystee Baking Company settlement into escrow with the prothonotary of the First Judicial District was eventually granted by Judge Quinones on April 28, 2008. Since that time, the amount of $68,000.00 has remained on deposit with the prothonotary. Numerous petitions by the law firm for release of the funds were submitted and repeatedly denied by Judge Quinones, because she had previously ordered an attorney fee petition. The law firm failed to submit any attorney fee petition justifying their request. To date, the law firm has failed to provide any attorney fee petition justifying their fees.

The December 8, 2011 order denying the law firm’s petition to release the funds, was appealed to the Superior Court. By order filed December 5, 2012, a copy of which is attached hereto, the Superior Court per curiam concisely summarized the petition’s tortuous history and dismissed the appeal because the order from which the appeal was taken “merely denied appellant’s request for release of part of the escrow funds, but did not otherwise adjudicate the final disposition of the funds,” and therefore was not a final order.

Subsequent to the order of the Superior Court of December 5, 2013, the law firm filed repeated additional motions. Judge Quinones repeatedly denied these additional motions. Judge Quinones was then appointed to the United States District Court for the Eastern District of Pennsylvania by President Obama on November 27,2012. On June 13, 2013, the United States Senate confirmed Judge Quinones as a Judge of the United States District Court for the Eastern District of Pennsylvania.

Accordingly, the law firm’s May 16, 2013 petition to approve attorney fees and satisfy attorney lien was assigned to Judge Mark I. Bernstein. Since a judge of coordinate jurisdiction should not reconsider the order of a fellow judge of concurrent jurisdiction, this court denied the petition to approve attorney fees and satisfy attorney lien. In that order, this court specifically cited the concurrent jurisdiction rule.

Undeterred, with their attorney fees still remaining in escrow and the order of the Superior Court of the December 5, 2012 barring any appeal of either Judge Quinones’ order denying the request to release funds from the escrow account or Judge Bernstein’s denial of that same petition because neither adjudicated the final disposition of the funds, the law firm filed a motion for reconsideration of this court’s denial of the petition to approve fees and satisfy attorney lien in order to, at a minimum, get a final ruling which at least could be appealable if they were not successful.

Upon realizing that the law firm found itself in a catch twenty-two of a) having a judgment against one of the two plaintiffs, b) having the funds to satisfy that judgment held in escrow, c) the judgment being precisely on account of their work to obtain the settlement which is the source of the funds held in escrow, and d) an inability to appeal what they considered a final order but the Superior Court did not, this court reviewed the entire situation. Upon detailed review, this court concluded that sufficient proof has been adduced to demonstrate that there is in fact an attorney’s lien in the amount of $41,440.83, plus $4.48 per day interest from October 27,2011 through the date of release, upon the funds interpleaded to the prothonotary’s office. This court determined that an order which disposes of all the escrowed money, and is therefore final and appealable, should and could properly be entered in accordance with the December 5, 2012, order of the Superior Court. Accordingly, since the plaintiffs have no valid claim to the attorney’s lien funds for work done on this very case, the funds should be dispersed to the law firm.

Therefore, the $68,000 maintained by the prothonotaiy in escrow should properly be dispersed to the parties in interest including the law firm as per the instant order dated July 17, 2013.

      . Indeed the law firm has a judgment against Ms. Tungol entered on February 5,2007 in the amount of $27,227.55, plus pre-judgment and post-judgment interest at six percent (6%) per annum.

      . Plaintiffs have never filed anything to receive any share of the funds held in escrow.

      . Zane v. Friends Hosp., 836 A.2d 25, 29 (Pa. 2003) (“[J]udges of coordinate jurisdiction should not overrule each other’s decisions.”)


author: GREEN, J.,

text:
    Joan I. Glisson Trust v. The Greater Delaware Valley Savings Bank

      Steven Sugarman, for appellant.

      Nicholas Guar ente, for appellee.
    September 12, 2013
   GREEN, J.,

The appellant, the Greater Delaware Valley Savings bank, d/b/a/ Alliance Bank (herein “Alliance Bank”), has appealed this court’s May 29, 2013, verdict and judgment order in favor of Joan I. Glisson, Trustee of the Joan I. Glisson Trust in the amount of $294,103.06, together with post-judgment interest, and further assessment of counsel fees and costs. The verdict and judgment order was entered following this court’s consideration of the testimony, exhibits and other evidence admitted during the non-jury trial of this civil action on May 3, 2013, and upon review of the proposed findings of fact and conclusions of law received from the parties in support of their various claims and defenses.

FACTUAL HISTORY:

Joan I. Glisson is the grantor, trustee and a beneficiary of the Joan I. Glisson Trust (herein “the Glisson Trust” or “the Trust”). Alliance Bank is a wholly owned subsidiary of Alliance Bancorp, Inc. of Pennsylvania, and is registered to conduct business in Pennsylvania, having a business location at 541 Lawrence Road, Broomall, Marple Township, Delaware County, Pennsylvania, (herein “Alliance Bank”). Kitchin Associates, LLC., is a defunct limited liability company which formerly conducted business at 1400 Chester Pike, Sharon Hill Borough, Delaware County, Pennsylvania, (herein “Kitchin Associates”). Todd R. Kitchin, is an adult individual who was a member and agent of Kitchin Associates, (herein “Todd Kitchin”). Richard R. Kitchin, is an adult individual who was a member and agent of Kitchin Associates, (herein “Richard Kitchin”).

On February 7, 2000, the Glisson Trust, which was created in 1996, was the owner under a deed of commercial real estate known generally as 1400 Chester Pike, Sharon Hill Borough, Delaware County, Pennsylvania. At that time, Joan I. Glisson and her late husband, Maurice J. Glisson, were the corporate treasurer and president respectively of two Pennsylvania business corporations, M & J Roofing Supplies, Inc., and J & M Window Manufacturing.

On February 7, 2000, Joan I. Glisson and Maurice J. Glisson entered into a written business loan agreement with Alliance Bank to obtain $300,000.00 for the use of M & J Roofing Supplies, Inc. The business loan promissory note was secured, in part, by a mortgage upon the 1400 Chester Pike, Sharon Hill Borough premises given to Alliance Bank, by the Glisson Trust. (Plaintiff exh. F-l.)

On June 1, 2001, Kitchin Associates, entered into a written agreement for the sale of real estate with the Glisson Trust, concerning the 1400 Chester Pike, Sharon Hill Borough premises. (Plaintiff exh. M.). On July 3,2001, at the request of the late Maurice Glisson, Alliance Bank agreed to accept an assignment of the Kitchin Associates promissory note and mortgage to the Glisson Trust as substitute collateral for the M & J Roofing Supplies, Inc., business loan, in exchange for Alliance Bank releasing its mortgage upon the 1400 Chester Pike, Sharon Hill Borough premises. On July 5, 2001, Alliance Bank released its mortgage upon the 1400 Chester Pike, Sharon Hill Borough premises, and accepted the assignment of the Kitchin Associates promissory note and mortgage to the Glisson Trust as substitute collateral. (Plaintiff exhs. U and U-l.). On July 11, 2001, the Glisson Trust conveyed the 1400 Chester Pike, Sharon Hill premises to Kitchin Associates for $300,000.00. (Plaintiff exh. V.). On July 11, 2001, the Glisson Trust, by Joan I. Glisson, Trustee, executed the documents required by Alliance Bank including an assignment of the Kitchin Associates to Glisson Trust mortgage, necessary to complete the substitution of collateral.

On July 11, 2001, the Glisson Trust executed the commercial guaranty. (Plaintiff exh. R.). The commercial guaranty is secured by collateral. In part, the commercial guaranty provides as follows: “This Guaranty is secured by Assignment of $300,000.00 Promissory Note and Purchase Money Mortgage from Kitchin Associates, LLC, dated July 11, 2001, and covering the property known as 1400 Chester Pike, Borough of Sharon Hill, Delaware County, Pennsylvania, Parcel No. 41-00-00335-00, and any and all proceeds thereof. Property description attached hereto.” (Plaintiff exh. R, pg. 2.).

On July 11,2001, Alliance Bank secured the commercial guaranty executed by the Glisson Trust by requiring the Glisson Trust to execute the commercial pledge agreement. (Plaintiff exh. S-l.). In part, the commercial pledge agreement provides as follows: “Lender may hold the Collateral until all indebtedness has been paid and satisfied. Thereafter, Lender may deliver the Collateral to Grantor or to any other owner of the Collateral.” (Plaintiff exh. S-l, pg. 2.). The commercial guaranty and the commercial pledge agreement each relate to a loan transaction between Alliance Bank, as lender, and M & J Roofing Supplies, Inc. The loan transaction took place on February 7, 2000, when Joan I. Glisson, who is the grantor, trustee and a beneficiary of the Glisson Trust, and her late husband, Maurice J. Glisson, executed a business loan agreement as officers of M & J Roofing Supplies, Inc., borrowing $300,000.00 from Alliance Bank.

On March 31, 2003, Joan I. Glisson and Maurice J. Glisson paid the M & J Roofing Supplies, Inc. loan balance due Alliance Bank, in full. On April 30, 2003, Maurice J. Glisson died. In error, on May 30, 2003, Alliance Bank through its employees prepared a satisfaction piece for the Kitchin Associates to Glisson Trust mortgage, the above referenced substituted collateral for the Alliance Bank loan to M & J Roofing Supplies, Inc.

On June 2,2003, Alliance Bank marked as satisfied the M & J Roofing Supplies, Inc., loan of February 7, 2000; but, rather than return the Kitchin Associates to Glisson Trust Mortgage — the substituted collateral — to the Trust on June 3,2003, Alliance Bank filed the satisfaction piece prepared in error and mistakenly satisfied the Kitchin Associates mortgage. (Plaintiff exhs. AA, BB and CC.).

