author: MESSIAH-JACKSON, J.,

text:
    Schuenemann v. Dreemz, LLC

      Martin G. Rubenslein and Erick R. Chizmas, for plaintiff.

      John R. Evans, William D. Patorick and John M. Clark, for defendants.
    January 28, 2011
   MESSIAH-JACKSON, J.,

I. INTRODUCTION and PROCEDURAL HISTORY

On May 14, 2010, following a week long trial, the jury concluded that Dreemz, LLC, a club in Philadelphia did serve alcohol to 23-year-old Brynne Schuenemann while she was visibly intoxicated in violation of Pennsylvania’s Dram Shop Act, 47 Pa. C.S. §4-493(1).

The plaintiff-estate of Brynne Schuenemann alleged that on Saturday night, November 4, 2006, when Ms. Schuenemann and her friends were at Dreemz, the defendant’s bartenders and servers continued to furnish multiple alcoholic drinks to Ms. Schuenemann while she was increasingly and visibly intoxicated.

In the early hours of November 5, 2006, Ms. Schuenemann drove her automobile at a high rate of speed on Columbus Boulevard in South Philadelphia, and she struck a pole. Ms. Schuenemann was alive when the first responder arrived at the scene, however, she died within five to 15 minutes thereafter. The four other occupants of her motor vehicle were transported to hospitals for treatment of serious injuries.

The defense vigorously contested the claim that it caused any harm to Ms. Schuenemann. Defendant-Dreemz’ consistent position during the pre-trial and trial proceedings was that there was insufficient evidence that plaintiff-decedent was served alcohol while visibly intoxicated. The defense “theme” was that Brynne Schuenemann was a drunk driver who should have taken a taxi cab home that evening. May 14, 2010, N.T. 53, 64-67. The jury was asked to consider her comparative negligence pursuant to 75 Pa. C.S. §3802.

During the trial the jury heard from 14 witnesses addressing issues of liability and damages. On May 14,2010, the jury returned a verdict in favor of the Estate of Brynne Schuenemann as follows: survival action, $1,485,199.00 and wrongful death action, $479,559.00. The total award for compensatory damages was $1,964,758.00. The jury also determined that the plaintiff-decedent was 49 percent comparatively negligent.

Next, following a hearing on plaintiff’s claim for punitive damages, the jury concluded that the conduct of Dreemz, LLC was malicious, wanton, willful or oppressive, or showed reckless indifference to the interests of others. The jury awarded $0 for this claim.

After trial transcripts were received, a post-trial briefing schedule was set by counsel and the court. Oral argument was heard on November 10, 2010.

Defendant-Dreemz seeks a new trial because it disagrees with certain trial court rulings. The plaintiff-estate filed a motion for delay damages. For the reasons which follow, the post-trial motions filed by Dreemz, LLC are denied. The unopposed motion for delay damages filed by the Estate of Brynne Schuenemann is granted.

II. LEGAL DISCUSSION

A. The Jury’s Decision is Fully and Fairly Supported. By The Evidence

The Pennsylvania Dram Shop Act states in pertinent part at 47 Pa. C.S. §4-493(1):

It shall be unlawful -
(1) FURNISHING LIQUOR OR MALT OR BREWED BEVERAGES TO CERTAIN PERSONS.
For any licensee or the board, or any employe, servant or agent of such licensee or of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated, or to any minor: Provided further, that notwithstanding any other provision of law, no cause of action will exist against a licensee or the board or any employe, servant or agent of such licensee or the board for selling, furnishing or giving any liquor or malt or brewed beverages or permitting any liquor or malt or brewed beverages to be sold, furnished or given to any insane person, any habitual drunkard or person of known intemperate habits unless the person sold, furnished or given alcohol is visibly intoxicated or is a minor.

Section 4-493(1) applies to licensee liability for injuries to patrons such as Brynne Schuenemann.

The defendant argues that this statute acts as a “shield” of immunity for clubs such as Dreemz, unless customers exhibit signs of visible intoxication at the time they are served. Defendant’s post-trial memorandum, pages 12-13. The jury considered all of the circumstances of this case and chose to believe the uncontradicted testimony of eyewitness accounts of the events of November 4 and 5, 2006. The shield of immunity was pierced.

In order to sustain its burden of proof, plaintiff-estate had to prove not only that Ms. Schuenemann was served alcohol while she was visibly intoxicated, but also that the intoxication was the proximate cause of her harm, e.g. Holpp v. Fez, 665 A.2d 147 (Pa. Super. 1995); Reilly v. Tiergarten, Inc., 633 A.2d 208 (Pa. Super. 1993). It is well-settled in Pennsylvania that the bartender or server must not provide more alcohol to a patron when the signs of intoxication are visible. Civil liability is based on “... appearances rather than medical diagnosis.” Johnson v. Harris, 615 A.2d 771, 776 (Pa. Super. 1992). See also, Hiles v. Brandywine Club, 662 A.2d 16 (Pa. Super. 1995), without evidence of visible intoxication the bar is not civilly liable pursuant to Section 4-493(1).

1. Brynne Schuenemann Was Served Alcohol By Dreemz While She Was Visibly Intoxicated.

The testimony and evidence from Jasmine Childs and Justin Witt was undisputed. Dreemz personnel would have observed that Brymie was repeatedly and frequently going to the main bar located at the front of the club. May 11, 2010, N.T. 121-124. She ordered and paid for drinks for herself and her friends. The Dreemz staff would have noticed that Ms. Schuenemann was stumbling, had slurred speech and was loud, as she continued to purchase more drinks. May 11, 2010, N.T. 129-130. The bartenders and servers would have seen that Ms. Schuenemann did not order any food and that she was stumbling and bumping into people as she returned again and again to the main bar that evening. May 11, 2010, N.T. 155-157.

If the staff had been monitoring the customers they would have been aware of the commotion when Ms. Schuenemann found a patron’s gold necklace, and then after receiving a reward, she announced, “All drinks are on me.” May 11, 2010, N.T. 125. As the evening progressed, Ms. Schuenemann was observed with glassy eyes and almost falling into the bar, “. . . barely getting there.” Her voice got louder and her manner and behavior became sloppy and sluggish as she continued to purchase alcoholic beverages. May 10, 2010, N.T. 158-160

In addition to direct evidence of visible intoxication while in the club, there was substantial circumstantial evidence that Ms. Schuenemann was served alcohol at a time she was visibly intoxicated. Here, as in Fandozzi v. Kelly Hotel, 711 A.2d 524, 527 (Pa. Super. 1998), Ms. Schuenemann drank alcohol at Dreemz for approximately four hours before she left at the 2:00 a.m. closing time. Her friends saw her in an intoxicated condition immediately after she left Dreemz, while walking to the elevator and going to her car. She was argumentative, stumbling, loud and her speech was slurred. Several witnesses testified that Ms. Schuenemann was driving erratically. One hour later at the time of death, Brynne Schuenemann’s blood alcohol concentration (BAC) was .224. The plaintiff’s expert offered his opinion that such a great amount of alcohol would have caused Ms. Schuenemann to show visible signs and symptoms of intoxication, “ataxic.” See also, Couts v. Ghion, 421 A.2d 1184 (Pa. Super. 1980)(plurality opinion).

The defense by Dreemz was two-fold. First, the defendant insisted that the evidence of visible intoxication was insufficient to go to a jury. See defendants post-trial memorandum, pages 7-8. Second, Dreemz’ position was that it did have training, as well as policies and procedures in place, to appropriately manage intoxicated patrons. Thus, if a patron such as Brynne Schuenemann was visibly intoxicated, Dreemz persomiel knew how to handle the situation. The evidence did not support either defense.

The testimony of Marc Stein, owner and manager of Dreemz, was that there was an employee policy and procedures manual given to Dreemz bartenders (May 11, 2010, N.T. 75); that he reviewed his expectations with newly hired security personnel (N.T. 90-91); that visibly intoxicated patrons are “flagged” by the bartenders, then asked to leave by security if they are unruly. Patrons were permitted to remain at Dreemz if they are not unruly (N.T. 92-94); Mr. Stein stated that if the patron was not unruly but intoxicated, Dreemz policy was to give them a bottle of water to “hydrate their body” and “dilute what they drank” (N.T. 94-96).

