author: HIGGINS, J.,

text:
    Hospitality Associates of Tannersville, L.P. v. Aaron and Wright Technical Services

      C.P. of Monroe County,
    No. 1807-CV-2007.

      George Westervelt, for plaintiff.

      Mark T Sheridan and David J. Shannon, for defendant.
    February 8, 2013
   HIGGINS, J.,

On March 14, 2007, the Plaintiff, Hospitality Associates of Tannersville, L.P. (hereinafter “Hospitality”), filed a complaint against the defendant, Aaron and Wright Technical Services and LandAmerica Assessment Coiporation (hereinafter “LandAmerica”). Hospitality seeks recovery of funds that were expended due to reliance on an allegedly erroneous property evaluation provided by LandAmerica to Marathon Asset Management (hereinafter “Marathon”) pursuant to a contract therewith. On December 21,2007, LandAmerica filed a motion for summary judgment. Following oral argument and consideration of the parties’ briefs, the Honorable Jerome P. Cheslock denied LandAmerica’s motion on March 5, 2008.

On July 2, 2012, LandAmerica filed a second motion for summary judgment, and a brief in support thereof on November 2, 2012. On November 2, 2012, Hospitality filed an answer to LandAmerica’s motion along with a countermotion for summary judgment and a brief in support thereof. Both parties have presented oral argument before this court. The pleadings and discovery in this matter are closed. There are no genuine issues of material fact, and the matter is ripe for summary judgment.

DISCUSSION

Summary judgment may be granted pursuant to Pa. R. Civ. P. 1035.2 where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 468-69 (Pa. 1979). Summary judgment is properly entered where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law. Pa. R. Civ. P. 1035(b); Cosmas v. Bloomingdales Bros., Inc., 660 A.2d 83, 85 (Pa. Super. 1995).

Summary judgment may be granted only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co. Inc., 562 A.2d 279, 280 (Pa. 1989). The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Davis v. Pennzoil Co., 264 A.2d 597 (Pa. 1970). Moreover, the burden is on the moving party to prove that no genuine issue of material fact exists. Long v. Yingling, 700 A.2d 508, 512 (Pa. Super. 1997). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson, 412 A.2d at 469.

In response, the nonmoving party may not rest upon the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. Phaff v. Gerner, 303 A.2d 826 (Pa. 1973). The court may also accept as true all wellpled facts contained in the non-moving party’s pleadings. Mattia v. Employers Mut. Cos., 440 A.2d 616 (Pa. Super. 1982); Ritmanich v. Jonnel Enters, Inc., 280 A.2d 570 (Pa. Super. 1971). A general denial is unacceptable and deemed an admission where it is clear that the defendant has adequate knowledge and that the means of information are within the control of the defendant. Elia v. Olszewski, 84 A.2d 188 (Pa. 1951).

I. Facts before the Court

On April 25, 2005, Milestone Capital Corporation (hereinafter “Milestone”) entered into an agreement of sale for the purchase of the Chateau Resort and Conference Center from Mountain Lake Properties. Pursuant to the agreement of sale, Milestone was provided a two month period to conduct and conclude any due diligence necessary for the purchase of the property. In order to finance the purchase of the property, Milestone approached Marathon for assistance. Milestone later assigned its interest in the sale agreement to Hospitality.

In order to inform its financing decision, Marathon entered into an agreement with LandAmerica, of which Aaron and Wright is a subsidiary, to conduct a Property Assessment Condition Report of the property. Marathon and Land America were the only parties to the consulting agreement signed for the evaluation of the property (hereinafter “agreement”). Defendant’s Motion for Summary Judgment, Exhibit ‘A’. Hospitality was not a direct party to the agreement nor is it mentioned anywhere in the agreement as an express third party beneficiary. Id. However, Hospitality did provide payment for LandAmerica’s services to Marathon.

On June 14, 2005, LandAmerica provided Marathon with a property assessment report of the Chateau property (hereinafter “report”). Hospitality obtained and relied on the report in assessing the necessary repairs and renovations to the property. Hospitality alleges that the report was incorrect with respect to the existence and operational capacity of fire suppression sprinklers. As a result of its reliance, Hospitality had to expend $300,000.00 to install a sprinkler system and lost bookings during the installation period.

Section 2.1 of the report titled “purpose” provides “LAC (i.e. LandAmerica Assessment Corporation) was retained to conduct a property condition assessment of the subject property to assist in the underwriting of a proposed mortgage loan of the real property.” Defendant’s 12/21/2007 Motion for Summary Judgment, Exhibit ‘C\ Additionally, Section 2.6 of the report titled “User Reliance” provides:

The investigation was conducted on behalf of and for the exclusive use of Marathon Asset Management (Client), solely for use in a property condition evaluation of the subject property. This report and findings contained herein shall not, in whole or in part, be disseminated or conveyed to any other party, nor used by any other party, in whole or in part without prior written consent of Aaron & Wright (owned by LandAmerica). Aaron & Wright acknowledges and agrees that the report may be conveyed to and relied upon by client, the lender and the title insurer associated with the refinancing and/or property transfer of the subject property.

Id. These terms were not present in the agreement and there is no evidence that Marathon took action to assent to these conditions.

II. Cross Motions for Summary Judgment

LandAmerica moves for summary judgment asserting that Hospitality is unable to proceed under any of the counts of the complaint. LandAmerica argues that the claim for breach of contract in Count I fails because Hospitality was neither a party to the agreement nor was it an intended third party beneficiary. LandAmerica further contends that it owed no duty of care to Hospitality and, therefore, Counts II through VII fail because each relies on LandAmerica breaching a duty owed to Hospitality.

Hospitality responds, also moving for summary judgment as to liability. Hospitality concedes that it is not a party to the agreement, but that it does qualify as an intended third party beneficiary. Additionally, Hospitality argues that under both California and Pennsylvania law, it can maintain claims under Counts II through VII as an intended beneficiary of the report to whom LandAmerica owed a duty. Paragraph K in the terms and conditions to the agreement provides that California law is to govern any dispute under the agreement. However, a choice of law analysis is unnecessary because, as indicated by Hospitality in its brief, California and Pennsylvania are in agreement on these matters.