On March 3, 2005, and without the knowledge of the Glisson Trust, Kitchin Associates sold the 1400 Chester Pike, Sharon Hill premises to CLAM Enterprises, LLC, for $402,000.00. At closing on the sale of the premises, Kitchin Associates, Richard R. Kitchin and Todd R. Kitchin kept the net proceeds of the sale including the balance then outstanding on the Kitchin Associates July 11,2001, loan to the Glisson Trust.

On or about September 8, 2008, Kitchin Associates, Richard R. Kitchin and Todd R. Kitchin ceased payment to the Glisson Trust on the Kitchin Associates promissory note of July 11,2001, and the Glisson Trust discovered the Kitchins’ wrong doing. On or about September 8, 2008, the Trust discovered the outstanding principal balance of $201,287.73 on the Kitchin Associates promissory note of July 11,2001, was uncollectable because Alliance Bank’s mistaken satisfaction of the Kitchin Associates Mortgage destroyed the security interest the Glisson Trust would have had in the 1400 Chester Pike, Sharon Hill Borough premises. Following their default, Kitchin Associates, Richard R. Kitchin and Todd R. Kitchin pursued bankruptcy protection. The Glisson Trust recovered $51,500.00 of its loss in the Todd R. Kitchin bankruptcy proceeding.

The Glisson Trust has never been revoked, and Joan I. Glisson who is the grantor of this Trust remains the trustee and beneficiary of the Trust. In her management of the Glisson Trust as trustee, Joan I. Glisson has acted consistently with the advice of estate legal counsel. (Plaintiff exh. TT.). The commercial pledge agreement was signed on behalf of the Glisson Trust in favor of Alliance Bank. (Plaintiff exh. S-l.). The commercial pledge agreement directs the Glisson Trust to deliver the pledged collateral to Alliance Bank, and the pledge agreement directs Alliance Bank to return the pledged collateral to the Glisson Trust once the M & J Roofing Supplies, Inc., business loan promissory note of February 7, 2000, is paid in full. (Plaintiff exh. S-l.).

CLAIMS AND DEFENSES:

At trial, the Glisson Trust asserted that Alliance Bank failed to adequately protect the collateral it delivered to the bank and failed to return the collateral to the Trust in breach of the commercial pledge agreement. The Glisson Trust also alleged that Alliance Bank was negligent and the negligent conduct of Alliance Bank was a factual cause resulting in the damages sustained by the plaintiff

Alliance Bank asserted the following defenses: (1) that the Glisson Trust lacked standing to bring a civil claim against the bank, (2) that Pennsylvania law obligated Alliance Bank to satisfy the Kitchin Associates purchase money mortgage — the collateral, (3) that the applicable statutes of limitations bar both the Trust’s contract and negligence claims, and (4) that the damages claimed by the Glisson Trust were grossly inflated, in that:

(a) the Trust failed to mitigate its damages;
(b) the Trust improperly includes its attorney’s fees as an item of damages;
(c) the Trust failed to credit its bankruptcy court recovery against principal before calculating prejudgment interest; and,
(d) the Trust improperly calculated pre-judgment interest at 8%.
A. Breach of Contract

To successfully maintain a cause of action for breach of contract the plaintiff must establish: (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract, and (3) resultant damages. Hart v. Arnold, 884 A.2d 316, 332 (Pa. Super. Ct. 2005). A breach must have been a material breach of the contract. In determining whether a failure to render or to offer performance is material, the following circumstances are significant: (a) the extent to which the injured party will be deprived of the benefit which he or she reasonably expected; (b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he or she will be deprived; (c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; (d) the likelihood that the party failing to perform or offer to perform will cure his or her failure, taking account of all the circumstances including any reasonable assurances; (e) the extent to which the behavior of the party failing to perform or offer to perform comports with standards of good faith and fair dealing. Oak Ridge Constr. Co. v. Tolley, 504 A. 2d 1343, 1348 (Pa. Super. Ct. 1985) citing Restatement (Second) of Contracts §241 (1981).

On May 3, 2013, Kathleen Lynch, an employee of Alliance Bank testified during the trial of this civil action. Through her testimony, Kathleen Lynch demonstrated specific knowledge of the applicable Alliance Bank procedures and protocols for the safe keeping and management of pledged collateral. (N.T., 05/03/13, pp. 74-124). Ms. Lynch identified the various Alliance Bank officers and employees who participated in the various dealings and transactions between Alliance Bank and the Glisson Trust. (N.T., 05/03/13, p. 76). Kathleen Lynch admitted Alliance Bank made a mistake when, following the payment in full of the M & J Roofing Supplies, Inc., business loan promissory note of February 7, 2000, an employee of Alliance Bank satisfied the Kitchin Associates mortgage rather than returning the Kitchin Associates mortgage to the Glisson Trust as required by the terms of the commercial pledge agreement. (N.T., 05/03/13, p.p. 84,102). The mistaken or negligent conduct of the Alliance Bank employee rendered valueless the incorporeal property delivered to Alliance Bank by the Glisson Trust. (N.T., 05/03/13, pp. 93-94). This court found the testimony offered at trial by witness, Kathleen Lynch, to be credible.

This court ultimately determined that the Glisson Trust proved by a preponderance of the evidence as follows:

(a) The Glisson Trust delivered the pledged collateral — the Kitchins’ purchase money mortgage — to Alliance Bank;
(b) M & J Roofing Supplies, Inc., paid in full the indebtedness due Alliance Bank under the terms of the commercial loan agreement;
(c) As a guarantor of that Alliance Bank loan, Glisson Trust had completed its performance under the express terms of the commercial guaranty and the commercial pledge agreement (Plaintiff exhs. R and S-l);
(d) Glisson Trust, as the owner of the pledged collateral, was entitled to the return of the collateral on or about June 2, 2003;
(e) Alliance Bank failed to exercise or use reasonable care in the preservation of the collateral when its employee mistakenly or carelessly caused the collateral — the Kitchins’ purchase money mortgage — to be marked satisfied rather than delivering that collateral back to the Glisson Trust through an appropriate reassignment of that purchase money mortgage; and,
(f)As the injured party, the Glisson Trust was deprived of its security interest in the 1400 Chester Pike, Sharon Hill Borough premises exposing plaintiff to a significant financial loss.

The Glisson Trust proved a material breach of contract by Alliance Bank within the meaning of Restatement (Second) of Contracts §241 (1981). The commercial guaranty and the commercial pledge agreement between plaintiff Glisson Trust and defendant Alliance Bank created a bailment by express contract. “Bailment” is defined as a delivery of personalty for the accomplishment of some purpose upon contract, express or implied. After that purpose has been fulfilled, the personal property shall be delivered to its owner, otherwise handled according to its owner’s directions, or kept until reclaimed by the owner. When a bailment is for a mutual benefit of the bailor, here the Glisson Trust, and bailee, here Alliance Bank, the bailee must use ordinary diligence and is liable for ordinary negligence. Prince v. Brown, 680 A.2d 1149 (Pa. 1996). In the instant case, the commercial pledge agreement imposed a duty to “use ordinary reasonable care” upon Alliance Bank, as Lender, in its maintenance of the collateral. (Plaintiff Exh. S-l pg. 2.) On termination of a bailment, the bailor, here Glisson Trust, is entitled to the return of the identical thing bailed. Schell v. Miller North Broad Storage Co. 16 A.2d 680 (Pa. Super. Ct. 1940). Here, the Glisson Trust, the bailor, did not receive from Alliance Bank, the bailee, a return of the Kitchins’ purchase money mortgage, the thing bailed, in breach of the collateral pledge agreement and in breach of long standing law in the Commonwealth of Pennsylvania concerning the bailment of corporeal or incorporeal personal property. When a bailee fails to act as required in the contract of bailment and the result is a loss of the subject of the bailment, that bailee is liable to the bailor of the property. Leprino Foods Co. v. Gress Poultry, Inc. 379 F. Supp. 2d 659 (M.D. Pa. 2005).

This court found that the Trust sustained the following damages as a direct and foreseeable result of Alliance Bank’s breach:

(a) The principal balance on the Kitchins’ promissory note as of September 8,2008, totaled $201,287.73;
(b) The principal balance was reduced by the payment received through the Trust’s effort to mitigate damages from the Todd R. Kitchin Bankruptcy Estate on or about May 25, 2011, in the sum of $51,500.00;
(c) The Trust’s damages included counsel fees expended as a cost of mitigating damages through the Bankruptcy Court in the sum of $15,000.00;
(d) The Trust was entitled to pre-judgment interest at six (6%) percent from September 8, 2008, to May 24, 2011, on the principal sum of $201,287.73, and from May 25, 2011 to the verdict date on the sum then due on May 24, 2011, less $36,500.00; and
(e) The Trust was entitled to post-judgment interest at six (6%) percent.

B. Negligence Claim

The Glisson Trust asserted that Alliance Bank was negligent in its maintenance and care of the collateral, which caused plaintiff to suffer the damages described above. “Negligence” has been described as the absence of ordinary care a reasonably prudent person would use in the circumstances presented. Negligence may consist of an act or a failure to act when there is a duty to do so. Martin v. Evans, 711 A. 2d 458 (Pa. 1998). To prove negligence, the Glisson Trust must prove: (a) Alliance Bank failed to exercise ordinary care in preserving the Kitchins’ purchase money mortgage; (b) the satisfaction of the Kitchins’ purchase money mortgage was a factual cause in bringing about the damages sustained by plaintiff; and (c) the extent of the damages sustained by the plaintiff. Gorman v. Costello, 929 A.2d 1208 (Pa. Super. 2007).