This testimony from Marc Stein was given at his deposition in December, 2009. When confronted with this pre-trial evidence, coupled with the inability of the defendant to provide the employee manual, payroll records, personnel records or other business records for the October - November 2006 time frame, plaintiff-estate presented evidence that none of the Dreemz employees had the requisite professional training or licensed certifications to recognize or treat signs and symptoms of visible intoxication. See also May 13, 2010 N.T. 150-153. Ms. Jamie Bodoff, a Dreemz bartender, confirmed that certifications were not required when personnel were hired at Dreemz.

A jury is free to believe all or part or none of the testimony. The record supports this jury’s decision to reject both defenses put forth by Dreemz, LLC. The plaintiff-estate did prove the statutoiy violation of the Dram Shop Act, §4-493(1) by direct and circumstantial evidence.

2. The Violation of the Dram Shop Statute Proximate ly Caused Brynne Schuenemann s Injuries.

Our Pennsylvania Supreme Court has recognized, that “causation is as much a part of negligence actions based upon statutory violations as it is of purely common law actions.” Majors v. Brodhead Hotel, 416 Pa. 265, 271, 205 A.2d 873, 877 (Pa. 1965), and numerous cased cited therein. See also, Mathews v. Konieczny, 515 Pa. 106, 113, 527 A.2d 508, 512 (Pa. 1987); Reilly v. Tiergarten, Inc., 633 A.2d 208 (Pa. Super. 1993). In a case such as this, in order for Dreemz to be found civilly liable, the jury must conclude that the wrongful conduct was a substantial factor in bringing about the plaintiff’s injuries, even though it need not be the only factor.

The trial record reveals that the plaintiff-estate offered ample evidence that the violation of the statute, Section 4-493(1), was the proximate cause of Brynne Schuenemann’s accident and death. Jasmine Childs explained to the jury that while Ms. Schuenemann was driving, she was swerving and taking her eyes off the road. She drove “like someone...intoxicated” . . . “driving . . . crazy. . . recklessly.” May 11, 2010, N.T. 132-133. Another passenger, Justin Witt, testified that the driver was “yelling, screaming”...“speeding in the car... going back and forth . . . slamming the brakes at stop lights.” May 11, 2010, N.T. 162.

Ms. Jamie Kammerer Turn had not remained with the group at Dreemz, but re-joined her friends for a ride home on November 5, 2006. Ms. Turn noticed the difference in Brynne Schuenemann’s behavior as soon as she got into the car. Ms. Schuenemann was “worked up,” “speech was slurred...very aggressive . . . screaming.” May 12, 2010, N.T. 208-219. Ms. Childs was “scared” and put her seat-belt on moments before the car crashed into the pole. May 11,2010, N.T. 134.

The plaintiff-estate presented an expert witness, Dr. John DiGregorio, who provided his opinion that the level of alcohol consumed by Ms. Schuenemann, prevented her from driving safely and was the primary contributing factor to cause her death. May 13, 2010, N.T. 39-40. Dr. Di-Gregorio, with an M.D. in internal medicine and a Ph.D. in pharmacology and toxicology, explained to the jury that a .224 BAC causes individuals to suffer from ataxia. May 13, 2010, N.T. 46-50. He explained the physical and mental signs and symptoms of ataxia: dizziness, impaired speech, impaired mental and motor skills, impaired perception, lack of depth recognition, inability to drive, loss of critical judgment.

Dr. DiGregorio stated that the descriptions of Ms. Schuenemann’s behavior on November 4-5, 2006 were consistent with the range of signs and symptoms of the effects of ataxia. Ms. Schuencmann’s behavior was described as loud and obnoxious, leaning against the bar, unsteady. May 13, 2010, N.T. 53-66, 69. Moreover, as she drank eight or nine beers, her ability to make critical judgments and decisions decreased. She was unable to determine “within herself’ whether or not she could safely drive an automobile. May 13, 2010, N.T. 61-67.

As a medical doctor, this witness also explained to the jury about the physical pain suffered by the driver while she was alive after the accident. Dr. DiGregorio referred to the description provided by Police Officer Sean Collins at May 12, 2010, N.T. 41-46, when he rendered his opinion. May 13, 2010, N.T. 68.

The jury heard vigorous cross-examination by the defense challenging the facts and data upon which Dr. Di-Gregorio based his opinion. May 13, 2010, N.T. 70-110. They had the opportunity to consider that the expert failed to include in his report certain “variables”: metabolism, absorption, postmortem drag redistribution and tolerance. See also, May 14, 2010, N.T. 60-64.

The jury’s decision that the statutory violations caused the injuries and death of Ms. Schuenemann is supported by the evidence.

3. The Record Demonstrates the Profound Emotional and Psychological Loss Suffered by the Parents Caused by the Negligence of Dreemz.

In Rettger v. UPMC Shadyside, 991 A.2d 915 (Pa. Super. 2010), the Superior Court clarified Pennsylvania’s Wrongful Death Act, 42 Pa. C.S. §8301(b), and Pennsylvania Suggested Standard Jury Instructions 6.19(A)(4), and reiterated long standing Pennsylvania case law. That court held that damages in a wrongful death claim include the loss of the decedent’s life and loss to her family. The parents may recover for the value of the decedent’s services, which include loss of companionship, comfort, society, guidance, solace and protection.

Here, as in the Rettger case, this defendant sought to limit and diminish the value of “services” of Brynne Schuenemann to her job history and future career plans. May 10, 2010, N.T. 44-45. The jury heard that although her parents were divorced, the decedent maintained almost daily contact with each parent. She drove to Harrisburg every weekend and went to mass with her mother on Saturdays and then again with her father on Sunday mornings. Ms. Schuenemann assisted each of her parents with household projects and with shopping.

She motivated and encouraged each parent through rehabilitation and recovery following surgeries.

This trial jury heard from Raymond R Schuenemann, Brynne’s father on May 13, 2010, N.X 129-130:

I love her very much and miss her. You know, losing somebody like that is, you never get over it. It’s a constant depression. You have to wake up every day and just do your business to remember all the positive thinking, Deepak Chopra and all the books I used to give her all the time about positive thinking and now I am getting a taste of that myself back again from her.

Kathryn Schuenemann, Brynne’s mother, also described her loss, on May 13, 2010, N.T. 141-142:

She motivated me physically and emotionally because I had the back surgeries and it was really getting me down. She motivated me to attempt to go for my master’s in social work at Temple because she was at Temple. So I applied at Temple, Strawberry Square, got accepted in social work because we had plans to do things together, those outreach programs and stuff. And then when she died, I just — I am just not going.

The record is clear that in this case, as in Rettger,supra, 991 A.2d at 933, the jury recognized the “depth of the anguish suffered” by the decedent’s parents. Here also, the award, while substantial, could not compensate them for the loss of their daughter. This is not a case of “loss of consortium,” as mislabeled by the defendant in all pre-trial and post-trial memoranda and hearings. These damages are controlled by statute and not the common law — the loss of society and comfort.

Although the Superior Court opinion in the Rettger case was rendered two months prior to the trial in this case, and itself relied on long-standing statutory and case law, Dreemz failed to specifically challenge the wrongful death damages in any pre-trial or post-trial motion. Accordingly, this claim is waived. See Rule 227.1; Weir v. Estate of Ciao, 521 Pa. 491, 503, 556 A.2d 819, 825 (Pa. 1989), holding that when the issue relied on in a post-trial brief was “left unstated” in the post-trial motions themselves, it was waived; Carnicelli v. Bartram, 433 A.2d 878, 881 (Pa. Super. 1981), for an issue to be properly before the court, it must have been “specifically assigned” in post-verdict motions; citing Tagnani v. Lew, 493 Pa. 371, 426 A.2d 595 (Pa. 1981).