A. Breach of Contract

LandAmerica moves for summary judgment as to Count I of the complaint, arguing that Hospitality’s breach of contract claim must fail because it is neither a party to the agreement nor is it an intended third party beneficiary thereof. Hospitality responds that it may not have been a direct party to the agreement between LandAmerica and Marathon, but that it was an intended third party beneficiary. After consideration of the undisputed material facts, pertinent law, and the parties’ arguments, LandAmerica’s motion for summary judgment as to Count I will be granted.

“Three elements are necessary to plead properly a cause of action for breach of a contract: (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages.” J.F. Walker Co., Inc. v. Excalibur Oil Group, Inc., 792 A.2d 1269, 1272 (Pa. Super. 2002) (citations omitted). Generally, a contract cannot legally bind a person or entity who is not a party thereto. Marshall v. Port Authority of Allegheny County, 568 A.2d 931, 936 (Pa. 1990). However, a person or entity may have standing to sue for a breach of contract, though not a party thereto, if designated an intended third party beneficiary. Guy v. Liederbach, 459 A.2d 744 (Pa. 1983); Scarpitti v. Weborg, 609 A.2d 147 (Pa. 1992). Hospitality concedes that it was not a direct party to the agreement and, therefore, would have standing to sue for breach only as a third party beneficiary.

LandAmerica argues thatHospitality was not an intended beneficiary of the consultation agreement relying on Guy, supra, and Scarpitti, supra. In Scarpitti, the Pennsylvania Supreme Court found that homeowners were intended third party beneficiaries of a contact between an architect and subdivision developer. Scarpitti, 609 A.2d at 151. The contract imposed a duty on the architect to review all building plans and enforce subdivision restrictions. Id. The court found that “[i]t is the homeowners who have the greatest interest in uniform enforcement of restrictions and it is the homeowners who were benefitted by the establishment of a vehicle to enforce the restrictions.” Id. In so ruling, the supreme court held that:

[A] party becomes a third party beneficiary only where both parties to the contract express an intention to benefit the third party in the contract itself...unless, [(1)] the circumstances are so compelling that recognition of the beneficiary’s right is appropriate to effectuate the intention of the parties, and [(2)] the performance satisfies an obligation of the promisee to pay money to the beneficiary or the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.

Id. (citing Spires v. Hanover Fire Insurance Co., 70 A.2d 828 (Pa. 1960); Guy, supra) (emphasis in original). “The first part of the test sets forth a standing requirement... [which] leaves discretion with the trial court to determine whether recognition of third party beneficiary status would be ‘appropriate.’” Guy, 459 A.2d at 751.

In responding to LandAmerica’s arguments and moving for summary judgment, Hospitality relies on Bily v. Arthur Young & Co., 834 P.2d 745 (Cal. 1992), Robert H. Sorosky M.D. Defined Benefit Pension Plan v. Hamill, 56 Cal.Rptr.2d 313 (Cal. Ct. App. 1996), and Bilt-Rite Contractors, Inc. v. The Architectural Studio, 866 A.2d 270 (Pa. 2005). However, these cases all consider the application of the standard articulated in the Restatement (Second) of Torts §552 which addresses the extension of a duty to third parties. These cases do not address breaches of contract or the designation of third party beneficiaries.

The undisputed material facts show that Hospitality was not a third party beneficiary to the agreement. In construing the agreement, the parol evidence rule will bar consideration of any prior or contemporaneous oral representations. LeDonne v. Kessler, 389 A.2d 1123, 1126 (Pa. Super. 1978). The rule’s purpose is to “preserve the integrity of written agreements by refusing to permit the contracting parties to attempt to alter the import of their contract through the use of contemporaneous (or prior) oral declarations.” Id. (quoting Rose v. Food Fair Stores, Inc., 262 A.2d 851, 853 (Pa. 1970)). The language of the Agreement makes clear that there was no express intent by the parties to include Hospitality as a third party beneficiary. Therefore, under Scarpitti, the circumstances must be so compelling as to require recognition of Hospitality as a beneficiary to effectuate the parties’ intent. As noted by the court in Guy, this is a threshold issue of standing whereby the court may evaluate whether relief is appropriate.

Here, the circumstances evince no such intent to benefit Hospitality. The agreement itself is a simple three page document and provides no evidence that Hospitality was contemplated as a beneficiary in forming the arrangement betweenLandAmerica andMarathon. Though the language in Section 2.6 of the report may not be part of the contract or binding on the parties, it is a clear expression that LandAmerica did not intend any party other than Marathon to benefit from the agreement or report. Moreover, Section 2.1, though similarly non-binding, clearly shows that LandAmerica’s intent was only to provide an evaluation for Marathon’s use in granting or denying a loan. Though Marathon itself may have intended to share the report with Hospitality and provide them with the benefits thereof, recognition requires effectuation of the parties' intent, not the sole intent of one. Hospitality does not qualify as a third party beneficiary to the consultation agreement and, as such, lacks standing to sue for breach thereof. Therefore, summaiy Judgment will be granted in favor of LandAmerica as to Count I of the complaint.

B. Tort Claims

LandAmerica also moves for summary judgment on Counts II through VI, arguing that these counts all consist of tort claims and Hospitality is unable to prove any duty owed by LandAmerica to establish liability. Hospitality responds and moves for summary judgment as to liability on these counts, arguing that although LandAmerica may not have owed a direct duty to Hospitality, it was foreseeable that Hospitality would obtain and rely on the information in the Report thus creating a duty of care. After consideration of the undisputed material facts, pertinent law, and the parties’ arguments, LandAmerica’s motion for summary judgment will be granted.