The Glisson Trust has proved the conduct of Alliance Bank in mistakenly or carelessly satisfying the Kitchins’ purchase money mortgage in June 2003, is negligence, and the Trust further proved this negligent act resulted in the destruction of the collateral and the damages sustained by Glisson Trust described at length above. The Glisson Trust also proved it did not recognize the negligence or the damages it sustained until September 8, 2008, when the Kitchins’ defaulted on the promissory note.

C. Standing

The bank’s assertion of standing as a defense is without merit. The Glisson Trust is in privity of contract with Alliance Bank, and that contract — the commercial pledge agreement — created a bailment under the terms of which defendant agreed to exercise care in maintaining the incorporeal property — the Kitchins’ purchase money mortgage — delivered by the Trust as a bailor to Alliance Bank as a bailee. Therefore, the standing defense fails.

D. Obligation to Satisfy the Purchase Money Mortgage

This defense on its face is without merit. The bank’s obligation under the commercial pledge agreement was to reassign the Kitchins’ purchase money mortgage to plaintiff in June 2003. The bank simply failed to do so.

E. Statute of Limitations

Alliance Bank asserts the breach of contract claim raised by the Trust is barred by the four year statute of limitations. 42 P.S. §5525 (7). However, the commercial pledge agreement which is the basis for the contract claim was executed by Alliance Bank and the Trust, and is an agreement made under seal having “the effect of a sealed instrument according to law.” (Plaintiff exh. S-l, pg. 5.) As such, a twenty year statute of limitations applies to plaintiff’s contract claim under 42 P.S. §5529. For this reason, the statute of limitations defense fails as to the breach of contract claim.

The bank asserted the negligence claim raised by plaintiff Glisson Trust is barred by the two year statute of limitation. 42 P.S. §5524 (7). The Glisson Trust argues that, under the circumstances presented in this case, the Trust did not know it had been harmed through the negligent act of Alliance Bank, and for this reason, the discovery rule applies tolling the statute of limitations. The trust claims the damages it sustained were concealed for nearly six and one-half years from June 2003 until the Kitchins’ default on the promissory note on September 8,2008.

The Glisson Trust knew the Kitchin Associates purchase money mortgage was satisfied in June 2003. The discovery rule has no application in this case, and the Trust’s negligence action is barred by the two year statute of limitations.

CONCLUSION:

The Glisson Trust proved by a preponderance of the evidence:

(a) The Glisson Trust delivered the pledged collateral — the Kitchins’ purchase money mortgage — to Alliance Bank;
(b) M & J Roofing Supplies, Inc., paid in full the indebtedness due Alliance Bank under the terms of the commercial loan agreement;
(c) As a guarantor of that Alliance Bank loan, Glisson Trust had completed its performance under the express terms of the commercial guaranty and the commercial pledge agreement (Plaintiff exhs. R and S-l);
(d) Glisson Trust, as the owner of the pledged collateral, was entitled to the return of the collateral on or about June 2, 2003;
(e) Alliance Bank failed to exercise or use reasonable care in the preservation of the collateral when its employee mistakenly or carelessly caused the collateral — the Kitchins’ purchase money mortgage — to be marked satisfied rather than delivering that collateral back to the Glisson Trust through an appropriate reassignment of that purchase money mortgage; and,
(f) As the injured party, the Glisson Trust was deprived of its security interest in the 1400 Chester Pike, Sharon Hill Borough premises exposing plaintiff to a significant financial loss.

The commercial guaranty and the commercial pledge agreement between the Glisson Trust and Alliance bank created a bailment by express contract. The Glisson Trust proved a material breach of the contract and is therefore entitled to damages that will compensate the Trust for the financial loss it sustained as a direct and foreseeable result of the bank’s breach. This court appropriately determined that those damages totaled $294,103.06, together with post-judgment interest, and further assessment of counsel fees and costs.

For the aforementioned reasons, the trial court respectfully requests that its decision be affirmed.

      . The Trust filed a petition for approval of costs on or about June 19, 2013. Said petition is stayed pending the instant appeal.

      . An order denying appellant’s post-trial motions was entered on or about June 20, 2013. A praecipe to enter judgment pursuant to court order was not filed until August 15,2013.

      . This court ultimately determined that Kitchin Associates, Richard Kitchin and Todd Kitchin, each acted intentionally and unlawfully in dissipating the proceeds from the sale of the 1400 Chester Pike, Sharon Hill premises.


author: O’DELL-SENECA, P.J.,

text:
    Ondra v. Bardella

      Herbert Terrell, for plaintiffs.

      Blane Black, for defendant.
    September 16, 2013
   O’DELL-SENECA, P.J.,

This matter is before the court on plaintiff’s second emergency motion for injunction. After a full hearing, it is hereby ordered, adjudged, and decreed that same is granted for the reasons stated below.

Plaintiffs are three independent individuals engaged in real estate business. They buy and sell properties at tax sales, and then direct the Washington County Sheriff’s realty department to name a trust as grantee for execution of the sheriff’s deed. Real estate is held by one of plaintiffs’ trusts until such time as it is resold.

Defendant, Deborah Bardella, is the Washington County Recorder of Deeds, an elected position, provided for by the Constitution of the Commonwealth of Pennsylvania, Article 9, Section 4. She is charged with the recording and preservation of records relating to real property situate in Washington County, Pennsylvania. However, Washington County is unique among Pennsylvania counties in that its recorder of deeds has volunteered to also be the Director of the Washington County Department of Revenue and Director of the Washington County Tax Claim Bureau. Defendant asserts that her dual roles compelled her to implement recording policies that also aid tax collection, such as the requirement that an individual trustee must be named when the grantee is a trust.

In approximately April 2012, plaintiffs presented a deed for filing to defendant’s office, which was refused as it failed to name an individual trustee. Plaintiffs filed the instant action in mandamus on November 7,2012. Hence, the issue before this court is whether defendant can refuse to record a deed when presented to the recorder of deeds office with the appropriate fees.

Defendant’s sole argument is that plaintiffs lack the “clear legal right” to relief required for mandamus. Atlantic Richfield Co. v. Della Vecchia, 450 A.2d 792, 794 (Pa. Cmwlth. 1982). She asserts that plaintiffs’ business, modeled around conveyances to and from trusts, has failed to properly create said trusts under Pennsylvania law. Accordingly, defendant believes that plaintiffs’ trusts do not exist, and argues that plaintiffs have no legal right to mandamus absent a valid trust. Her argument lacks merit for the reasons stated below.

Plaintiffs’ right to record a deed is statutory, as the relevant language of 21 P.S. §§351 and 356 provide that deeds are entitled to be recorded. 21 P.S. §351 provides:

All deeds, conveyances, contracts, and other instruments of writing wherein it shall be the intention of the parties executing the same to grant, bargain, sell, and convey any lands, tenements, or hereditaments situate in this Commonwealth, upon being acknowledged by the parties executing the same or proved in the manner provided by the laws of this Commonwealth, shall be recorded in the office for the recording of deeds in the county where such lands, tenements, and hereditaments are situate....(emphasis added).

Moreover, the Commonwealth Court recently held that §§351 and 356 created the “clear legal right” required of a petitioner seeking to record through a mandamus action, and that a recorder’s argument to the contrary “lackfed] merit.” Chesapeake Appalachia, LLC v. Golden, 35 A.3d 1277, 1282 (Pa. Cmwlth. 2012).

Defendant’s challenge to the validity of plaintiffs’ trust is immaterial to the issue of mandamus. The right to record is not contingent on an instrument’s legal sufficiency, and, even if it were, defendant lacks authority to conduct such an analysis. The recorder of deeds ‘“is a ministerial officer charged with recording all documents presented’” to her, and may only refuse to record where the fee is unpaid or the document lacks a proper acknowledgment. Id. at 1281 (quoting Woodward v. Bowers, 630 F.Supp. 1205, 1207 (M.D. Pa. 1986)). In the case sub judice, the acknowledgment is by the Washington County Sheriff, and not the plaintiffs. The recorder of deeds is without discretion to rej ect documents based on their perceived legal deficiency, and “is truly just a ‘custodian’ of documents.” Id. Accordingly, this court enters the following:

ORDER

And now, this 16th day of September, 2013, it is hereby ordered, adjudged, and decreed, that the Hallam Avenue realty from this court’s June 4, 2013, show cause list is removed and that an injunction is issued requiring the Washington County Recorder of Deeds office to record the present and all subsequent sheriff’s deeds issued to plaintiffs.

      . “A ministerial act is defined as ‘one which a public officer is required to perform upon a given state of facts in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning the propriety or impropriety of the act to be performed.’” Council of the City of Philadelphia v. Street, 856 A.2d 893, 896 (Pa. Cmwlth. 2004) (citations omitted).


author: HODGE, J.,

text:
    Fagnilli v. Fagnilli

      Susan M. Papa, for plaintiff.

      Mary J. Fagnilli, pro se defendant.

      Norman J. Barilla, for additional defendant.
    September 18, 2013
   HODGE, J.,

Before the court for disposition is a motion for summary judgment filed on behalf of the additional defendant, Debbie LaScola. Prior to addressing the merits of the pending motion for summary judgment, the court will provide the following summation of the relevant procedural and factual background of this case:

The plaintiff, Walter A. Fagnilli (hereinafter, “husband”), and the defendant, Mary J. Fagnilli (hereinafter, “wife”), are husband and wife. On February 24, 2011, husband initiated the instant action by filing a complaint in divorce. On July 24, 2012, husband filed a motion for joinder, wherein husband requested to add wife’s adult daughter, Debbie LaScola, as an additional defendant to these proceedings. Husband alleged that wife fraudulently obtained a mortgage on the parties’ marital residence to pay the mortgage on LaScola’s personal residence. The court granted husband’s request and joined LaScola as an additional defendant.