B. Dreejnz has Failed to Present Sufficient Grounds for a New Trial

Dreemz argues that it is entitled to a new trial. When considering a motion for a new trial, the Superior Court stated in Gunn v. Grossman, M.D., 748 A.2d 135, 139 (Pa. Super. 2000):

A trial court’s decision regarding grant or refusal of a new trial will not be reversed on appeal absent an abuse of discretion or an error of law that controlled the outcome of the case. Spino v. John S. Tilley Ladder Co., 548 Pa 286, 696, A.2d 1169 (1997). In making this determination, we must consider viewing the evidence in the light most favorable to the verdict winner, whether a new trial would produce a different verdict. Robertson v. Atlantic Richfield Petroleum Products Co., 537 A.2d 814 (Pa. Super. 1987). Consequently, if there is any support in the record for the trial court’s decision to deny a new trial, that decision must be affirmed. Johnson v. Hyundai Motor America, 698 A.2d 631 (Pa. Super. 1997)

A trial judge’s ability to upset a jury’s verdict is “very narrowly circumscribed.” Criswell v. King, 575 Pa. 34, 46, 834 A.2d 505, 512 (Pa. 2003). See also, Armbruster v. Horowitz, 572 Pa. 1, 11, 813 A.2d 698, 703 (Pa. 2002), credibility is solely for the juiy and a new trial permitted only when the verdict shocks one’s sense of justice; Martin v. Evans, 551 Pa. 496, 711 A.2d 458 (Pa. 1988), the jury may believe all, part or none of the witnesses’ testimony, Morrison v. Commonwealth of Pennsylvania, 538 Pa. 122, 133, 646 A.2d 565, 571 (Pa. 1994), the trial court must first determine whether mistakes were made during the trial; Johnson v. Hyundai Motors, 698 A.2d 631, 635 (Pa. Super. 1997), a new trial is warranted when there is a palpable abuse of discretion or an error of law which controls the outcome of the case. After considering the circumstances here, a new trial is not appropriate in this case.

Defendant-Dreemz seeks a new trial because it asserts that evidence of negligence was impermissibly presented by the plaintiff-estate. See defendant’s post-trial memorandum, pages 12-14. This contention is meritless.

The failures to secure patron identification, the evidence of conditional licensing, absence of certification, and the presence and/or absence of Dreemz personnel policies were appropriate rebuttal to the Dreemz defense that its personnel were trained. Moreover, the absence of certification and policies were proper evidence to establish causation.

Most significantly, once the threshold set forth in Section 4-493(1) was met by the overwhelming, uncontroverted evidence that plaintiff-decedent was visibly intoxicated, then the negligence cause of action for civil liability was in place. See Rivero v. Timblin, 2010 WL2914400, 12 Pa. D & C 5th 233, Lancaster County, March 10, 2010, citing Hiles v. Brandywine Club, 664 A.2d 16 (Pa. Super. 1995), for the proposition that visible intoxication is the “prerequisite” to establish liability for negligence.

The plaintiff-estate has not alleged that the defendant had a duty to warn its patrons of the effects of intoxication or a duty to prevent intoxicated patrons from driving. Compare, Deminings v. Brown & Lynch American Legion, Court of Common Pleas of Northhampton County, Civil Action No. C0048CV2003001498 (2003). Nor has this plaintiff alleged that Dreemz had a duty to not condone excessive drinking. Compare, Meyers v. Red Lion Cafe, Inc., Court of Common Pleas of Schuylkill County, Civil Action No. S-632-2004. The cases relied on by Dreemz in its reply to plaintiff’s supplemental reply in opposition to defendant Dreemz, LLC’s amended post-trial motions are not persuasive.

The defendant also seeks a new trial because reference was made to .08, the legal limit of BAC by the expert witness and by counsel. May 10, 2010, N.T. 8-14.

In the case at bar, with ample direct and circumstantial evidence that the patron was served alcohol while visibly intoxicated, there was no effort by plaintiff-estate to rely solely on the .08 legal driving limit to meet its burden of proof. Pennsylvania appellate law permits evidence of the BAC combined with other evidence of visible intoxication to be considered by the triers of fact. See Locke v. Claypool, 627 A.2d 801 (Pa. Super. 1993), citing Billows v. Farmers Trust Company, 438 Pa. 514, 266 A.2d 92 (Pa. 1970) holding that when the only evidence relating to intoxication is the BAC, and no evidence describing physical conduct, erratic operation of bicycle, slurred speech or poor appearance, the record was insufficient to prove intoxication. In Ackerman v. Delcomico, 486 A.2d 410 (Pa. Super. 1984), the Superior Court commented about Dram Shop Act cases at 414, “we have permitted evidence of blood alcohol content in civil cases where visible intoxication... is sought to be proved.” The Superior Court there held that BAC was properly admitted because it is relevant circumstantial evidence of intoxication so long as other evidence of the patron’s conduct is presented.

Pennsylvania appellate courts have concluded that expert witnesses may testify about the legal limits of the BAC when evidence of other conduct is also presented. See, Fandozzi v. Kelly Hotel, 711 A.2d 524 (Pa. Super. 1998), expert testimony of BAC combined with circumstantial evidence of conduct can satisfy proof of Dram Shop liability; Conner v. Duffy, 652 A.2d 372 (Pa. Super. 1994), summary judgment was affirmed where expert testimony was sole evidence of possible intoxication; Johnson v. Harris, 615 A.2d 771 (Pa. Super. 1992), without evidence of visible intoxication expert’s affidavit not permitted; Ackerman v. Delcomico, supra, evidence of BAC is proper when admitted with explanatory expert testimony in a civil case.

The cases relied on by Dreemz are distinguishable. Suskey v. Loyal order of Moose Lodge #86, 472 A.2d 663 (Pa. Super. 1984), holds that neither a breathalyzer test result nor the motor vehicle code’s presumption of intoxication may be substituted for a burden of proof in a Dram Shop Act, §4-493(1). In Billows v. Farmer’s Trust Co., supra, the BAC was not admissible as evidence of unfitness to drive in a motor vehicle matter.

Dreemz claims there was insufficient evidence for the jury to find that its actions were malicious or wanton or willful or oppressive or showed reckless indifference to the interest of others. This court concludes that the evidence does support the determination of “reckless indifference.” The defendant, however, has not explained how it was prejudiced under the circumstances present here. See generally, May 14, 2010, N.T. 123-141; post-trial hearing, held November 10, 2010.

C. The Jury’s Decision of Comparative Negligence is Fully and Fairly Supported by the Evidence

The record reveals that Ms. Jamie Kammerer Turn told the jury that when she got into the car with her friends, she was surprised. May 12, 2010, N.T. 215:

...at that time I just remember her [Brynne] getting really worked up...but at that time I was just kind of like, oh my God. What is going on? And I was kind of like getting scared in the car and I think at that time I realized that, you know, that they were all pretty drunk.

The witness stated that Ms. Schuenemann, the driver, was yelling on the cell phone, handing it to Jasmine in the back seat, and screaming while the car was jerking. May 12, 2010, N.T. 217-221. Jasmine Childs and Justin Witt also provided testimony about the cell phone, erratic driving and drunken driving. May 11,2010, N.T. 133,162. Dr. DiGregorio explained the effects of alcohol on the driver’s judgment. May 13, 2010.

With this in mind the jury’s determination that Brynne Schuenemann was driving while distracted and that she was 49 percent causally liable for her own injuries and death is supported by the record. The verdict award totaling $1,964,758 for survival action and wrongful death action is molded to $1,002,026.51.

D. The Plaintiff’s Unopposed Motion for Delay Damages is Granted (Control No. 10052918)

Delay damages in the amount of $17,886.18 are to be added to the molded verdict. Judgment will be entered in favor of plaintiff-estate and against Dreemz, LLC in the amount of $1,019,912.69.

III. CONCLUSION

For all of the reasons set forth above, the amended motion for post-trial relief filed by Dreemz, LLC is denied, and the unopposed motion for delay damages filed by the Estate of Brynne Schuenemann is granted.

On November 4 and 5, 2006, Dreemz, LLC, a club in Philadelphia, served 23-year-old college student Brynne Shuenemann multiple alcoholic beverages while she was visibly intoxicated and in violation of Pennsylvania’s Dram Shop Act, 47 Pa. C.S. §4-493(1). In the early morning hours of November 5, 2006, Ms. Schuenemann died when she drove her car at a high rate of speed into a pole.