LandAmerica relies on Wisniski v. Brown & Brown Ins. Co. of PA, 906 A.2d 571 (Pa. Super. 2006), arguing that Counts II through VI fail because no duty was owed by it to Hospitality. In Wisniski, the Superior Court asserted that:

Tt is axiomatic that in order to maintain a negligence action, the plaintiff must show that the defendant had a duty to conform to a certain standard of conduct; that the defendant breached that duty; that such breach caused the injury in question; and actual loss or damage.’

Id. at 575-76 (quoting Phillips v. Cricket Lighters, 841 A.2d 1000, 1008 (Pa. 2003)). The court went on to note:

‘The initial element in any negligence cause of action is the first: that the defendant owes a duty of care to the plaintiff. The existence of a duty is a question of law for the court to decide. In negligence cases, a duty consists of one party’s obligation to conform to a particular standard of care for the protection of another. This concept is rooted in public policy.’

Id. at 576 (quoting R. W. v. Manzek, 888 A.2d 740, 746 (Pa. 2005)). LandAmerica contends that based on these standards, Hospitality’s claims must fail because it at no time owed Hospitality a duty of care in completing the report.

Hospitality responds relying largely on Bily, supra, and Bilt-Rite, supra. In Bily, a public accounting firm was retained by a company to perform audits and issue reports on its 1981 and 1982 financial statements. Bily, 834 P.2d at 747. The firm conducted the audit and issued opinions addressed to the company. Id. Using the opinion on the 1982 financials, parties invested in the company. Id. at 748. The company then suffered severe losses and the investors hired an expert who found gross professional negligence in the firm’s opinions. Id. The investors filed suit claiming fraud, negligent misrepresentation, and professional negligence. Id. at 748-49. The California Supreme Court took to outline the duties owed by a supplier of information:

We conclude that an auditor owes no general duty of care regarding the conduct of an audit to persons other than the client. An auditor may, however, be held liable for negligent misrepresentations in an audit report to those persons who act in reliance upon those misrepresentations in a transaction which the auditor intended to influence.. .Finally, an auditor may also be held liable to reasonably foreseeable third persons for intentional fraud in the preparation and dissemination of an audit report.

Id. at 747. The court thus held, with regard to the negligence claim, that:

[A]n auditor’s liability for general negligence in the conduct of an audit of its client financial statements is confined to the client, i.e., the person who contracts for or engages the audit services. Other persons may not recover on a pure negligence theory.

Id. at 767.

However, with regard to negligent misrepresentation, the court found that:

[A] further narrow class of persons who, although not clients, may reasonably come to receive and rely on an audit report and whose existence constitutes a risk of audit reporting that may fairly be imposed on the auditor. Such persons are specifically intended beneficiaries of the audit report who are known to the auditor and for whose benefit it renders the audit report. While such persons may not recover on a general negligence theory, we hold they may...recover on a theory of negligent misrepresentation.

Id. In so holding, the court expressly adopted the approach articulated in the Restatement (Second) of Torts §552. Id. at 769. Section 552 provides, in pertinent part:

(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
(2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered
(a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and
(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.

Restatement (Second) of Torts §552(1) and (2) (1977).

The court considered application of Section 552 appropriate, reasoning:

The rule expressed there attempts to define a narrow and circumscribed class of persons to whom or for whom representations are made. In this way, it recognizes commercial realities by avoiding both unlimited and uncertain liability for economic losses in cases of professional mistake and exoneration of the auditor in situations where it clearly intended to undertake the responsibility of influencing particular business transactions involving third parties.

Bily, 834 P.2d at 769. Liability under Section 552, however, is limited. Id. The court concurred with the authors of Section 552, asserting that:

[Liability should be confined to cases in which the supplier ‘manifests an intent to supply the information for the sort of use in which the plaintiff’s loss occurs.’ This follows because the ‘risk of liability to which the supplier subjects himself by undertaking to give the information.. .is vitally affected by the number and character of the persons, and particularly the nature and extent of the proposed transaction’’.. .The ‘intent to benefit’ language of the Restatement Second of Torts thus creates an objective standard that looks to the specific circumstances...to ascertain whether a supplier has undertaken to inform and guide a third party with respect to an identified transaction or type of transaction. If such a specific undertaking has been made, liability is imposed on the supplier. If, on the other hand, the supplier ‘merely knows of the ever-present possibility of repetition to anyone, and the possibility of action in reliance upon the information on the part of anyone to whom it may be repeated,’ the supplier bears no legal responsibility.

Id. at 769-70 (quoting Restatement (Second) of Torts §552, com. (a) and (h)) (emphasis in original).

Hospitality asserts that the case at bar should be decided in accord with Hamill, supra, applying the Bily standard to an analogous factual scenario. In Hamill, A borrower sought a loan to be secured by a second trust deed on her residence. Hamill, 56 Cal.Rptr.2d at 314. The lender requested an appraisal, title report, and encumbrance information before issuing the loan. Id. The borrower retained an appraiser to evaluate the property, advising him that the appraisal would be used to obtain a loan for which the property would serve as security. Id. Based on the appraisal report, the lender borrowed funds from his pension plan and loaned them to the borrower in exchange for the deed. Id. at 315. The borrower defaulted on the loan and, due to the appraiser’s overestimation of the property value, the lender suffered a loss. Id. The court found that the lender was not the appraiser’s client and, therefore, the lender could not recover for negligence. Id. at 316. However, the court permitted the lender to proceed on a negligent misrepresentation claim finding that the appraiser knew the report was needed for a third party who would rely thereon in lending the borrower money. Id. at 317.

Hospitality further contends that even if Pennsylvania law governs despite the clause in the agreement the result is the same under Bilt-Rite, supra. In Bilt-Rite, an architect provided plans and specification for a construction project to a school district. Bilt-Rite, 886 A.2d at 288. The architect had full knowledge that the submitted plans would be included in a “bid package” supplied to prospective contractors bidding on the project. Id. A contractor, relying on the plans in calculating its bid, obtained the construction contract, but suffered economic loss due to the architect’s inaccurate plans and specifications which led to additional unforeseen work. Id. In holding the architect liable to the contractor, the Pennsylvania Supreme Court formally adopted Section 552 and undertook an analysis similar to the California Supreme Court in Bily. Id. at 285-88.