On March 12, 2013, husband filed a motion to compel answers to discovery requests against LaScola. The court granted husband’s request, and LaScola was directed to provide husband with responses within seven days. Husband subsequently filed a motion for sanctions because LaScola failed to furnish responses to his discovery requests. On May 16, 2013, LaScola filed a notice of service of answers to plaintiff’s interrogatories. On June 4, 2013, LaScola filed a motion for summary judgment, which was scheduled for argument on July 31, 2013. LaScola’s motion for summary judgment is property before the court for disposition.

LaScola bases her motion for summary judgment on the contention that she is not an indispensible party to the instant action. LaScola further argues that she was not properly served with notice of the underlying complaint, and that any attempt to subsequently serve LaScola is now untimely. Furthermore, LaScola argues that husband has failed to file a pleading against her as an additional defendant, pursuant to Rule 2253(b) of the Pennsylvania Rules of Civil Procedure.

Husband alternatively argues that LaScola was provided notice of the motion for joinder presented on June 24, 2012, and that the pleadings are sufficient to warrant naming LaScola as an additional defendant. Although wife personally appeared before the court at the time of argument, wife offered no position on the instant motion for summary judgment.

Under Pennsylvania law, the standard for summary judgment is set forth by Rule 1035.2 of the Pennsylvania Rules of Civil Procedure. The Rule states:

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

Pa.R.C.P. 1035.2. The moving party bears the burden of proving that no genuine issue of material fact exists. Rush v. Philadelphia Newspapers, Inc., 732 A.2d 648, 650 (Pa. Super. 1999). In determining whether summary judgment is appropriate, the trial court is required to view the record in a 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 in favor of the nonmoving party.” P.J.S. v. Pennsylvania State Ethics Comm ’n, 732 A.2d 174 (Pa. 1999) (citing Kapres v. Heller, 640 A.2d 888 (Pa. 1994)). Summary judgment is proper only when the uncontroverted allegations 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. Potter v. Herman, 762 A.2d 1116, 1117 (Pa. Super. 2000).

To dispose of the pending motion for summary judgment in an efficient manner, the court will first address LaS cola’s challenge to improper and untimely service of process. A party who fails to object to service of process in the form of preliminary objections waives that claim. Cinque v. Asare, 585 A.2d 490, 492 (Pa. Super. 1990); Martin v. Gerner, 481 A.2d 903, 907 (Pa. Super. 1984) (holding that defects in service of process must be raised in preliminary objections). LaScola’s current counsel filed an entry of appearance on May 13, 2013. Three days later, LaScola filed notice of service of answers to plaintiff’s interrogatories. A party can waive service of process by various means and become a party to a suit by filing an appearance. Peterson v. Philadelphia Suburban, 255 A.2d 577 (Pa. 1969). It is untimely and improper for LaScola to object to service of the underlying complaint following an appearance entered on her behalf in addition to answers being filed to [husband’s] interrogatories. Summary judgment is not the proper pleading to raise an objection to the form or timeliness of service. Prime Properties Development Corp. v. Binns, 580 A.2d 405, 500-01 (Pa. Super. 1990) (a request to join third party may be challenged by preliminary objections permitting the joinder); Martin, supra. The court therefore denies LaScola’s motion for summary judgment on the basis of improper service of process.

LaScola next contends that husband failed to file a pleading against her pursuant to Rule 2253(b) of the Pennsylvania Rules of Civil Procedure. Rule 2253 (b) provides that

(b) Any party may object to a motion to join an additional defendant after the period prescribed by subdivision (a) on the ground that the party will be prejudiced by the late joinder. The plaintiff may also object to the late joinder on the ground that the joining party has not shown a reasonable justification for its delay in commencing joinder proceedings.

Pa.R.C.P. 2253(b).

Consistent with the Superior Court of Pennsylvania’s holding in Binns, supra, the court finds that LaScola’s objection pursuant to Rule 2253 (b) should have been raised by preliminary objection. A motion for summaiy judgment asserting prejudice is improper. Furthermore, LaScola raises the issue of prejudice generally without asserting any factual basis for her claim. LaScola’s motion for summary judgment pursuant to Rule 2253(b) is therefore denied.

Lastly, LaScola argues that she is not an indispensible party to the underlying complaint, pursuant to Rules 1920.34 and 2252(a) of the Pennsylvania Rules of Civil Procedure. Rule 1920.34 provides:

At any stage of an action, the court may order the joinder of any additional person who could have joined or been joined in the action and may stay the proceedings in whole or in part until such person has been joined. The action may proceed although such person has not been made a party if jurisdiction over that person cannot be obtained and that person is not an indispensable party to the action.

Pa.R.C.P. 1920.34.

Rule 2252, pertaining to the right to join additional defendants, further provides:

(a) Except as provided by Rule 1706.1, any party may join as an additional defendant any person not a party to the action who may be
(1) solely liable on the underlying cause of action against the joining party, or
(4) liable to or with the joining party on any cause of action arising out of the transaction or occurrence or series of transactions or occurrences upon which the underlying cause of action against the joining party is based.

Pa.R.C.P. 2252(a).

A party is “indispensible” when he or she “has such an interest that a final decree cannot be made without affecting it, or leaving the controversy in such a condition that the final determination may be wholly inconsistent with equity and good conscience.” Van Buskirk v. Van Buskirk, 590 A.2d 4, 7 (Pa. 1991) (citing Hartley v. Langkamp and Elder, 90 A. 402, 403 (Pa. 1914) and Columbia Gas Transmission Corp. v. Diamond Fuel Co., 346 A.2d 788, 789 (Pa. 1975) (“In Pennsylvania, an indispensable party is one whose rights are so directly connected with and affected by litigation that he must be a party of record to protect such rights, and his absence renders any order or decree of court null and void for want of jurisdiction.”)). The Note to Rule 1920.34 contemplates the exact circumstances of the instant case, i.e., “The joinder of persons other than husband and wife may be essential in claims...where persons other than the parties have an interest in property which is the subject matter of a distribution.”

In the instant case, husband establishes that wife fraudulently obtained a mortgage on the parties’ marital residence and provided the funds from the mortgage to LaScola. LaScola used the funds to cure the mortgage on her own residence. LaScola’s residence could therefore be characterized as marital property. See Liciardello v. Liciardello, 570 A.2d 1062 (Pa. Super. 1990) (a court may find that a spouse has beneficial ownership of a property which is titled in the name of a third party, but acquired through marital sources). LaScola’s interest in her residence is inherent thereby rendering her indispensible to these proceedings. LaScola’s motion for summary judgment is therefore denied in its entirety.

Consistent with this opinion, the court will enter the following order of court:

ORDER OF COURT

And now, this 18th day of September, 2013, with this matter being before the court on a motion for summary judgment, filed on behalf of the additional defendant, Debbie LaScola, with the plaintiff, Walter A. Fagnilli, appearing and being represented by Susan M. Papa, Esquire; the defendant, Mary J. Fagnilli, appearing pro se; and with the additional defendant, Debbie LaScola, appearing and being represented by Norman J. Barilla, Esquire, and consistent with the corresponding opinion, the court hereby orders and decrees as follows:

1. Additional defendant’s, Debbie LaScola’s, motion for summary judgment is denied.
2. The prothonotary shall properly serve notice of this order of court and corresponding opinion upon counsel of record for the parties and upon any unrepresented party at their last known address as contained in the court’s file.


author: REICHLEY, J.,

text:
    Mason v. City of Allentown

      Peter K. Janczyk, for plaintiff.

      Thomas M. Caffrey, for defendants.
    September 19, 2013
   REICHLEY, J.,

Defendant city of Allentown has filed a motion for summary judgment seeking summary judgment on the basis that plaintiff’s claim is barred by the Political Subdivision Tort Claims Act. For the reasons set forth herein, defendant’s motion is denied.

Factual and Procedural History

Russell Mason, plaintiff, was riding his bicycle in the area of Sixteenth and Utica Streets in Allentown, Lehigh County, Pennsylvania on August 8, 2010. While riding, the front wheel of plaintiff’s bicycle hit a pothole, which caused plaintiff to be ejected from the bicycle and resulted in personal injuries.

Plaintiff file a complaint on August 2, 2012. In the complaint, he alleged the city of Allentown was negligent because it owns both 16th Street and Utica Street, the pothole constituted a dangerous condition, and defendant had actual or constructive notice of the dangerous condition of the street prior to the accident.

The instant motion for summary Judgment was filed on June 18,2013. In its summary judgment motion, defendant relies on the Political Subdivision Tort Claims Act as a bar to plaintiff’s claim. The parties briefed the issue and argument was held on September 10, 2013.

This opinion follows.

Standard of Review

Before the court is a motion for summary judgment. The standard for summary judgment is well-established.

A court may grant a motion for summary judgment only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Bronson v. Horn, 830 A.2d 1092 (Pa. Cmwlth. 2003), aff’d, 577 Pa. 653, 848 A.2d 917 (2004), cert. denied, 543 U.S. 944, 125 S.Ct. 369, 160 L.Ed.2d 257 (2004). The right to judgment must be clear and free from doubt. Id. In reviewing the granting of a motion for summary judgment, this 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.” Pappas v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001).

Lambert v. Katz, 8 A.3d 409, 413 n.3 (Pa. Cmwth. 2010).