On May 14, 2010, following a week-long trial, during which 14 witnesses testified, the jury returned a verdict in favor of the Estate of Brymie Schuenemann in the amount of $1,964,758.00. The jury also determined that the plaintiff-decedent was 49 percent comparatively negligent.

Post-trial memoranda were filed and oral argument heal'd on November 10, 2010. On December 6, 2010, this court filed an order denying the defendant-Dreemz motion for a new trial. See court Exhibit “A,” attached hereto. The defendant filed a timely notice of appeal.

In accordance with Rule 1925(a) of the Pennsylvania rules of appellate procedure, this court respectfully submits to the Superior Court, the memorandum in support of order denying defendant Dreemz, LLC’s motion for a new trial and granting plaintiff’s motion for delay damages, dated December 6, 2010, attached hereto as court Exhibit “B,” as the reasons for the ruling and order.

JUDGMENT ORDER

And now, December 6, 2010, after considering the amended motion of defendant Dreemz, LLC for post-trial relief, and the responses thereto filed by the plaintiff, and after reviewing all of the supplemental memoranda filed by all parties, and oral argument held November 10,2010, and, after considering the unopposed motion for delay damages and molding of verdict filed by the plaintiff, and, for the reasons set forth in the court’s memorandum filed this date, it is hereby ordered that the defendant’s amended motion is denied and the plaintiff’s motion is granted.

Judgment is entered in favor of Raymond F. Schuenemann, III, administrator of the Estate of Brynne A. Schuenemann, deceased in the amount of one million nineteen thousand nine hundred twelve dollars and sixty-nine cents ($1,019,912.69) and against Dreemz, LLC.


source: Caselaw Access Project

author: ZULICK, J.,

license: Public Domain

text:
    U.S. Bank National association v. Davis

      Peter J Quigley, for plaintiff.

      Martha E. Von Rosenstiel, for defendant.

      November 19, 2010
   ZULICK, J.,

This case comes before the court on defendant Bernard Shuemaker’s (“Shuemaker”) request to open a default judgment entered for plaintiff U.S. Bank National Association (“U.S. Bank”). U.S. Bank obtained title to 191A Camelback Road, Tannersville, Pennsylvania (the “property”) following a foreclosure sale by the U.S. Marshal’s office. U.S. Bank commenced this action on February 19, 2010 to eject the occupants of the property who were in possession after the expiration of a lease.

U.S. Bank’s ejectment action was filed against “Bernie Davis or Occupants.” The Monroe County sheriff’s office served an individual identified as “Bernie Davis” at the property on February 24, 2010. After a praecipe to enter judgment was filed, default judgment in ejectment was entered against “Davis Bernie” on August 5, 2010. On August 11,2010 the prothonotary mailed notice of the default judgment to “Davis Bernie.” On August 16, 2010, Shuemaker filed a petition for relief from judgment (“petition”). U.S. Bank filed an answer on September 2, 2010. Shuemaker filed a brief and the matter was argued on November 1, 2010.

DISCUSSION

A petition to open a default judgment should be decided on principles of equity. Seeger v. First Union Nat'l Bank, 836 A.2d 163, 165 (Pa. Super. 2003). To open a default judgment, the court must consider the following: 1) whether the petition to open was timely, 2) whether there is a good reason for delay leading to the default, and 3) whether a meritorious defense has been shown. Schultz v. Erie Ins. Exchange, 505 Pa. 90, 93, 477 A.2d 471, 472 (1984). Each prong of this test must be met. Id. A petitioner who seeks to file an answer is entitled to the benefit of Pa.R.C.P. 237.3. Rule 273.3 supplies the first two requirements by presupposing that a petition is timely and with reasonable explanation or legitimate excuse. Pa.R.C.P.273.3, explanatory note. That rule provides:

Rule 237.3 Relief from judgment of non pros or by default
(a) A petition for relief from a judgment of non pros or of default entered pursuant to Rule 237.1 shall have attached thereto a verified copy of the complaint or answer which the petitioner seeks leave to file.
(b) If the petition is filed within ten days after the entry of the judgment on the docket, the court shall open the judgment if the proposed complaint or answer states a meritorious cause of action or defense. Pa.R.C.P. 273.3.

Here, in compliance with Pa.R.C.P. 237.3(a), Shuemaker has attached a copy of the verified answer he seeks to file. He has also timely filed the petition.

Under Pa.R.C.P. 237.3, the only remaining inquiry is whether Shuemaker presents a meritorious defense. A meritorious defense will be found if there is a defense “pleaded that if proved at trial would justify relief.” State of Considine v. Wachovia Bank, 966 A.2d 1148, 1152 (Pa. Super. 2009) (internal quotations omitted). Shuemaker asserts two defenses he contends are “meritorious” under Pa.R.C.P. 237.3. First, he argues that U.S. Bank named the wrong defendant in its caption. Second, he contends that U.S. Bank is in the process of negotiating sale of the property to him and should be equitably estopped from simultaneously pursuing default judgment.

I. Deficient Caption

Pa.R.C.P. 1018 requires that “[t]he caption of a complaint shall set forth...the names of all the parties....” Shuemaker argues that U.S. Bank’s complaint was deficient pursuant to Pa.R.C.P. 1018 because the name “Bernie Davis” appeared as the defendant in the caption and not Bernard Shuemaker. U.S. Bank counters that Shuemaker “has repeatedly identified himself as Bernie Davis.” U.S. Bank’s answer to Shuemaker’s petition, 1. It argues that it complied with Pa.R.C.P. 1018 by including “or occupants.” and that pursuant to Pa.R.C.P. 410(a)(2), Bernie Davis became a defendant upon being personally served at the property on Februaiy 24, 2010.

Pa. R.C.P. 410(b) provides:

(b)(1) If in an action involving an interest in real property the relief sought is possession or mortgage foreclosure, original process also shall be served upon any person not named as a party who is found in possession of the property. The sheriff shall note the service in the return.
(2) If the relief sought is possession, the person so served shall thereupon become a defendant in the action. Upon praecipe of the plaintiff the prothonotary shall index the name of the person found in possession as a party to the action. Pa.R.C.P. 410(b)(1) and (2)

The sheriff did note on the service return in this case that “Bernie Davis” was served with the complaint in ejectment. U.S. Bank suggests that Bernie Davis and Bernard Shuemaker are one and the same person. Bernard Shuemaker does not admit that he is the “Bernie Davis” the sheriff’s deputy served on August 12, 2010, but his petition does say that he resides on the premises, and he is seeking relief from the judgment against “Bernie Davis.” If Bernard Shuemaker and the “Bernie Davis” who was served are the same person, then U.S.Bank obtained good service on Bernard Shuemaker as an occupant pursuant to Pa.R.C.P. 410(b)(1). If Bernard Shuemaker was not the one served, he would not appear to have standing to object to the default judgment against Bernie Davis.

Equitable Estoppel

Shuemaker asserts that he is presently in the process of negotiating the purchase of the property with U.S. Bank. He requests that the court enjoin the bank from simultaneously pursuing default judgment in ejectment against “Bernie Davis” and negotiating the purchase of the property with Bernard Shuemaker.

The doctrine of equitable estoppel requires two essential elements; inducement and reliance. Novelty Knitting, Inc. v. Siskind, 500 Pa. 432, 457 A.2d 502 (Pa. 1983). “The inducement may be words or conduct and the acts that are induced may be by commission or forbearance provided that a change in condition results causing disadvantage to the one induced.” Id. at 503-4. Shuemaker does not identify these factors or make any effort to satisfy them. He explains with no particularity why U.S. Bank’s representations, infra, specifically caused him to rely on the notion that he would not be ejected from the property.