Under the traditional tort analysis articulated in Wisniski, Hospitality would not have a claim against LandAmerica. There is nothing in the complaint for facts before the court to suggest the creation of a duty. The only duty owed by LandAmerica was to Marathon as created by the agreement. Since Hospitality was neither a party nor third party beneficiary to the agreement, nor in any other way engaged with LandAmerica, there was no duty owed which could have been breached.

Hospitality’s claims for negligence similarly fail under the alternative analysis under Bily, Hamill, Bilt-Rite, and Section 552. As the language in Section 552 and analysis by the courts demonstrate, Section 552 does provide for an extension of liability to a class of foreseeable third parties. However, as expressly noted in Bily and Hamill, such a third party claimant cannot maintain a negligence action, only the client may do so. Therefore, summary judgment will be entered in favor of LandAmerica on Counts III and IV of the complaint as each sound in negligence.

Though Count II and VI may be cognizable under Section 552 as each alleges a tortuous misrepresentation of information, Hospitality is inappropriate as a third party claimant. Under the court’s analysis in Bily, to maintain an action for negligent misrepresentation there must be a manifest intent by LandAmerica that the report be relied upon for the “sort of use... an identified transaction or type of transaction” that Hospitality used it for. To maintain an action for fraud, Hospitality must fall within the class of “reasonably foreseeable third persons.”

There is no evidence here that LandAmerica had any intent that the report be relied upon for use in informing renovation and repair decisions. Both the Agreement and report reflect that the report was intended for use by Marathon, and Marathon was intended to use it in assessing an appropriate loan amount based on the value of the property. Hospitality’s use of the report to then inform renovation and repair decisions is not the same “sort of use.” Moreover, Hospitality was not a foreseeable third party of any alleged fraud. The report was contracted for and intended to be used to inform Marathon’s decision in issuing a loan. It would not be reasonably foreseeable that Hospitality would then use the report to inform renovation and repair decisions.

This case is factually dissimilar to Bily, Hamill, and Bilt-Rite. In each of those cases, the third party use was a foreseeable extension of the information provided. In Bily, a financial audit of a company could foreseeably be used to inform investment decisions. In Hamill, the appraiser knew that his report would be used to inform the lender’s decision. In Bilt-Rite, the architect was aware that his plans and specifications would be included in the “bid package” and thus relied on by contractors in bidding on and completing the project. Here, however, LandAmerica was approached to conduct an evaluation of the property to inform Marathon’s lending decision, but the Report was not used to inform some other financial decision; it was relied on for renovations and repairs. Unlike Bily, Hamill, and Bilt-Rite, the use of the information in this case was not foreseeable and, in fact, did not involve the same variety of transaction. Therefore, summary judgment will be entered in favor of LandAmerica as to Counts II and VI.

C. Assignment of Claims

On February 21, 2008, Marathon assigned Hospitality any and all rights that Marathon may have against LandAmerica based on the alleged inaccuracies in the report. Assuming that the assignment is valid, this would not support any claims other than those already available to Hospitality. Hospitality on its own would be unable to maintain a claim for breach of a fiduciary duty, Count V, or unjust enrichment, Count VII, against LandAmerica and is unable to do so using the assignment.

There is no evidence of an independent fiduciary duty or other relationship existing between Hospitality and LandAmerica. Hospitality may havepaidLandAmerica, but the payment was for the contracted evaluation conducted for Marathon to inform its lending decision pursuant to the agreement. Therefore, any basis for a breach of fiduciary duty or unjust enrichment claim must emanate from Marathon’s assignment. Neither the complaint nor any other evidence shows an injury suffered by Marathon as a result of any alleged action by LandAmerica. Even if there had been inaccuracies in the report, it served its purpose for Marathon in assessing the loan amount and, based on the evidence and pleadings, Marathon has suffered no loss as a result thereof. Therefore, since Marathon suffered no injury from any purported act by LandAmerica, the assignment of claims would provide Hospitality with no additional causes of action, nor allow them to maintain their own for breach or unjust enrichment. Summary judgment will be entered in favor of LandAmerica as to Counts v. and VII of the complaint.

ORDER

And now, February 8, 2013, upon consideration of the defendant’s motion for summary judgment, plaintiff’s answer and countermotion for summary judgment, and their briefs and arguments in support thereof, it is ordered as follows:

1. The motion for summary judgment by Defendants Aaron and Wright Technical Services and LandAmerica Assessment Corporation is granted.

2. The motion for summary judgment by Plaintiff Hospitality Associates of Tanners ville, L.P., is denied.

3. Plaintiff’s claims against defendants are dismissed.


source: Caselaw Access Project

author: WILLIAMSON, J.,

license: Public Domain

text:
    Jackson Twp. v. Dizzy Dottie, LLC

      C.P. of Monroe County,
    No. 3069 CIVIL 2012.

      John B. Dunn, for plaintiff.

      Ira E. Weiner, for defendant.
    January 25, 2013
   WILLIAMSON, J.,

On April 17, 2012, Plaintiff Jackson Township (hereinafter “plaintiff’), filed a complaint in equity averring two (2) counts for relief against the defendant, Dizzy Dottie, LLC. (hereinafter “defendant”). Count I of the complaint seeks to enjoin the defendant from conducting a non-permitted use in violation of the current Jackson Township Zoning Ordinance, including operation as an “adult business” at the subject premises it occupies at Route 715 and Doll Road, Reeders, Jackson Township, Pennsylvania (hereafter “premises”). Count II sought an injunction to enjoin the defendant from occupying or using the premises for any purpose until such time as the defendant secures a zoning permit for an allowable use at the premises. The defendant owned and operated a business known as “Thrills” at the premises. In a separate matter, plaintiff also filed a petition for supplemental relief on April 17,2012, seeking to enjoin and abate further violations under 68 Pa. C.S.A. §5503(b) and (d) at the premises in case No. 4487 Civil 2010. This court disposed of that petition by orders dated September 21, 2012 and September 27, 2012 and opinion of October 9, 2012.