Discussion and Conclusions of Law

The issue before the court is whether plaintiff’s claim is barred by the Political Subdivision Tort Claims Act’s provision for governmental immunity. Under the Act,

(a) Liability Imposed. — A local agency shall be liable for damages on account of an injury to a person or property within the limits set forth in [the Governmental Immunity] subchapter if both of the following conditions are satisfied and the injury occurs as a result of one of the acts set forth in subsection (b):
(1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under [the Governmental Immunity section]...and
(2) The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b). As used in this paragraph, “negligent acts” shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct.

42 Pa.C.S.A. §8542(a).

The Tort Claims Act imposes a shield of governmental immunity against any damages arising from any injury to any person or property caused by an act of a local agency or its employees or agents except within the limited avenues for recovery provided by the statute. Kiley by Kiley v. City of Philadelphia, 645 A.2d 184, 185 (Pa. Cmwth. 1994). A plaintiff seeking to impose liability on a local agency has the burden of establishing two things: (1) a common law or statutory cause of action exists as a result of negligence of the agency or an employee acting within the scope of his employment, and (2) the negligent act falls within one of the eight exceptions specifically enumerated in the Tort Claims Act. City of Philadelphia v. Glim, 613 A.2d 613, 616 (Pa. Cmwth. 1992).

The exception at issue here is the streets exception. Under that section, liability relating to streets as set forth as follows:

[Liability may be imposed for the acts of a local agency or any of its employees relating to a] dangerous condition of streets owned by the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.

Id. §8542(b)(6).

In this case, plaintiff concedes that defendant city of Allentown did not have actual notice based on failure by anyone to report the pothole to the city. However, plaintiff argues defendant had constructive notice of the pothole.

In order to establish constructive notice, a plaintiff must show that the defect existed for such a period of time that it could have been discovered and corrected through the exercise of reasonable care. Murray v. Siegal, 195 A.2d 790, 792 (Pa. 1963). A factfinder may draw reasonable inferences from circumstantial evidence tending to establish constructive notice of a dangerous condition. See Ellis v. City of Pittsburgh, 703 A.2d 593, 595-96 (Pa. Cmwth. 1997).

Here, an affidavit from Mark Shahda, a city of Allentown Streets Department employee for fifteen years, indicated that the Streets Department conducts an inspection of all city streets for purposes of preparing a city-wide resurfacing plan. (Defendant’s exhibit A, at 1.) During that inspection, if a pothole or other problem is observed by the inspector, he must advise the dispatcher from the Streets Department, who in turn prepares a work order. (Id.) Members of the public are also able to notify the Streets Department of any potholes by calling the pothole hotline maintained by the department. (Id.) According to Mr. Shahda, in the three years prior to the accident, there were not any reports of a pothole at 16th and Utica Streets in the city of Allentown. (Id. at 2.)

Plaintiff indicated during his deposition that he saw the pothole only once between the years 2005 and 2010. (Defendant’s exhibit C.) At the time he saw it, it was small. (Id.) Plaintiff acknowledged that he lived only one half block away from the intersection of 16th and Utica Streets. (Id.) Plaintiff submitted an affidavit from Alyssa Gross, an adult individual who has resided continually at 638 North 16th Street, Allentown, Pennsylvania 18102 for the preceding five years. Ms. Gross’ residence is in close proximity to the location of plaintiff’s accident. According to Ms. Gross, the pothole in question has existed for the past five years and was never repaired.

In light of this case’s factual state, the court must deny defendant’s motion for summary judgment. The facts indicate plaintiff rode his bicycle at the intersection of 16th and Utica Streets in the city of Allentown, struck a pothole, and sustained injuries. The pothole has supposedly existed and grown over the preceding five years. There is not any question defendant did not have actual notice of the existence of the pothole. However, what appears to be missing from the factual record developed by the parties is any kind of documentation or proof that defendant could affirmatively indicate the Streets Department inspected the intersection during its annual tour to develop a resurfacing plan. Without any factual record from the department that the intersection was inspected without any report of a pothole, there remains a material factual dispute which compels the court to deny the motion for summary judgment. Whether the annual inspection should have led to the Streets Department inspector discovering the pothole is a question of fact upon which the resolution of this matter hinges.

Conclusion

Because there is a genuine issue of material fact concerning whether defendant city of Allentown can be deemed to have had constructive notice of the pothole at 16th and Utica Streets prior to plaintiff’s accident such that it may be subject to liability, summary judgment is inappropriate at this time and must be denied.

      . Plaintiff asserts the pothole falls under either the “real property” or “streets” exception within 42 Pa.C.S.A. §8542(b). It cannot fall under the real property exception because streets are expressly excluded from coverage in that section. 42 Pa.C.S.A. §8542(b)(3)(iii).


author: MOTTO, P.J.,

text:
    Ruckert v. Wayne Township

      Alan T. Shuckrow and Jordan L. Strassburger, for plaintiffs.

      Ryan C. Long, for defendant Wayne Township.

      Gene G. Dimeo, for defendants Frank and Fanny Ottaviani.
    September 19, 2013
   MOTTO, P.J.,

Before the court for disposition is the plaintiffs’ motion for judgment on the pleadings. The plaintiffs (“Ruckerts”) contend that because of admissions contained in the answer and new matter of the defendants (“Ottavianis”), the court must find as a matter of law that the Ottavianis are engaged in land development as the result of improvements made by them to roadways, therefore entitling the Ruckerts to a court order compelling the Ottavianis to comply with, and the defendant township to enforce, the township’s subdivision and Land Development Ordinance (“SALDO”). If applicable, SALDO would require the Ottavianis to submit plans to the township with respect to their development of such roadways. The complaint seeks to compel the defendant township to enforce its SALDO ordinance by prohibiting the Ottavianis from developing roadways located within the subdivision plan in which both the Ruckerts and the Ottavianis are lot owners without first submitting appropriate plans under the ordinance and securing proper approval from the township. In general, the Ottavianis allege in their answer that the activity attributed to them, the improvement of certain roadways within a subdivision plan over which they enjoy an easement, does not constitute land development and therefore does not implicate SALDO.

The Ruckerts’ complaint brought pursuant to Section 617 of the Municipalities Planning Code (“MPC”), 53 P.S. §10617 to compel defendants’ compliance with SALDO alleges that the Ruckerts and the Ottavianis are both property owners in a residential subdivision in Wayne Township known as the North Ellwood Heights plan. The Ruckerts own lots 256 through 264, 299, 300, 265 and 266 in the plan recorded in Lawrence County plot Book Volume 8, Page 9C. The Ottavianis own Lots 22 through 23, 309 through 312, 313, 314, 316 through 318, and Lots 256 through 262. Renlee Avenue is depicted as a street in the plan and is maintained by the defendant township up to the point of the Ruckerts’ driveway. The last 73 feet of Renlee Avenue east of the Ruckerts’ driveway is a shared private road of the plan and not maintained by the township. Union Street is a plotted unopened road in the plan and has never been maintained or utilized by the township.

The complaint alleges that the Ottavianis’ property in the plan is accessible from a public road, Crestón Avenue, which runs parallel to Renlee Avenue. The public portion of Crestón Avenue ends at the Ottavianis’ private driveway and continues eastward as an unopened road in the plan, not maintained or utilized by the township. The Ruckerts’ property abuts the unopened portion of Crestón Avenue. The Ottavianis also own and are in the process of developing three lots of land located directly to the east of the plan, identified as lots 2, 3 and 4 in the Ottaviani plan no. 2. The Ottaviani plan is residential and accessible from the unopened portions of Renlee, Union and Crestón roadways.

The complaint alleges that beginning in 2002, the Ottavianis began developing the non-public, seventy-three foot eastern end of Renlee Avenue to its intersection with Union Street by clearing brush and small trees; that in May 2002 a two-acre lot was subdivided from the original Ottaviani parcel outside the plan and sold; that in 2004 the Ottavianis continued developing the non-public, eastern end of Renlee Avenue by placing large amounts of bricks, stones and other materials to construct the road; that prior to Ottaviani plan no. 2, the Ottaviani plan no. 1 was adopted in September 2005 and Lot 1 thereof was sold on November 3,2005; and that a one-family residence has been built on that lot by the purchasers.

The complaint further alleges that in 2010, the Ottavianis continued to develop the unopened portions of Union and Crestón roadways by clearing brush and trees from those roadways; that in 2011, the Ottavianis graded Crestón Avenue and added large stones to it to build the roadway. The complaint alleges that the Ottavianis are in violation of numerous sections of SALDO because of their failure to submit plans relative to the development of Renlee, Union and Crestón roadways in violation of §104.3 of SALDO.

The Ruckerts’ motion for judgment on the pleadings is based upon specific admissions made by the Ottavianis in their answer to the complaint, specifically in paragraphs 16,18,19 and 22. The admissions upon which the Ruckerts rely are set forth as follows:

16. ...improved the unopened portion of Renlee Avenue by exercising their easement rights, with all improvements being within the scope of the easement, for ingress and egress of pedestrian and vehicular traffic.
18. ...developed unopened portions of Union Street and Crestón Avenue, as they are entitled, by being owners of an easement and having the right to make such improvements to that easement.
19. ...that Defendants made improvements to the unopened portion of Crestón Avenue, being entitled to do so as easement owners...
22. ...actions in improving the unopened portions of Renlee Avenue, Union Street and Crestón Avenue, consist of mere improvements to existing unopened portion of the roadway to which [they] are entitled to perform...

Both the township and the Ottavianis admit that the Ottavianis have submitted no plans with the township and/or that no plans were approved by the township, both defendants contending that the submission of such plans are not required as the Ottavianis conduct does not implicate SALDO.