Here, Shuemaker asserts the following facts as the basis for inducement and reliance:

10. After the sale of this property by the Monroe County sheriff’s office to the U.S. Bank National Association, Bernard Shuemaker, on behalf of his father-in-law, Benjamin Davis, attempted, through the bank’s agent, Dale Kessler, to acquire this property, at all relevant times negotiationg with Dale Kessler.
11. The bank’s agent reflected that as long as they could agree on the price, and Mr. Shuemarker could provide financial guarantees, the bank would be conveying the property to Mr. Shuemaker and his wife.
12. The bank subsequently sent an appraiser to the property, Connie Foland, a licensed appraiser doing business in Monroe County, Pennsylvania.
13. Ms. Foland advised Mr. Shuemaker that he should be negotiating the contract with her on behalf of the bank. Mr. Shuemaker then commenced negotiating with Ms. Foland to acquire the real estate.
14. The bank’s agents, Dale Kessler and Connie Foland, acting as a servant, agent and/or employee of the bank, led Mr. Shuemaker to believe that he would be purchasing the real estate. Shuemaker’s answer, “new matter,” page 2, ¶¶ 10-14. Shuemaker’s brief, page 4, ¶¶10-14.

Neither Shuemaker’s new matter nor his two-sentence argument based on the facts laid out in the new matter make clear how U.S. Bank’s alleged representations caused him to rely that he would not be ejected from the property. He does not allege any binding agreement or conduct on the part of U.S. Bank that would give him any equitable or legal interest in U.S.Bank’s property. Shuemaker has not indicated that negotiations between him and U.S. Bank have moved past the preliminary stages. See Shuemaker’s answer, “New Matter,” page 2, ¶ 13. Shuemaker’s brief, page 4, ¶ 13. However U.S. Bank has not responded to his contention that one agent of the bank is trying to sell him the property while another agent of the bank is trying to have him ejected.

A hearing will be scheduled for two purposes: 1) to determine if U.S. Bank has any interest in selling its property to Bernard Shuemaker. U.S. Bank’s counsel shall come to the hearing with authority to advise the court on what interest, if any, U.S.Bank has in selling the property to Shuemaker. If U.S. Bank does not give counsel authority to answer these questions, counsel is directed to bring an agent of U.S. Bank to the hearing who is authorized. 2) A determination will be made as to whether Bernard Shuemaker was the person the sheriff1’s deputy served with the complaint. Bernard Shuemaker will be directed to be present to testify on this point.

ORDER

And now, November 19, 2010, upon consideration of the parties’ arguments and petitioner’s brief, it is ordered as follows:

A hearing shall be held on the December 22, 2010, at 9:00 o’clock a.m., in Courtroom No. 5, Monroe County Courthouse, Stroudsburg, Pennsylvania to determine a) whether Bernard Shuemaker is the same individual who was served with the complaint in ejectment by the Monroe County Sheriff’s department on August 12, 2010, and whose name was noted by the deputy as “Bemie Davis” on the service return; and, b) what U.S. Bank’s response is to Bernard Shuemaker’s interest in purchasing the property. Counsel shall be authorized to respond to this interest or shall bring an agent for the plaintiff who has such authority at the time of the hearing. Bernard Shuemaker is directed to appear at the hearing to testify on these issues.

      . Pa.R.C.P. 237.3(b) requires filing within ten days after the entry of the judgment on the docket. While Shuemaker filed eleven days after the entry of judgment, the tenth day after judgment fell on Sunday, August 15, 2010. Pa.R.C.P. 106(b) provides, “Whenever the last day of any such period shall fall on Saturday or Sunday, or on any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from the computation.” Because the tenth day after judgment fell on a Sunday, it is omitted from the computation and Monday, August 16,2010 becomes the effective tenth day of the period. I find that Shuemaker’s petition was timely filed.


author: FOX, J.,

text:
    1300 Washington Avenue, L.P. v. City of Philadelphia Bd. of Revision of Taxes

      Dawn M. Tancredi, for plaintiff.

      Joanne R. Strauss. for defendant.
    January 25, 2011
   FOX, J.,

1300 Washington Avenue LP, has appealed this court’s order of December 2, 2010. The basis for this court’s decision is set forth in the opinion that accompanied the order. A copy of that opinion is appended hereto and forwarded to the Pennsylvania Commonwealth Court with the record.

1300 Washington Avenue, LP (appellant) has appealed the decision of the board of revision of taxes (board) in which the assessed value of the premises located at 1300-18 Washington Avenue (property) was increased for the year 2009 from $600,000.00 to $750,000.00 assessed value; with a market value of $192,000.00 increased to $240,000.00.

FACTUAL and PROCEDURAL PIISTORY

The property is located at 1300-18 Washington Avenue with an account number 88-2-002900. The improvements on the property consist of a one-story masonry structure with a retail grocery, Sav-A-Lot, as the tenant. There is off-street parking surrounding the structure.

At the hearing in this matter the board offered into evidence the certified record card from the board, the deed from appellant’s purchase of the property and other documents. The assessor, Sharon Swain, testified on behalf of the board that appellant purchased the property on October 3, 2008 for $2,200,000.00 with a purchase money mortgage with Alliance Bank for $1,550,000.00

Ms. Swain has been an assessor for the board for approximately six years. She was assigned to conduct assessments of commercial properties within a certain geographical area. She is a college graduate with a Bachelor of Art degree. She is also has a real estate license issued by the Commonwealth of Pennsylvania. Ms. Swain testified that she had been assigned to do routine commercial property assessments in an area known as the “Avenue of the Arts.” The subject property is located within this area. Her assessment of this property included a comparison other commercial properties with a retail component along the corridor of Washington Avenue from 900 to 2100 blocks. She specifically compared it to a CVS located at the corner of 11 th and Washington Avenue and an Asian food market located at 12th and Washington Avenue. She compared the lot size of the property and the percentage of space used for retail. She also submitted as an exhibit a list of other commercial properties she considered when conducting this assessment. That document was admitted into evidence. The properties she compared had retail components with off street parking. She testified that the purchase price, the mortgage, the improvements and the comparables in the area as being the basis upon which she determined the assessed value and market value of the subject property. Pursuant to her assessment and based upon her experience and the comparables she opined that the market value of this property is $240,000.00 with an assessed value of $750,000.00.

Michael Carosella is one of the partners of 1300 Washington Avenue, LP and testified on behalf of appellant. He testified that when this property was purchased there was an existing long-term lease with the tenant Sav-A-Lot. This lease had been entered into with the previous property owner. This lease does not allow the landlord to pass on to the tenant any increase in taxes which would result from this increased tax assessment. He opined that in spite of the purchase price, the market value of the property remains at $192,000.00, the assessed value should remain at $600,000.00, and that an increase to $750,000.00 is neither justified nor fair. Mr. Carrosella admitted the purchase price and the mortgage described above. However, appellant contends that the existence of a long term lease which requires the landlord to carry any additional costs which would result from an increased tax assessment, drastically affects the “fair market value” of the property. He contends that despite the actual purchase price, the inability to increase the rental results in an inability to meet its monthly costs on the part of the owner thus reducing the “market value.” Mr. Carosella opined that as the owner of the property the value did increase primarily due to the restrictions contained in the long term lease. He also testified that he owns other properties in the area and is familiar with the real estate market and the value of commercial properties along this Washington Avenue corridor. Specifically he testified as to properties in this same block of Washington Avenue and compared the BRT assessed values/market values with the proposed increase on this property.

Appellant presented the BRT (Board of Review of Taxes) records for the properties adjacent to the property in question, 1322-24 Washington Avenue, 1326-36 Washington Avenue and 1342 Washington Avenue. Although appellant testified that each of these properties were commercial and with a rental component, Ms. Swain testified that she did not consider these properties to determine comparables because BRT records do not list these as commercial.

The board contends that these properties were not considered because they are not designated “commercial” under the BRT records. Therefore, in spite of their use, they were not considered for purposes of this assessment. Appellant presented to the court a comparison of these properties as the square footage, the actual value and the assessed value for each of the properties. He believed these properties should have been the basis of any comparison done by the assessor. He further contended that board’s failure to consider these properties resulted in an error and was unfair. Appellant presented photographs of each of the properties specified above. Each property did in fact appear to be commercial with a retail component.

Finally, appellant presented an income and expense statement for the property in question and again indicated that this increase in assessed/market value, as well as the existence of the lease with a no increase clause, will result in an inability to meet his expenses on this property.

DISCUSSION

The board presented as its expert witness, the assessor who testified as to the value, the improvements on the land, and the comparables she used in determining this assessment. Further, the purchase price for this property appeared to be consistent with this change in assessment and market value. In presenting this to the court, she did in fact differentiate between the land and the improvements thereon. The last change regarding the value of property was in 1996. The board also presented copies of photographs. Exhibit City B contains the list of properties considered by Ms. Swain.