In this matter, defendant filed an answer and new matter and plaintiff then filed a reply to new matter. On August 7, 2012, plaintiff filed a motion for a final hearing. The defendant filed an answer to the motion for final hearing and a cross-motion to hold a scheduling conference. On August 15,2012, this court issued an order granting a final hearing and denying defendant’s request for a scheduling conference. A hearing in this matter was subsequently held on October 23, 2012. Following the hearing, this court granted the parties until November 5, 2012 to file any supplemental briefs. Both parties filed briefs and we are now ready to dispose of this matter.

BACKGROUND

On October 29, 2010, in case No. 4487 Civil 2010, the Honorable President Judge Ronald E. Vican granted permanent injunctive relief to Jackson Township and against Dizzy Dottie, LLC for violation of the Jackson Township Zoning Ordinance. Judge Vican concluded in that case that Dizzy Dottie, LLC (also the defendant in this case), was operating a business at the premises that constituted an adult cabaret (“adult business”) in a zoning district in which it was not permitted. Judge Vican also granted Jackson Township’s request to enjoin and abate violations of 68 Pa. C.S.A. §5503 (b) and (d). This resulted in an order prohibiting Dizzy Dottie, LLC, or anyone else, from occupying or using all or any part of the premises for a period of one year (from October 19, 2010 to October 19, 2011).

Defendant filed post-trial motions in that matter which were denied by order entered November 5, 2010. The defendant appealed to the Commonwealth Court of Pennsylvania which filed an opinion and order on December 2,2011 affirming the trial court. By order dated July 17, 2012, the Pennsylvania Supreme Court denied Dizzy Dottie’s petition for allowance of appeal. Dizzy Dottie, LLC then re-opened for business as “Thrills” at the premises in October 2011, at the expiration of Judge Vican’s order prohibiting any use at the premises.

DISCUSSION

Plaintiff now seeks an injunction barring defendant from any further non-permitted use of the premises under the Jackson Township Zoning Ordinance, including as an adult business. Plaintiff also seeks an injunction barring the defendant from occupying or using the premises for any purpose until such time as they apply for and obtain a zoning permit for a permitted use. Although set forth as separate counts in the complaint, both essentially seek the same remedy, arising out of similar facts and circumstances.

“In order to establish a claim for a permanent injunction, the party must establish his or her clear right to relief.” J.C. Ehrlich Co., Inc. v. Martin, 979 A.2d 862, 864 (Pa. Super. 2009), citing Pestco v. Associates Products Inc., 880 A.2d 700, 710 (Pa. Super. 2005) (citation omitted). “... [Ujnlike a claim for a preliminary injunction, the party need not establish either irreparable harm or immediate relief and a court may issue a final injunction if such relief is necessary to prevent a legal wrong for which there is no adequate redress at law.” Id.

Following Judge Vican’s rulings, plaintiff, as a result of joint regional and ongoing efforts with other municipalities, (that commenced in November 2006 with the adoption of a regional joint comprehensive plan), adopted amendments to the Jackson Township Zoning Ordinance (“new ordinance”). These amendments were adopted in October 2011 before defendant re-opened for business. Prior to adoption of the new ordinance in 2011, an adult business was allowed only in an industrial zone. The new ordinance continues to allow adult businesses only in the industrial zone; however, a conditional use hearing is now required. The new ordinance defines an adult business under section 27-1602 of the ordinance. Neither the old ordinance nor the new ordinance permit an adult business in any other zoning district.

Judge Vican ruled that defendant’s use of the premises was an adult cabaret, which he found to be an “adult business” under the old ordinance. An adult cabaret is now included in the definition of an “adult business” under the new ordinance.

Under the old ordinance in effect at the time of Judge Vican’s ruling, the premises was located in a commercial zoning district. The new ordinance has since changed the zoning districts, and the subject premises is now located in an R-l (low-density residential) zoning district. An adult cabaret and an adult business are not permitted in either the commercial or residential zoning districts under both the old and new ordinance. Also, in the current R-l zoning district, a food and beverage facility (bar/restaurant) is not a permitted use. Such an establishment is allowed in the commercial zoning district under both the old and new ordinances.

The parties stipulated that the prior use of the premises before it became the “Thrills” establishment, was an eating and drinking establishment (bar/restaurant). At that time, an eating and drinking establishment was a permitted use at the premises because it was in a commercial zone, and such use was allowed in that zone. Judge Vican found in his opinion of October 19, 2010 that the defendant had changed the use from an eating and drinking establishment to an adult cabaret, which was an adult business use, and thus, prohibited in that zoning district. Judge Vican also found that the defendant never applied for a zoning permit for the change of use. Following Judge Vican’s opinion, the defendant conducted no use at the premises from October 19, 2010, until October 19, 2011.

In our orders of September 21 and September 27,2012 and opinion of October 9, 2012, at Case No. 4487 Civil 2010, (in the same case Judge Vican heard), we found that the defendant continued an adult business at the premises after October 19, 2011. We further found the defendant’s activities were again a violation of 68 Pa. C.S.A. 5503 (b) and (d) and ordered no further use of the premises for a period of one year. No appeal was taken. This court incorporated the record from case No. 4487 Civil 2010 into the hearing in this matter in the interest of judicial economy and by stipulation of the parties. Therefore, we recognize the findings in that case of both this court and Judge Vican.