The question presented by the Ruckerts’ motion for judgment on the pleadings is whether the Ottavianis’ admissions to making improvements to the roadways as owners of easements in such roadways as lot owners within the subdivision plan implicates SALDO as a matter of law.

The right of the Ottavianis to improve the unopened roadways in the North Ellwood Heights Plan as a lot owner within a plan has been determined by previous litigation. In Ruckert v. Ottaviani, Case No. 10692 of 2006, C.A., Lawrence County, the Ruckerts had sought to enjoin the Ottavianis from improving the unopened portions of Renlee Avenue and Union Street. The Honorable Thomas M. Piccione of this court granted a motion for summaiy judgment in favor of the Ottavianis in an opinion dated April 26, 2010. In that case the court said:

Inthecaseatbar, [Ottavianis] owned property within the North Ellwood Heights Plan and acquired an easement over Renlee Avenue. Therefore, [Ottavianis] cannot be enjoined from exercising their right of easement over Renlee Avenue...
The court finds that Drusedum v. Guernaccini to be more persuasive on the issue presented. In Drusedum, both parties owned property within the plot plan and possessed rights of easement over Forest Avenue, the private road in question. Drusedum, 380 A.2d at 895. The defendants owned property to the north and south of Forest Avenue while the plaintiffs owned property within the plan but not abutting the disputed portion of Forest Avenue. Id. ...the plaintiffs sought an injunction forbidding the defendants from erecting the barrier. Id. The Superior Court reversed the trial court’s denial of injunctive relief, finding that the plaintiffs had a “right of ingress and egress to and from their property over any and all of the roads in the plan and this necessarily involves the right to enter or leave the subdivision over any of its roads”. Id. at 897. The Superior Court reasoned that:
[i]f the [defendants] had the right to barricade Forest Avenue, adjacent property owners had similar rights to barricade the terminal points of every other street in the plan before they were accepted as public streets. That would mean that property owners had no right of ingress or egress from or to points outside the plan. To make such a claim as to answer it. The fact that the property adjoined the plan as a parking lot instead of an adjoining road does not diminish the [plaintiff’s] rights to enter or leave the subdivision by way of forestry.
Id. The Superior Court determined that the defendants could not interfere with the plaintiffs’ “private contractual right to travel in getting to or from their homes within a subdivision” or their “similar right on behalf of any member of the public who desire to move to or from [plaintiffs’] property. Id.
[Ruckerts] argue that, even if [Ottavianis] have a right to access their property outside of the North Ellwood Heights Plan using Renlee Avenue, defendants are not entitled to extend Renlee Avenue. An owner of an easement has the right to make improvements to that easement so long as the improvements are consistent with the use for which the easement was created. Florek v. Com. Dep. of Transp., 493 A.2d 133, 137 Pa. Cmwlth. (1985); Rusciolelli v. Smith, 171 A.2d 802, 807 (Pa. Super. 1961). [Ottavianis] seek to place road materials on an unopened portion of Renlee Avenue that already acts as a road for pedestrians and vehicles. The improvements the defendants desire “are solely for the purpose of rendering their easement usable.” Boro of Phoenixville v. Kovach, 449 A.2d 793, 795 (Pa. Cmwlth. 1982). The court finds that [Ottavianis’] improvements are not inconsistent for the use for which the easement was created.

The Ruckerts concede that the Ottavianis have the right to make improvements upon the roadways in question because of their ownership of an easement in the said roadways, but contend that such improvements constitute development and is governed by SALDO. Section 104.3(a) of the township’s SALDO ordinance provides that “land development” must comply with the regulations contained in the ordinance. The ordinance, at §2.02, defines “improvements” and “land development” as:

Improvements: Those physical additions and changes to the land that may be necessary to produce usable and desirable lots.
Land Development: Any of the following activities:
(1) the improvement of one lot or two or more contiguous lots, tracks or parcels of land for any purpose involving:
(a) a group of two or more residential or nonresidential buildings, whether proposed initially or accumulatively, or a single non-residential building on a lot or lots regardless of the number of occupants or tenure; or,
(2) the division or allocation of land or space, whether initially or accumulatively, between or among two or more existing prospective occupants by means of, or for the purpose of streets, common areas, lease holds, condominiums, building groups, or other features.

The definition of “land development” in the township ordinance mirrors and is identical to the definition of land development in § 1.07 of the Municipalities Planning Code (“MPC”). 53 P.S. §10107(l)(ii).

By improving the unopened portions of Renlee Avenue, Union Street and Crestón Avenue, the Ottavianis admit that they are making improvements to the existing unopened portions of the roadways, and are entitled to make improvements as holders of easements in such roadways. However, the question of whether such improvements constitute “land development” as defined by SALDO is a much broader question. Not every improvement to real estate implicates SALDO.

In Upper South Hampton Township v. Upper South Hampton Township Zoning Hearing Board, 594 Pa. 58, 934 A.2d 1162 (2007), the Supreme Court provided clarification on the application of the definition of “land development” in the MPC stating:

The definition of land development, of course, does not exist in a vacuum. The significance of the definition is in the consequence of a finding that a proposed land use involves development; that consequence is the requirement of a land development plan. The statutory definition of development plan in the MPC plainly speaks of large-scale development and the issues that necessarily arise with such development.

Id. at 67, 934 A.2d at 1168.

Section 10507 of the MPC, which sets forth the effect of a municipality’s SALDO, speaks to development on a large scale:

Where a subdivision and land development ordinance has been enacted by a municipality under the authority of this article, no subdivisions or land development of any lot, tract or parcel of land shall be made, no street, sanitary sewer, storm sewer, water main or other improvements in connection therewith shall be laid out, constructed, opened or dedicated for public use or travel, or for the common use of occupants of buildings abutting thereon, except in accordance with the provisions of such ordinance.

53P.S. §10507. Id. at 67, 934 A.2d at 1168.

In Upper South Hampton Twp., supra, the issue was whether the construction of billboards qualifies as “land development” for purposes of the MPC, 53 P.S. §10107, and the Upper South Hampton Township Subdivision and Land Development Ordinance, Section 202, thereby authorizing a township to require land development approval before the billboards can be erected. The Supreme Court found that the term “land development” does not encompass the construction of billboards and reversed the Commonwealth Court’s ruling.

The Upper South Hampton Township court found that the MPC, when viewed as a whole, clearly is intended to apply the allocation of land in such a way that issues related to public use, water management, sewers, streets and the like must be addressed. Consistently with this focus, the case law typically involves a division of a tract of land into smaller parcels for the construction of either residential or commercial buildings. See Kassouf v. Township of Scott, 584 Pa. 219, 883 A.2d463 (2005)(residential subdivision); Mountain Village v. Bd. Of Supervisors of Longswamp Twp., 582 Pa. 605, 874 A.2d 1 (2005)( 110-unit expansion of mobile home park); Meadows of Hanover Development, Inc. v. Board of Supervisors of South Hanover Twp., 557 Pa. 478, 734 A.2d 854 (1999)(construction of homes and commercial buildings on a 221-acre tract); Shoemaker v. Lehigh Twp., 544 Pa. 304, 676 A.2d216 (1996)(subdivision of property into 65 one-half acre residential lots); Hart v. O’Malley, 544 Pa. 315, 676 A.2d 222 (1996)(increase in number of units in mobile home park); Pocono Green, Inc. v. Board of Supervisors of Kidder Twp., 523 Pa. 601, 568 A.2d 612 (1990)(planned residential development). The court in Upper South Hampton Township found that the construction of a billboard was not the type of large-scale development that required a land development plan. Id. 594 Pa. at 71, 934 A.2d at 1170. The type of division or allocation of land contemplated by the MPC-a housing development, condominiums, or building groups, implicates legitimate government concerns affecting the general public, such as sanitary sewer, water, storm water management, parking areas, driveways, roadways, curbs and sidewalks. The construction of a billboard simply does not give rise to any of these concerns. To read the statute otherwise would be unreasonable. Id.

In Lehigh Asphalt Paving and Construction, Co. v. Board of Supervisors of East Penn Twp., 830 A.2d 1063 (2003), the appellant sought to extend existing mineral rights by expanding its quarry over an undetermined amount of land. The Commonwealth Court found that the land development plans for the quarry expansion came within the definition of “land development” because it contemplated the allocation of land between the existing single-family residential use and the expansion of the quarry use.

In Borough of Moosic v. Zoning Hearing Board of Borough of Moosic, 11 A. 3d 564 (Pa. Cmwlth. 2010) the Commonwealth Court held that the construction of a roof over a patio that was previously approved did not transform the patio, which did not otherwise require the submission and approval of land development plans, into a patio that required such approval. The Commonwealth Court in Moosic relied heavily upon the above-noted provisions of Upper South Hampton which held that it was the large-scale development of land, with an evitable and concomitant effect on the public generally that is contemplated by the MPC as constituting “land development” under § 107(a) and SALDO. In so holding, Moosic rejected the argument that SALDO and MPC require land development approval for any improvement to property no matter how minor wherein the court stated:

Moreover, the borough’s very broad interpretation of the SALDO and MPC as requiring land development approval for any improvement to property, no matter how minor, is inconsistent with the Supreme Court’s decision in Upper South Hampton and this court’s case law. See Tu-Way Towers Co. v. Zoning Hearing Board of the Township of Salisbury, 688 A.2d 744 (Pa. Cmwlth. 1997)(holding that the proposed extension or building of new towers did not constitute subdivision or land development under the MPC); Marshall Township Board of Supervisors v. Marshall Township Zoning Hearing Board, 717A.2d 1 (Pa. Cmwlth. 1998)(holding that construction of a pool was not “land development” or “subdivision” within the MPC); Kirk v. Smay, 28 Pa. Cmwlth. 13, 367 A.2d 760 (1976)(holding that the construction of a single medical office building on the grounds of a completed shopping center did not rise to the level of land development as defined in the MPC).