The board contended that it had presented sufficient evidence to confirm its assessment as follows:

Year Market Value Ratio Assessed Value
2009 $750,000.00 32% $240,000.00

Appellant did not present an appraisal for the properly at issue nor did it present an appraisal for the properties adjacent to the one at issue. Appellant contends that the assessment is excessive, unfair, unjust and unequal. The court must, from the evidence presented, determine the fair market value of the property as a whole and fix the assessment accordingly. Sheldon Hotel Corporation Assessment Appeal, 668 A.2d 242. The “trier of fact must consider all competent evidence presented by the parties as to the value of the property in question.” May Department Stores Company v. Allegheny County Board of Property Assessment, Appeals and Review, et al., 441 Pa. 556, 272 A.2d 862 (1971). As further stated in this Mays case, “the court below must first decide on the basis of the competent, credible and relevant evidence produced by all of the parties what the fair market value of the property involved is.” Id. 286. “Fair Market Value” is defined as “the price which a purchaser, willing but not obligated to buy, would pay an owner, willing but not obligated to sell, taking into consideration all uses to which the property is adapted and might in reason be applied.” Buhl Found v. Board of Property Assessment of Allegheny County, 407 Pa. 567, 570, 180 A.2d 900, 902 (1962).

In this case the court finds that the board presented evidence to make out a prima facie case for the validity of the assessment. The court finds that the evidence presented by Ms. Swain was credible and a reasonable basis upon which to determine market value.

Appellant on the other hand has failed to present any evidence other than the testimony of Mr. Carosella, a partner in appellant. Although appellant’s counsel cites Hoffman v. Commonwealth, 422 Pa. 166, 220 A 2d. 790, (1966), which found an owner of the property may testify as to market value, this testimony must be based on something other than mere speculation. In this case, appellant argued that the three properties adjacent to the property at issue should have been basis of the comparables used by the board. However, as testified to by Ms. Swain, these properties are not considered commercial by the BRT and therefore could not be used as comparables.

Appellant contends that the “fair market value” of this properly is dependent upon the conditions of the existing long term lease of the retail space. This lease does not allow the property owner to pass on to the tenant any increase in real estate tax that results from this increased assessment. Appellant contends that this reduces “fair market fair” in spite of the purchase price. As previously stated the court finds that the board has presented a prima facie case to establish its determination of market value and assessed value. This court finds the testimony of Ms. Swain to be credible. The court finds that appellant’s testimony as to the adjacent properties and his contention that they be used as comparables is not relevant in this proceeding. These properties were not considered because in spite of their alleged use, the BRT does not classify them as commercial. The second argument as to the effects of the conditions/restrictions of the long term lease on the market value is relevant. However, the testimony of the lay witness was not sufficient to overcome appellant’s burden on this appeal. Appellant contends that if the taxes are increased it cannot meet its expenses. However, the court received no evidence as to how this would affect “fair market value.”

Accordingly, this court finds as follows:

The court therefore finds that the board correctly determined market value and assessed value for the year 2009 on the property in question and finds the valuation of 1300 Washington Avenue, Philadelphia to be for 2009 market value $750,000.00 and assessed value $240,000.00.

ORDER

And now, November 29, 2010, upon consideration of the testimony and evidence presented and for the reason set forth above, the court finds that the Philadelphia Board of Revision of Taxes properly assessed that value of the property 1300 Washington Avenue and therefore the court values said property for the year 2009 as follows: market value $750,000.00, assessed value: $240,000.00.


author: PANEPESfTO, J.,

text:
    Thompson v. PA Portfolio investors, LLC

      Lopez Thompson, pro se.

      Nolan Ganguli Shenai, Jonathan W. Hugg and David Fein, for appellee.
    January 18, 2011
   PANEPESfTO, J.,

Appellant, Lopez Thompson, representing himself, appeals this court’s order entered August 13, 2010 and docketed August 25, 2010, which denied appellant’s motion to strike/open confession of judgment and order entered and docketed October 25, 2010, which denied appellant’s motion for reconsideration of his motion to open/strike the confessed judgment entered in an action for a confession of judgment in connection with a consumer credit transaction.

PROCEDURAL AND FACTUAL BACKGROUND

This matter stems from a confession of judgment filed against appellant, Lopez Thompson (hereinafter referred to as “appellant”), on a consumer credit transaction associated with the premises located at 5402 Walnut Street, Philadelphia, Pennsylvania. The confession of judgment was entered in favor of PA Portfolio Investors, LLC (hereinafter referred to as “appellee”) after a commencement by judgment and the confession was filed with damages assessed in the amount of $241,458.76. On May 17,2010, appellee (re)filed a praecipe for writ of execution, with the writ (re)issued on the subject premises of 5402 Walnut Street, Philadelphia, Pa.

On June 14,2010, appellant filed a motion to open/strike the confessed judgment. Prior to the hearing on the motion to open/strike, appellant filed an emergency motion to stay writ of execution on August 2, 2010. Appellant’s emergency motion to stay was granted on August 2, 20 .10 and the sheriff sale on the properties at 5402 Walnut St. and 5249 Chestnut St., Philadelphia Pa., were postponed from August 3,2010 to September 14,2010. An order was entered on August 13, 2010 and docketed on August 25, 2010, denying appellant’s motion to strike/open confession of judgment.

On August 27, 2010 appellant’s motion for reconsideration was filed. On May 5, 2010, a rule was entered to show cause why the motion to open judgment was entered listing this matter for a hearing to be held on June 3,2010. Appellee’s filed a brief in opposition to the motion to open on May 7, 2010 and docketed May 10, 2010. A rule was entered and docketed on September 13, 2010 listing a hearing for October 7, 2010. The rule also included an order which postponed the sheriff sale of the subject properties from September 14, 2010 to November 2, 2010.

A full hearing was held on October 7,2010 with appearances by both parties during which an agreement between the parties was discussed and a possible settlement was offered. The court scheduled a follow-up hearing on October 21,2010 to determine if the parties reached a settlement. At the October 21, 2010 hearing, the parties stated they could not reach a settlement and the court heard argument on the underlying motion. After the second hearing, this court denied the motion for reconsideration of his petition to open and/or strike the confessed judgment by order dated and docketed October 25, 2010. On October 29, 2010, appellant filed this appeal to the Superior Court of the order denying the motion for reconsideration.

ALLEGATIONS OF ERROR

On November 2, 2010, docketed November 3, 2010, this court entered an order directing appellant to file a rule 1925(b) statement no later than 21 days after the entry of the order. The docket indicates that notice under rule 236 was given on November 4, 2010. Appellant did serve a copy on this court and it was docketed on November 26, 2010. Appellant listed his concise statement of errors complained of on appeal as follows:

1) Court erred in denying defendant’s petition to open confession of judgment, by its order dated August 25, 2010 when it was evident from the record and the evidence presented that plaintiff’s complaint contained amounts which were not authorized by the note/warrant. To wit:
a.Excessive interest of $21,262.29.
b. Late fees of $19,482.71.00 for seven (7) months which the note did not authorize and were only to be collected during monthly payments.
c. Attorney’s fees of $27,860.63 which were base upon the subtotal amount of $188,737.50 due at 15 percent. The amounts in (a), (b) and added to the principal amount of $133,992.50 calculate to $174,737.50. Counsel fees of 15 percent ($126,210.66) would have been added to bring a total amount due of $200,948.16. The court allowed the amount of $241,458.76 to be entered as a judgment. These amounts are stated in paragraph 16 of plaintiff’s complaint (Exhibit “A”) and entry of appearance for the confession of judgment (Exhibit “B”).