By our opinion of October 9,2012, we specifically found in Conclusion of LawNo. 3 that defendant was operating as an adult-oriented establishment as defined at 68 Pa. C.S.A. §5502. In our Findings of Fact, we noted several examples of conduct occurring at the premises since October 2011 that constituted adult entertainment. The current Jackson Township ordinance, adopted October 13, 2011, provides a definition for adult entertainment at section 27-1602 that is substantially similar to the definitions set forth at 68 Pa. C.S.A. §5502. The activity and conduct this court found in its opinion of October 9, 2012 that constituted an adult business, is the same activity and conduct described in the Jackson Township Zoning Ordinance. Such activity is not allowed in any area other than the industrial zoning district. This is the same zoning requirement in place both before defendant’s use as an adult business, and after October 19, 2011 when defendant resumed its operation of the adult business.

It is also noted that the new Jackson Township ordinance defines “adult entertainment” as live entertainment where a person appears in a state of nudity. Nudity or state of nudity is defined in the ordinance as “the showing of the human male or female genitals or pubic area with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering or any portion thereof below the top of the areola.” See Section 27-1602. As we found in our opinion of October 9,2012, individual dancers and waitresses were showing the female breast with less than a fully opaque covering or any portion thereof below the top of the areola. Adult entertainment is included in the definition of an adult business. These activities clearly constituted use as an adult business after October 19, 2011, as defined by statute and the definition of the current Jackson Township Zoning Ordinance.

The evidence also showed defendant had no permit for its use as an adult business. Furthermore, defendant can make no claim for a non-conforming use as an adult business, nor was a non-conforming certificate issued for such a use. An adult business use was never permitted under the zoning ordinance in the zoning classification where the premises is located, either under the old ordinance or the new ordinance. Incorporating the record of4487 Civil 2010 and referencing the terms of the Jackson Township Zoning Ordinance, it is clear that defendant is violating the township zoning ordinance by operating an adult business.

Since the adult business use was a change in use that was not permitted, the plaintiffs request for relief to enjoin further violation of the township zoning ordinance is warranted. Due to the defendant’s change in use, and the fact such use was not permitted, the plaintiffs request to enjoin any further use as an adult business as defined in the township zoning ordinance is granted. As for any other non-permitted uses defendant may make at the property after September 27,2013, such conduct is better addressed in the discussion section of this opinion regarding count II of the complaint.

In count II of plaintiff’s complaint, the plaintiff asserts the defendant either ceased permitted activities at the premises, or never legally operated a permitted use because they never acquired a zoning permit. Plaintiff also argues the defendant abandoned any legal non-conforming use of the property and can only conduct uses allowed under the new zoning ordinance. As part of the zoning changes enacted in October 2011, the premises are now located in anR-1 (low density residential) zoning district. Previously, the zoning district for the premises was commercial. Plaintiff seeks to enjoin any use without defendant first obtaining a zoning permit. This relief would also address any other non-permitted use of the property.

Incorporating the record of case No. 4487 Civil 2010, and referencing the facts introduced in this case, defendant and/or its predecessor(s), used or occupied the premises as an eating and drinking establishment prior to operating an adult business. Such a use is permitted in the commercial zoning district under both the old and new ordinance. At the time of operation as an eating and drinking establishment, prior to defendant’s use as an adult business, the premises was zoned commercial.

Per the ruling of Judge Vican, the defendant changed the use to an adult business by operating an adult cabaret. While there continued to be eating and drinking, the court specifically found the use had changed. No change of use application was submitted. No non-conforming certificate was obtained. No zoning permit was issued for the adult business use. This change in use occurred prior to Judge Vican’s opinion of October 19, 2010 and the ensuing closure of defendant’s business for one year.

Defendant opened for business again after October 19, 2011. Defendant’s use as an adult business continued, at least until the summer of 2012 (per testimony at the hearings held in 4487 Civil 2010 and findings of this court therein). Defendant neither applied for a zoning permit nor a nonconforming certificate. In fact, defendant’s use as an adult business was not permitted, nor could a non-conforming certificate be issued, because the use was never permitted at the premises. Defendant never sought a zoning permit or a non-conforming certificate for any use at the property, and still had not done so at the time of hearing in this matter. This included the defendants’ alleged change of use back to an eating and drinking establishment.

The plaintiff asserts that due to the change in use as an adult business, defendant no longer has a permitted use as an eating and drinking establishment. That use was changed prior to Judge Vican’s ruling of October 19, 2010. To reestablish such a use, or any other use, plaintiff asserts the defendant must obtain a zoning permit. A zoning permit can only be issued for a permitted use, or one in which the party is entitled to by a valid non-conforming use. An eating and drinking establishment is no longer a permitted use at the premises. Plaintiff claims the prior use was abandoned and defendant cannot continue the prior use as a non-conforming use. As such, plaintiff argues defendant should be enjoined from operating for any purpose until a zoning permit is secured.

The defendant argues they have established a nonconforming use at the property as an eating and drinking establishment. At the very least, they contend they never stopped being an eating and drinking establishment, even while operating as an adult business. In support thereof, defendant points to the fact food and beverages were served at the premises, during the time it operated as an adult business (or adult cabaret).

Preliminarily, we note the claim of a non-conforming use is properly raised in an administrative proceeding at the Township Zoning Hearing Board, and thus, a defense of non-conforming use cannot be raised in an equity proceeding. See Pfeffer v. Hopewell Township, 431 A.2d 1149 (Pa. Cmwlth. 1981). Provided the zoning ordinance contains a procedure to secure a certificate of non-conforming use, that procedure is the proper method to litigate a right to a non-conforming use. Id. Here, the Jackson Township Zoning Ordinance has such a procedure, and the defendant should avail itself by that administrative process.

However, since the plaintiff seeks to enjoin any further use at the premises, including as an eating and drinking establishment (bar/restaurant), and the defendant contends they never stopped such a use, this court must analyze the issue further. Plaintiff contends the defendant changed (and therefore abandoned) a permitted use when it changed the use from a bar/restaurant to an adult business (adult cabaret) prior to Judge Vican’s October 19, 2010 opinion. Plaintiff asserts, and we agree, the defendant never obtained a permit for the change of use. Plaintiff states the use as a bar/restaurant was abandoned by the defendant, and such use is no longer permitted at the premises under the new ordinance. Plaintiff contends there is no non-conforming certificate of record or established non-conforming use. Therefore, plaintiff claims only uses conforming to the R-l zoning district are appropriate.