Here, the record is unclear as to the Ottavianis’ purpose in improving the roadways in question. It cannot be determined upon this record whether the improvement of the roadways is part of a plan involving the division of tracts of land into smaller parcels for the construction of residential or commercial buildings or for the further subdivision of property into residential lots, or otherwise as part of a planned residential development. The complaint makes reference to the Ottavianis owning and being in the process of developing three lots of land located directly to the east of the North Ell wood Heights plan, a residential development, and that this development is accessible from the unopened portions of Renlee, Union and Crestón roadways. However, it cannot be determined upon the state of the record whether the roadways in question are a part of the development plan for that development or whether the improvements to the easements by the Ottavianis would be merely an incidental benefit to an approved subdivision plan that does not rely upon the construction of the roadways in question for approval. Under the SALDO land development definition, in order for SALDO to apply, the improvement of a tract or parcel of land must be for a purpose involving (1) a group of two or more residential and non-residential buildings, or (2) a single non-residential building on a lot or lots regardless of the number of occupants or tenure. Under Upper South Hampton, SALDO and MPC is meant to apply to the large-scale development of land. A trial is necessary to development a full record so that the court can determine whether the Ottavianis are in fact engaged in large-scale land development as contemplated by Upper South Hampton, aside from their interest in making improvements upon the unopened streets in which they hold an easement. Therefore, plaintiffs’ motion for judgment on pleadings must be denied.

ORDER OF COURT

And now, this 19th day of September, 2013, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered and decreed that the plaintiffs’ motion for judgment on the pleadings is denied.


author: TUNNELL, J.,

text:
    CitiMortgage, Inc. v. Smiler

      Sean P Mays, for plaintiff.

      Cheri Robinson, for defendants.
    September 23, 2013
   TUNNELL, J.,

FINDINGS OF FACT

1. On October 12, 2004, defendants Jeremy K. Smiler and Amy R. Hansen borrowed $147,900 from Trident Mortgage Company, LP (“Trident”). That day, they executed a note promising to repay the loan in the original principle amount, payable in monthly installments, at an interest rate of 5.875% (“note”). (Exhibit P-3).

2. Defendants secured the note with a mortgage on property located at 10 Hillcrest Lane, Coatesville, PA 19320 (“mortgage”). The mortgage was recorded on October 15, 2004 in the Recorder of Deeds Office in Chester County in Book 6308, page 1599. (Exhibit P-1).

3. Defendants are the record owners of the mortgaged property.

4. Plaintiff CitiMortgage, Inc. (“Citi”) is mortgagee by assignment pursuant to an assignment of mortgage entered into with Trident and recorded on July 13,2011 in the Recorder of Deeds Office in Chester County in book 8209, page 1832 (“assignment”). (Exhibit P-2).

5. Defendants failed to make their September 1, 2010 mortgage payment or any payments thereafter. (Exhibits P-4, 5).

6. On April 20,2011, each defendant was sent the notice required by 35 P.S. §1680.403c (“Act 91 Notice”). The Act 91 Notice explained to defendants that their mortgage was in default, the nature of the foreclosure proceedings and how to take action to avoid foreclosure. (Exhibit P-6).

7. Nonetheless, defendants failed to make any payments that were due and owing.

8. On January 25, 2012, Citi filed the present action to foreclose on the mortgage.

DISCUSSION

A bench trial in this mortgage foreclosure action was held on July 12, 2013. At trial, plaintiff introduced requisite and sufficient evidence of its claim. It did so through Citi employee, Michael Windsor, who was competent to testify about the documents central to this case. Mr. Windsor, employed with Citi since 2008, testified that he is responsible for a portfolio of default loans and he reviewed and researched the subject loan and its supporting documents. Mr. Winsdor testified to reviewing the transaction history, loan documents and payoff statement for the subject loan. He also reviewed the assignment between Trident and Citi. Mr. Windsor testified that Citi’s loan transaction history (Exhibit P-5), which contemporaneously records defendants’ monthly payments of $874.88, showed defendants’ last made a required payment on August 1,2010. Mr. Windsor testified in detail regarding the total amount due by defendants as of the trial date. The amount totaled $178,469.60. Citi further demonstrated through Mr. Windsor that it made the proper demand and sent the requisite Act 91 Notice to defendants. Plaintiff proved the validity of the mortgage and note, the properly executed and recorded assignment, ownership of the property and ultimately, the default giving plaintiff the right to proceed as it has in this matter.

Defendants offered no defense to plaintiff’s claim of default. Rather, defendants suggested in argument at trial that plaintiff was not the true owner of the loan and that plaintiff’s Act 91 Notice was insufficient having been sent by Citi prior to the filing of the assignment. The court finds both of these arguments meritless.

In Pennsylvania, all actions shall be prosecuted by and in the name of the real party in interest. Pa.R.C.P. No. 2002. A real party in interest in any given contract is the person who can discharge the duties created and control an action to enforce rights. McIntyre Square Assocs. v. Evans, 827 A.2d 446, 455 (Pa. Super. Ct. 2003). In the event of default on the obligation underlying a mortgage, the holder of the mortgage may file an action of mortgage foreclosure pursuant to Pa.R.C.P. Nos. 1141-1150. Plaintiff demonstrated that it was the legal owner of the mortgage by assignment and the proper party to enforce the obligations under the mortgage. See JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258 (Pa. Super. Ct. 2013) (holding Pennsylvania Uniform Commercial Code governs a note evidencing debt secured by a mortgage and finding such note to be a “negotiable instrument”); see also U.S. Bank N.A. Mallory, 982 A.2d 986, 993-994 (Pa. Super. Ct. 2009)(holding Pennsylvania law “does not require [sic] mortgage assignee to execute and record an assignment of mortgage prior to filing its mortgage foreclosure complaint”). Plaintiff averred in its complaint that it was the mortgagee by assignment and attached the recorded assignment to the complaint. Mr. Windsor testified to the validity of the assignment at trial. This assignment could not have been a surprise to defendants because from the time defendants executed their mortgage, they were on notice of the fact that the original mortgagee (Trident) had the right to assign its interest in the mortgage to another party, such as Citi, and knowingly negotiated that right as a term of the mortgage. (Exhibit P-1, ¶20.) Defendants failed to offer any evidence of any defect in or invalidity of the assignment.

Contrary to defendants’ suggestion at closing argument, execution and recording of the assignment after the issuance of legal notice to defendants did not invalidate the notice. The Homeowner’s Emergency Mortgage Assistance Loan Program (Act 91) outlines specific notice requirements for mortgagees seeking to foreclose on mortgages in the Commonwealth of Pennsylvania. 35 P.S. §1680.403c. The purpose of this notice is “to inform the mortgagor of a different means of satisfying his/her obligation under a mortgage in order to avoid foreclosure.” Bank of New York Mellon v. Hall, 10 Pa. D. & C. 5th 240, 243 (Centre Cnty. Ct. Com. PL 2010). Defendants did not deny that they received an Act 91 notice from Citi advising them of their default and the remedies they had to avoid foreclosure. In fact, defendants’ motion to dismiss filed at the outset of this case acknowledged receipt of such notice and included defendants’ copy for the court’s review. The question then is whether Citi had the authority to issue the Act 91 notice. The court finds that it did have such authority.

First, as discussed supra, Citi, as the present lender and mortgagee by assignment, had the authority to issue the Act 91 Notice. Second, even though the assignment had not yet been filed of record, both the mortgage executed by defendants and the notice provisions of Act 91 contemplate that an Act 91 Notice could be sent by others designated by the mortgagee, for example, a loan servicer such as Citi. See exhibit P-1, p. 12, GMAC Mortgage, LLC v. Smith, 2012 Phila. Ct. Com. Pl. LEXIS 278 (Ct. Com. Pl. Phila. 2012)(noting Act 91 specifically references actions to be taken by the ‘mortgagee or other person’). Defendants’Act 91 Notice stated that “CitiMortgage, Inc. is providing this notice as lender or servicing agent for the lender.” (Exhibit P-7, p 2). The Act 91 Notice then went on to specifically list Citi as the current lender. (Exhibit P-7, p.5). Defendants never disputed either of these facts and received all relevant documentation to advise them of their rights under Act 91. Therefore, the court finds that Citi complied with the express notice requirements of Act 91 as relevant to this complaint in mortgage foreclosure.

CONCLUSIONS OF LAW

1. Plaintiff is the owner of the mortgage secured by 10 Hillcrest Lane.

2. Defendants are record owners of the mortgaged property.

3. Defendants defaulted on the mortgage by failing to make payments when due and owing.

4. Plaintiffs complied with the requirements of Act 91.

5. As a result of defendants’ default, plaintiff is entitled to the amount due of $178,469.60, plus interest from July 12, 2013.

ORDER

And now, this 23 day of September, 2013, following trial by the court sitting without a jury on July 12, 2013, the court finds in favor of the plaintiff CitiMortgage, Inc. and against the defendants Jeremy A. Smiler and Amy R. Hansen in the amount of $178,469.60, plus interest from July 12, 2013.

      . On August 28, 2012, The Honorable Thomas G. Gavin, before whom the case was then pending, entered an order sustaining plaintiff’s preliminary objections to defendants’ “First Separate Defense”, “Affirmative Defenses” and “New Matter.” Although granted leave to amend their pleadings within twenty days (20) of the date of the order, defendants failed to do so.