2) Court in its August 25,2010 order erred in denying defendants’ petition to strike confession of judgment, when it was evident from the record and the evidence presented that plaintiff’s complaint contained amounts which were not authorized by the note/warrant and there was a miscalculation of the amounts on the record. To wit:

a. Excessive interest of 21,262.29.
b. Late fees of $ 19,482.71.00 for seven (7) months which the note did not authorize and were only to be collected during monthly payments.
c. Attorney’s fees of $26,860.63 which were based upon the subtotal amount of $185,737.50 due at 15 percent. The amounts in (a), (b) and added to the principal amount of $133,992.50 calculate to subtotal of $174,737.50. Counsel fees of 15 percent ($26,210.66) would have been added to bring a total amount due of $200,948.16. The court allowed the amount of $241,458.76 to be entered as a judgment. These amounts are stated in paragraph 16 of plaintiff’s complaint and entry of appearance for the confession of judgment.

3) Court erred in its August 25, 2010 order denying defendants petition to strike the confessed judgment, when it was clear from the complaint and admitted by the plaintiff that a computational error had been made in the amount $241,458.76 entered by the prothonotary as confessed judgment which was $40,510.60 over the amount that plaintiff prayed for. It was clear that a computation error had occurred.

4) On October 25,2010, the court entered an order denying defendant’s motion for reconsideration (Exhibit “C”) which it granted on September 13, 2010 by way of its order of even date. The court entered an order September 13,2010, stating that “upon reconsideration of the defendant’s motion to strike/open confession of judgment and this court’s order of August 25, 2010” that it was scheduling a hearing on October 7, 2010 to determine why the petition to open and or strike should not be granted, and on the date of the hearing state that it was the court intention to state that he had reconsidered by way of his September 13, 2010. The court then during the October 21, 2010, hearing asked defendant, “What are we here for.” The response was “argument on the petition to open and or strike.” The court then asked the plaintiff’s counsel, “What are were here for?” The response was “argument on the petition to open and or strike.” The court after the hearing then entered an order on a motion for reconsideration which had already granted pursuant to its September 13, 2010 order and the court’s comments.

5) Court erred in not striking plaintiff’s praecipe for writ of execution which was filed on May 17, 2010, five (5) days after the confession of judgment was entered (see docket as Exhibit “D”). The filing of the praecipe was filed without notice as required by Pennsylvania Rule of Civil Procedure 2958.1. The praecipe was defective as a result and therefore should have been stricken by the court. Pa. Rule of Civil Procedure 2958.1 provides: (a) A written notice substantially in the form prescribed by Rule 2964 shall be served on the defendant at least thirty days prior to the filing of the Praecipe for a write of execution.

6) The court erred in not allowing argument during the October 21,2010 hearing as to the date the loan was declared into default which is significant as it would have established two important factors:

a. Payments made by the defendant and accepted by the plaintiff up to and including August of 2009, showing that there was modification of the loan by Paramount mortgage, plaintiff’s predecessor.
b. That the loan was current when the plaintiff, PA Portfolio Investors became assignee.
[The remaining paragraphs were excluded for the sake of brevity and the above listed concise statement was transcribed verbatim]

ANALYSIS

Appellant’s motion for reconsideration of the denial of the motion to open/strike the confession of judgment was properly denied. Appellant did not state any new information or legal grounds that were not available at the time the motion to open the default judgment was filed to be sufficient for this court to grant reconsideration of its prior decision. Appellant’s appeal of the motion to open/strike the confessed judgment was untimely.

Appellant, in his Rule 1925 issue for appeal, set forth six (6) issues complained of on appeal. Each of the six errors will be discussed separately.

1) The court erred in denying appellant’s petition to open confession of judgment, by its order dated August 25,2010, when it was evident from the record and the evidence present that plaintiff’s complaint contained amounts which were not authorized by the note/warrant.

This appeal has been taken from the order entered on August 13, 2010 and docketed on August 25, 2010. The notice of appeal should have been filed on or before September 25, 2010. See Pa.R.A.P. 903(a) (notice of appeal shall be filed within 30 days after the entry of the order from which the appeal is take); Pa.R.A.P. 108(b)(date of entry of a civil order is the day on which the clerk makes a notation on the docket that notice of the entry of the order has been sent pursuant to Pa.R.Civ.P. 236(b)).

As the notice of appeal was filed on October 29, 2010, this appeal is untimely.

2) The court in it’s August 25,2010 order erred in denying appellant’s petition to strike confession of judgment, when it was evident from the record and the evidence presented that plaintiff’s complaint contained amounts which were not authorized by the note/warrant and there was a miscalculation of the amounts on the record.

This appeal has been taken from the order entered on August 13, 2010 and docketed on August 25, 2010. The notice of appeal should have been filed on or before September 25, 2010. See Pa.R.A.P. 903(a) (notice of appeal shall be filed within 30 days after the entry of the order from which the appeal is take); Pa.R.A.P. 108(b)(date of entry of a civil order is the day on which the clerk makes a notation on the docket that notice of the entry of the order has been sent pursuant to Pa.R.Civ.P. 236(b)).

As the notice of appeal was filed on October 29, 2010, this appeal is untimely.

3) The court erred in its August 25, 2010 order denying appellant’s petition to strike the confessed judgment, when it was clear from the complaint and admitted by the appellee that a computational error had been made in the amount $241,458.76 entered by the prothonotary as confessed judgment which was $40,510.60 over the amount that plaintiff prayed for. It was clear that a computation error had occurred.

This appeal has been taken from the order entered on August 13, 2010 and docketed on August 25, 2010. The notice of appeal should have been filed on or before September 25, 2010. See Pa.R.A.P. 903(a) (notice of appeal shall be filed within 30 days after the entry of the order from which the appeal is take); Pa.R.A.P. 108(b)(date of entry of a civil order is the day on which the clerk makes a notation on the docket that notice of the entry of the order has been sent pursuant to Pa.R.Civ.P. 236(b)).

As the notice of appeal was filed on October 29, 2010, this appeal is untimely.

4) On October 25, 2010, the court entered an order denying appellant’s motion for reconsideration, which it granted on September 13, 2010 by way of its order of that date. The court entered an order September 13, 2010, stating that “upon reconsideration of the defendant’s motion to strike/open confession of judgment and this court’s order of August 25, 2010” that it was to schedule a hearing on October 7,2010 to determine why the petition to open/ or strike should not be granted, and on the date of the hearing stated that it was the court’s intention to state that he had reconsidered by way of his September 13,2010 order. The court then further during the October 21, 2010 hearing asked appellant, “What are we here for?” The response was “argument on the petition to open and/or strike.” The court then asked the appellee’s counsel, “What are we here for?” The response was “argument on the petition to open and/or strike.” The court after the hearing then entered an order on a motion for reconsideration which had already granted pursuant to its September 13, 2010 order and the courts comments.

The denial of reconsideration is not subject to review on appeal. Erie Ins. Exch. V. Larrimore, 987 A.2d 732 (Pa. Super. 2009); Cheathem v. Temple Univ. Hosp., 743 A.2d 518 (Pa. Super. 1999).

An order granting reconsideration is only effective if it is made and entered on the docket before the expiration of the applicable appeal period. The applicable appeal period is thirty (30) days from the docketing of the order that is subject of the reconsideration motion. Pa. R.A.P. §1701(b) (3)(ii); see also Schoff v. Richter, 562 A.2d 912, 913 (Pa. Super. 1989). !f it does not grant reconsideration within the time set by the rules for filing an appeal, the trial court loses its power to act on the application for reconsideration. See Pa.R.A.P. §1701, n.

The Pennsylvania Superior Court has repeatedly held that:

(O)nce a final order or judgment is entered, an appeal must be filed within thirty days or, the trial court must expressly grant reconsideration within thirty days. If either of these two events do not occur, the judgment is final and except for “extraordinary cause” is not subject to collateral attack by virtue of a petition to open and/or strike. Vanleer v. Lerner, 559 A.2d 577, 579 (Pa. Super. 1989), citing Luckenbaugh v. Shearer, 523 A.2d 399, 402 (Pa. Super. 1987). (emphasis added)

This court further denies the factual allegations set forth by the appellant on what occurred at the reconsideration hearing that was held on October 21, 2010. The court issued an “order and rule” on September 13, 2010 which stated:

upon reconsideration of the defendant’s motion to strike/open confession of judgment and this court’s order of August 25, 2010, it is hereby ordered and decreed that a rule is hereby issued to determine why the within requested relief should not be granted.