That may be correct; however, this court finds that such a determination should be made before the appropriate administrative body procedure set forth above. It is premature for this court to make findings with regard to abandonment of a use and non-conforming uses. The process dictates that the defendant seek a zoning permit for an intended use. The zoning officer then determines whether to issue the permit or not. The defendant then follows the administrative process of appealing the zoning officer’s decision.

What this court can review at this time is whether or not an injunction should be issued enjoining further use in the absence of a zoning permit. This court cannot issue declaratory relief where none is requested. Therefore, the issue for this court to decide is whether or not a zoning permit is needed before any further activity is conducted at the premises.

The testimony showed a change of use to an adult business. Judge Vican’s ruling and the ruling of this court in case No. 4487 CV 2010 confirmed this change. The defendant never sought a zoning permit. Therefore, for at least the last three (3) years, the defendant has operated without a zoning permit. During that time, a zoning permit was required for any change of use. Thus, even if defendant has now changed his use from an adult business to some other use, he must obtain a zoning permit under both the former and current zoning ordinance. It makes no difference that defendant chose to operate his business for a use that is not permitted at the premises (adult business), or that he has now changed it to one previously conducted at the premises. It also makes no difference that there was eating and drinking at the premises during the time defendant operated an adult business.

The defendant changed the use when it began operation as an adult business. The former and new zoning ordinance require a zoning permit for any change of use. The defendant failed to obtain a zoning permit when he allegedly changed his business back to a bar/restaurant from an adult business sometime in the summer of 2012. Any use he now makes, or will make in the future, will be a change in use, and requires a zoning permit under the ordinance. Therefore, it is proper to enjoin the defendant from any further use at the property until such time as it secures a zoning permit, in accordance with the zoning ordinance. Whether or not such use applied for by the defendant is permitted will be left to the zoning officer and any administrative procedures of the township.

ORDER

And now, January 25, 2013, following a hearing in this matter, it is ordered and decreed as follows:

1. Count I of the complaint seeking to enjoin the defendant from use of the premises as an adult business is granted.

2. Count II of the complaint seeking to enjoin the defendant from occupying or using the premises for any use until such time as a zoning permit is obtained is granted.

3. Defendant Dizzy Dottie, LLC, doing business as Thrills, is permanently enjoined from occupying or using the premises at Route 715 and Doll Road as an adult business. The Defendant Dizzy Dottie, LLC, doing business as Thrills, is also permanently enjoined from occupying or using the premises for any use until such time as a zoning permit is obtained from Jackson Township.

      . Judge Vican has since taken senior status and case No.4487 Civil 2010 was reassigned, together with this matter, to the Honorable David J. Williamson.

      . Per this court’s order of September 21 and 27, 2012, and opinion of October 9, 2012, defendant is already permanently enjoined from occupying or using any part of the premises for any purpose whatsoever for a period of one year from September 27, 2012 — September 27, 2013.

      . Defendant contended at hearing in this matter that they would, or already had, stopped use as an adult business only.


author: STEINBERG, J.,

text:
    Commonwealth v. Sampson

      C.P. of Lehigh County,
    No. CR-1082-2011.

      Charles Gallagher, for Commonwealth.

      Kimberly Makoul, for defendant.
    January 9, 2013
   STEINBERG, J.,

On November 21, 2011, the appellant, Isaah Sampson, was found guilty after a jury trial of Robbery (three counts), Attempted Criminal Homicide, Aggravated Assault (two counts), and Criminal Conspiracy to Commit Robbery. The appellant and two confederates, Hishamu Curry and Edward Maye, robbed the KNBT Bank in Emmaus at gunpoint. During the robbery, Edward Maye assaulted the assistant manager of the bank with a firearm, and in their flight to avoid apprehension, the appellant, Isaah Sampson, fired his weapon multiple times at Officer William Bryfogle of the Emmaus Police Department. Multiple bullets struck Officer Bryfogle’s cruiser, but he escaped uninjured.

A presentence report was ordered following the jury’s verdict. A full sentencing hearing was held on April 16, 2012, during which both the presentence report and the Sentencing Guidelines were considered prior to imposing sentence. At the conclusion of the sentencing hearing, the appellant received a total sentence of not less than thirty-three (33) years nor more than seventy (70) years in a state correctional institution.

Trial counsel requested that counsel be appointed to represent the appellant for appeal purposes, and this court did so on May 8, 2012. Prior to doing so, the appellant filed a pro se “defendant’s notice of appeal” which this court treated as a request for post-sentence relief pursuant to Pa.R.Crim.P. 720. Following the appointment of counsel, those motions remained undecided until the notes of testimony from the trial and related proceedings were transcribed, and new counsel considered filing a “supplemental post-sentence motion” pursuant to Pa.R.Crim.P. 720(B)(1)(b). On August 6, 2012, new counsel’s request for an extension pursuant to Pa.R.Crim.P. 720(B)(3)(b) was granted, and the post-sentence motion remained unresolved. Thereafter, the post-sentence motions were denied by “operation of law” pursuant to Pa.R.Crim.P. 720(B)(3)(b),(c). On October 4, 2012, a notice of appeal was filed by counsel. Pursuant to this court’s directive, counsel filed a Pa.R.Crim.P. 1925(b) statement. It is alleged that the evidence was insufficient to sustain the verdict, the verdict was against the weight of the evidence, and that it was error to permit the introduction into evidence of cell phone records and text messages secured from the cell phone found in the possession of Hishamu Curry, a co-conspirator.