      . The court invited both parties to submit post-trial briefs on any relevant legal issues. Defendants did not submit any post-trial brief.


author: ZULICK, J.,

text:
    Rivera v. Pleasant Valley School District

      Brian J. Walsh, for plaintiffs.

      James J. Dodd-o, for defendant.
    September 23, 2013
   ZULICK, J.,

This lawsuit arises out of an injury allegedly suffered by the minor plaintiff, Kimberly Rivera (Kimberly) on May 24, 2007. The complaint alleges that Kimberly was a 6th grade student at Pleasant Valley Intermediate School. During recess, Kimberly slid down a “fireman’s pole” that was part of a jungle gym unit on the playground. When she landed, she fractured her ankle. She eventually needed two surgeries for repair of the ankle. On May 21,2008, Paul and Darlene Rivera (Riveras) filed suit against Pleasant Valley School District (PVSD), individually and as their daughter’s guardians. The Riveras allege that the layer of wood chips (which serve as a padding) beneath the fireman’s pole was not deep enough, and that this insufficiency caused Kimberly’s injury.

After the completion of discovery, PVSD filed a motion for summary judgment, alleging that: (1) plaintiffs’ claims were barred, as PVSD had immunity under the Political Subdivision Tort Claims Act (PSTCA), 42 Pa.C.S. § 8541, et seq., and (2) plaintiffs’ claim for non-economic damages was barred as plaintiffs failed meet the requirements for such damages under the PSTCA. The Riveras filed a brief in opposition to PVSD’s motion, which was argued before the court on July 1, 2013.

DISCUSSION

“Summary judgment is only appropriate in cases where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Gleason v. Borough of Moosic, 609 Pa. 353, 361 (2011). A material fact is one that directly affects the outcome of the case. Bartlett v. BradfordPubl’g, Inc., 885 A.2d 562, 568 (Pa. Super. 2008). A court must view the evidence in the light most favorable to the nonmoving party, and all doubts as to a genuine issue of material fact must be resolved against the moving party. Gleason, 609 Pa. at 361 (citing Fine v. Checcio, 582 Pa. 253 (2005)). When the moving party satisfies its initial burden, the nonmoving party may not simply rest upon the allegations or denials contained in the pleadings, instead the nonmoving party must show there is a genuine issue for trial. Preferred Fire Prot., Inc. v. Joseph Davis, Inc., 984 A.2d 20, 24 (Pa. Super. 2008). A nonmoving party’s failure to adduce sufficient evidences on an issue essential to the case establishes that no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. Ario v. Ingram Micro, Inc, 965 A.2d 1194,1207 n. 15 (Pa. 2009).

The Riveras allege that PVSD was negligent in its care, custody or control of its real property. They contend that the wood chips below the fireman’s pole weren’t deep enough. PVSD asserts that the Riveras’ action should be dismissed, as PVSD has immunity under the PSTCA.

The PSTCA generally provides that “no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.” 42 Pa.C.S. § 8541. However, the PSTCA provides several exceptions:

(a) Liability imposed. —A local agency shall be liable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of the following conditions are satisfied and the injuiy occurs as a result of one of the acts set forth in subsection (b):
(1) The damages would be recoverable under common law or a statute creating a cause of action if the injuiy were caused by a person not having available a defense under section 8541 (relating to governmental immunity generally) or section 8546 (relating to defense of official immunity); and
(2) The injury was caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b). As used in this paragraph, “negligent acts” shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct.
(b) Acts which may impose liability. — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:
...(3) Real property. — The care, custody or control of real property in the possession of the local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency. As used in this paragraph, “real property” shall not include:
(i) trees, traffic signs, lights and other traffic controls, street lights and street lighting systems;
(ii) facilities of steam, sewer, water, gas and electric systems owned by the local agency and located within rights-of-way;
(iii) streets; or
(iv) sidewalks.

42 Pa.C.S. § 8542. The parties here agree that the playground equipment itself was not defective or otherwise the cause of Kimberly’s injury. The dispute is whether the wood chips (or mulch) which served as a protective carpeting for the playground are real or personal property.

It is clear that up until the time the wood chips were spread on the playground, they were the personal property of the PVSD. However, when the wood chips were spread on the playground area, they became real property.

Chattels used in connection with real estate are of three classes: First, those which are manifestly furniture, as distinguished from improvements, and not peculiarly fitted to the property with which they are used; these always remain personalty.... Second, those which are so annexed to the property, that they cannot be removed without material injury to the real estate or to themselves; these are realty.... Third, those which, although physically connected with the real estate, are so affixed as to be removable without destroying or materially injuring the chattels themselves, or the property to which they are annexed; these become part of the realty or remain personalty, depending on the intention of the parties at the time of annexation....

Repko v. Chichester School Dist., 904 A.2d 1036, 1040 (Pa. Cmwlth. 2006) (citing Clayton v. Lienhard, 167 A.2d 321, 322 (Pa. 1933). It is clear that the wood chips are not of the first class, as they are not furniture or some other easily portable thing.

PVSD argues that this is not the case. They argue that “school equipment attached to real property by gravity remains personalty.” Defendant’s Motion for Summary Judgment at 27 (citing Canon-McMillan School Dist. v. Bioni, 561 A.2d 853, 854 (Pa. Cmwlth. 1989)). Canon-McMillan is distinguishable from the present matter. In that case, a student was injured while using an 800 pound wood lathe in shop class. The Commonwealth Court found that the lathe was personalty, and based this decision on the fact that the lathe was movable, and not physically affixed to the floor by anything more than gravity. Id. at 855. Other cases cited by PVSD found immunity using similar logic. See, Rieger v. Altoona Area School Dist., 768 A.2d 912 (Pa. Cmwlth. 2001) (gym mats, which could be freely moved were not part of the real estate of the school.); Blocker v. City of Philadelphia, 763 A.2d 373 (Pa. 2000) (concert bleachers, which could be easily removed, were not fixtures such that similar provision of Tort Claims Act did not waive city’s immunity).

The wood chips in this case most aptly fit in the second category described above. The wood chip mulch is spread throughout the playground. To remove it, material harm would likely have to be done to the property, in that their removal would leave an area of the property blighted. Additionally, in order to totally remove the mulch, it is likely that construction equipment would have to be used (considering the area covered by the mulch, and that over time the mulch will deteriorate and mingle with the soil on the property). Further, removing the mulch would be extremely difficult without changing its character, as any removal would likely result in large amounts of other material (dirt, grass, refuse, etc.) being removed with the woodchips. Therefore, the court finds that the woodchips were part of the real property of PVSD, and as such the exception under 42 Pa.C.S. § 8542(b)(3) applies, negating the PSTCA’s general grant of immunity to PVSD.

It is important to note that even if the mulch was properly classified as the third type of chattel relating to real estate, summary judgment would still not be proper. Were the mulch deemed removable, a question of fact about the owner’s intentions would exist for the jury to decide as to whether or not the school district intended for the mulch to be part of the realty at the time they it was applied. See Canon-McMillan, 561 A.2d at 855. PVSD has adduced no facts which would establish that they intended the woodchips to remain personalty at the time they were applied to the playground. Unlike machinery or mats, the wood chips are placed on a more permanent basis, as part of the care of the property. PVSD’s intent would remain a question of material fact, which is to be decided by the jury. Id.

PVSD contends in the alternative that even if immunity under the PSTCA is inapplicable, the Riveras’ claim for non-economic damages should be barred. The PSTCA provides, in its pertinent part that:

(a) General rule. — Actions for which damages are limited by reference to this subchapter shall be limited as set forth in this section.
(b) Amounts recoverable. — Damages arising from the same cause of action or transaction or occurrence or series of causes of action or transactions or occurrences shall not exceed $500,000 in the aggregate.
(c) Types of losses recognized. — Damages shall be recoverable only for:
(1) Past and future loss of earnings and earning capacity.
(2) Pain and suffering in the following instances:
(i) death; or
(ii) only in cases of permanent loss of a bodily function, permanent disfigurement or permanent dismemberment where the medical and dental expenses referred to in paragraph (3) are in excess of $1,500.

42Pa.C.S. § 8553. PVSD argues that precedential decisions in Pennsylvania bar the Riveras’ claim, as Kimberly only suffered small scarring and has apparently not suffered any permanent loss in the functionality of her leg. It is undisputed here that Kimberly did not suffer a permanent loss of bodily function.

However, the question of whether Kimberly has suffered permanent disfigurement is a question of fact for the jury. See Alexander v. Benson, 812 A.2d 785(Pa. Cmwlth. 2002) (determination of whether or not child had suffered permanent disfigurement when struck by a vehicle owned and operated by school district was strictly within purview of the jury). Kimberly has a visible scar on the leg she injured. While the juiy did not find scarring to constitute permanent disfigurement in Alexander, they could do so here. The law is clear that such determinations are to be made by the jury. Therefore, PVSD’s request for summary judgment as to the Riveras’ claim for non-economic damages based on Kimberly’s alleged permanent disfigurement is denied.

ORDER

And now, this 23rd day of July, 2013, upon consideration of Pleasant Valley School District’s motion for summary judgment, and the briefs and arguments of both parties, it is ordered as follows:

1. Pleasant Valley School District’s motion for summary judgment is granted in part and denied in part.
2. Pleasant Valley School District’s motion for summary judgment as to the issues of immunity and the permanent disfigurement of Kimberly Rivera are denied.
3. Pleasant Valley School District’s motion for summary judgment as to the issue of permanent loss of bodily function suffered by Kimberly Rivera is granted.