This “order and rule” were entered under the control number 10083718, which is associated with the motion for reconsideration filed by the appellant. At no point in the September 13, 2010 order did the court grant reconsideration or “that it was schedule a hearing on October 7, 2010 to determine why the petition to open/or strike should not be granted” as alleged by the appellant.

At the hearing on October 21, 2010 when reconsideration was argued, the court did not state that reconsideration was granted and repeatedly stated its belief that the present issue before the court was reconsideration. October 21, 2010 hearing transcript pg 9, 16-17, pg 15, 9-11, pg 16, 2-4, pg 17, 9-15.

5) The court erred in not striking the appellee’s praecipe for writ of execution which was filed on May 17, 2010, five (5) days after the confession of judgment was entered. The praecipe was not filed with notice as required by Pennsylvania Rule of Civil Procedure 2958.1. The praecipe was defective as a result and therefore should have been stricken by the court.

The appellant’s issue complained of on appeal was never before this court. Appellant requested an emergency motion to stay execution proceedings in the form of a scheduled sheriff sale on August 2, 2010. The appellant’s request was granted by Judge Fox’s order entered on August 2, 2010. Without the application to this court by appellant on the issue of a stay, an order was entered on September 13,2010 granting appellant a further stay of execution. The court postponed the scheduled sheriff sale until after the resolution of the reconsideration hearing in this matter.

6) The court erred in not allowing argument during the October 21, 2010 hearing as to the date the loan was declared into default, which is significant as it would have established two important factors: (a) payments made by the appellant and accepted by the appellee up to and including August of 2009, showing that there was modification of the loan by Paramount Mortgage, the plaintiff’s predecessor; and (b) that the loan was current when the appellee, PA Portfolio Investors, became assignee.

The appellant’s issue complained of on appeal does not have merit. The hearing on October 21, 2010 concerned the reconsideration of this court’s prior denial of appellant’s motion to open/strike confession of judgment. The denial of reconsideration is not subject to review on appeal. Erie Ins. Exch. V. Larrimore, 987 A.2d 732 (Pa. Super. 2009); Cheathem v. Temple Univ. Hosp., 743 A.2d 518 (Pa. Super. 1999).

CONCLUSION

Overall, the record shows that appellant did not timely file an appeal on the denial of his motion to “open/strike confession of judgment.” Appellant’s appeal of the court’s denial of reconsideration and other arguments are without merit.

Accordingly, for the reasons stated above, this appeal should be denied.


text:
    Lewis v. Marshalls Creek Plumbing & Electrical Supplies

      Thomas Clark, for plaintiffs.

      Edwin Abrahamsen Jr., for defendant.
    January 20, 2011
   ZULICK, J.,

This case arises from injuries plaintiff Melton Lewis allegedly received from the explosion of a commercial stove at Milford Manor on February 4, 2008. While attempting to light a pilot light, Lewis ignited escaping natural gas and burned his face.

He also struck and injured his knee on a table in his effort to avoid the exploding gas. Plaintiffs Melton Lewis and Constance Lewis brought the instant action against defendant Marshalls Creek Plumbing & Electrical Supplies (“Marshalls Creek”), alleging that its installation of a gas line on February 1, 2008 was negligent and caused the explosion which injured Mr. Lewis.

The Lewis’s filed suit on June 18, 2009. Marshalls Creek filed a timely answer and new matter on November 4, 2009. Marshalls Creek has now moved for summary judgment. The parties submitted briefs and the matter was argued on January 3, 2011.

DISCUSSION

The Pennsylvania Rules of Civil Procedure permit a party to move for summary judgment after the close of pleadings. Pa.R.C.P. 1035.2. Summary judgment is appropriate only in those cases in which: (1) the record shows that there is no genuine issue of material fact, and (2) the moving party is entitled to judgment as a matter of law. Erie Ins. Co. v. Abbott Furnace Co., 972 A.2d 1232, 1237 (Pa. Super. 2009). Summary judgment is therefore proper only when the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. Lance v. Wyeth, 4 A.3d 160, 163 (Pa. Super. 2010).

The moving party has the burden of proving that no genuine issues of material fact exist. The trial court must examine 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 against the moving party. Moyer v. Teledyne Cont’l Motors, Inc., 979 A.2d 336, 342-43 (Pa. Super. 2009) (citation omitted). The burden is therefore placed upon the moving party to prove that there is no issue of material fact. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 204, 412 A.2d 466, 468-69 (1979). In sum, only when the facts are so clear that reasonable minds cannot differ, may a trial court properly enter summary judgment. Lance, 4 A. 3d at 163.

To state a cause of action based on negligence, a plaintiff must establish the existence of a defendant’s duty, a breach of that duty, and a causal connection between the breach of duty and an injury suffered by the plaintiff. Petrongola v. Comcast Spectator, L.P., 789 A.2d 204, 209 (Pa. Super. 2001). A duty is an obligation recognized by the law requiring a person to conform to a certain standard of conduct for the protection of others against unreasonable risk. See Hoffman v. Sun Pipe Line Co., 515 A.2d 122, 125-26 (Pa. Super. 1990). “Generally, the law does not impose affirmative duties absent the existence of some special relationship, be it contractual or otherwise.” Pyeritz v. Commonwealth of Pennsylvania, et al., 956 A.2d 1075, 1082 (Pa. Cmwlth. 2008). Pennsylvania courts have held that such a duty of affirmative action arises from a contractual relationship. See, e.g., Bloomsburg Mills v. Sardoni Construction Co., 401 Pa. 358, 361, 164 A.2d 201, 203 (Pa. 1960) (“An architect is bound to perform with reasonable care duties for which he contracts.”).

Mr. Lewis argues Marshalls Creek breached that duty. He points to discrepancies in the testimony of defendant’s representatives, as well as between defendant’s representa-tives and Mr. Lewis, as a reason summary judgment should be denied. He asserts that the conflicting testimony creates a genuine issue of material fact as to whether Marshalls Creek breached its duty.

Michael Reilly, a plumber employed by Marshalls Creek and assigned to the job at Milford Manor, testified that he and co-worker Ernest Kress connected the gas lines to the stove on Friday, but did not turn on the gas or the pilot lights. (Reilly Dep. at 15, 18.) Ernest Kress testified that he and Reilly did not even connect the gas lines to the stove; they just established a flexible connection. (Kress Dep. at 9, 10.) Randy Repsher, maintenance worker for Milford Manor, testified that Marshalls Creek connected the gas lines to the stove and lit the pilot lights. (Repsher Dep. at 16.) Mary Eileen Hines Wurz, an administrator at Milford Manor, testified that the stove was fully functional after Marshalls Creek worked on it, and that breakfast, lunch and dinner were cooked on the stove on Saturday, February 2, 2008, and Sunday, February 3, 2008. (Wurz Dep. at 25.) Mr. Lewis testified that on Monday morning, the gas lines were connected to the stove, but that one of the pilot lights was out and he could smell gas. (Lewis Dep. at 33.)

The evidence presented by the plaintiff does not establish that Marshalls Creek breached its duty of reasonable care in performing its work of connecting the gas line to the stove. Considering the evidence in a light most favorable to the plaintiff, Marshalls Creek was tasked to establish a gas supply to the stove and the fryer. No evidence, expert or otherwise, has been presented to establish that Marshalls Creek failed to properly do that. Milford Manor used the stove to prepare meals without incident for three meals on Saturday and three meals on Sunday. Mr. Lewis smelled gas when he came into work on Monday morning. He found that five of the six pilot lights on the stove were lit, but the one under the grill was out. The fact that a pilot light was out that morning without more does not establish that Marshalls Creek failed to use reasonable care. There is no suggestion in the evidence that Marshalls Creek’s shoddy work caused the gas to leak that morning. The stove had been put to heavy use over the preceding two days to the full satisfaction of Milford Manor.

Absent a showing that Marshalls Creek breached its duty of care, Mr. Lewis has failed to establish negligence, and the conflicting testimony of witnesses, supra, does not create a genuine issue of material fact. Marshalls Creek is entitled to judgment as a matter of law.

ORDER

And now, January 20, 2011, upon consideration of the parties’ briefs and arguments, the motion for summary judgment of defendant Marshalls Creek Plumbing & Electrical Supplies is granted.