Background

On December 30, 2010, at approximately 9:15 a.m., three (3) masked men with guns entered the KNBT Bank in Emmaus and exclaimed, “this is a robbery”. Two (2) of the three (3) jumped on the counter, and the third robber grabbed Michelle Andrews, the Assistant Manager, and forced her to the vault at gunpoint. When she reached the vault, he struck her in the head with his gun. Ms. Andrews fell to the floor, and then grabbed her sweater to stem the blood coming from her head. Ms. Andrews called-out for someone to open the vault, and Josephine Baba and Donna Grenauer, two (2) bank tellers, immediately responded. Both were unable to open the vault, and with that, one (1) or more of the robbers threatened: “Two more seconds and I’m going to start shooting if we don’t get the vault open.” Finally, Ms. Baba was able to open the vault, but by then the robbers had fled from the bank.

Minutes earlier, Ms. Grenauer was confronted at her teller station by one (1) of the robbers who was wearing a ski mask and hooded sweatshirt, and was carrying a duffle bag. He demanded that she put money in the bag and when she did not do so as quickly as he wanted, “he jumped on the counter and helped himself into the drawer and took money out himself.” Various denominations were removed, including a “pack in straps.” This was described as a GPS device.

Kathy Moyer, who was also atelier at the bank, observed the three (3) robbers enter the bank armed with guns, and wearing masks and gloves. She was confronted by one (1) of the robbers who placed a gun in her face and demanded money. This individual made it clear that he did not want “strap money.” Ms. Moyer gave him the money from her teller drawer. She was then led to the vault at gunpoint, where she remained with her fellow employees.

It was determined that eleven thousand five hundred and twenty-nine ($11,529) dollars was taken in the robbery. When the getaway car was later inventoried by the police, they discovered a black bag with money, as well as a GPS tracking device, which continued to ring in the 9-1-1 center until Detective Hoats deactivated it. The “strap money” had the initials “KM”, Kathy Moyer.

Officer William Bryfogle of the Emmaus Police Department was approximately a mile and a half away from the bank when he received a call of suspicious activity at the bank. He activated his emergency lights and siren, which also activated his on-board video camera, and proceeded to the bank. While doing so, he received further notification “that a GPS unit had activated from the inside of the bank on a money pack.” Further information communicated to him indicated that the transponder was signaling it was moving out of the bank.

He arrived at the bank approximately aminute or so later, and proceeded to the intersection of North 2nd Street and Green Street, which is an alley behind the bank. Initially, he did not observe any activity, but approximately ten (10) seconds later, he observed a vehicle enter the alley coming towards his patrol vehicle. The vehicle ignored the stop sign at 2nd and Green Street and continued eastbound. Officer Bryfogle turned his patrol vehicle behind the fleeing vehicle, and again activated his emergency lights and siren. He identified the vehicle as a blue Mercury with three (3) occupants wearing dark clothing.

The pursuit was continuing when Officer Bryfogle observed a “black handgun come out the back passenger window of the vehicle and point in [his] direction.” “Three shots [were] fired towards the front of [his] patrol vehicle approaching Main Street.” His vehicle was struck by these bullets, and a subsequent examination revealed bullet holes through the bumper, the lower plastic air vent, and the driver’s side front tire.

Officer Bryfogle continued his pursuit, and after turning onto Main Street, the Mercury put on its brakes, almost coming to a complete stop. The passenger in the rear of the vehicle continued to fire his “black semi-automatic handgun”, and with that, Officer Bryfogle rammed the back of the Mercury. The Mercury began to slow, and Officer Bryfogle tried to create some distance between the two vehicles as a precautionary measure. When the Mercury reached 1st Street, the back passenger exited the vehicle, and a little further down the street, the front passenger departed. Finally, while the vehicle was still “rolling”, the driver fled, and ran behind the back of the Mercury.

Officer Bryfogle, who was still in his patrol vehicle, followed the driver and bumped him with the front bumper of his patrol vehicle. Although the driver was knocked down, he jumped up, and Officer Bryfogle knocked him down a second time. Officer Bryfogle then exited his vehicle, and the driver jumped up again and began running. He continued to do so until he was struck by Sergeant Troy Schantz’s patrol vehicle. All of Officer Bryfogle’s testimony was captured by the on-board video from his patrol vehicle, which was introduced into evidence at trial.

Sergeant Schantz also responded to the bank, and as he approached the front of the bank, he heard communication from Officer Bryfogle that he was in pursuit of a vehicle. He also heard that shots were being fired at Officer Bryfogle. Sergeant Schantz returned to his patrol vehicle, and after making visual contact with Officer Bryfogle’s vehicle, he assisted in the pursuit of the Mercury. Sergeant Schantz also observed the occupants of the Mercury flee the vehicle, and assisted Officer Bryfogle in his pursuit of two (2) of the suspects. Sergeant Schantz struck the individual described as the driver of the Mercury, which caused that individual to fly onto the hood of Sergeant Schantz’s vehicle. The ski mask this individual was holding also landed on Sergeant Schantz’s windshield. Sergeant Schantz then hit his brakes, which caused that individual to then hit the pavement. While initially this individual seemed unconscious, he quickly regained consciousness and began fighting with Sergeant Schantz. He was subdued and handcuffed. A search of this individual revealed a Samsung, AT&T cell phone. He was identified as Edward Maye.

The front passenger, who was wearing a gray sweatshirt, scaled a fence at the Emmaus Maintenance Department garage area and disappeared. During a search at the fence, a black cloth glove was found attached to the top of the fence. On the ground, directly beneath the glove, a Hi-Point .380 caliber handgun was recovered.

The back passenger, who was in dark clothing, fled “south of South 1st Street”. Sergeant Schantz coordinated a search for the two (2) remaining suspects, and in following the path of the back passenger, discovered a myTouch T-Mobile cell phone, and a .40 caliber Smith & Wesson handgun. A firearms expert report was introduced by stipulation, and demonstrated that this was the weapon that discharged the bullets at Officer Bryfogle.

One of the responding officers was Budd Frankenfield of the Salisbury Police Department. He arrived shortly after Sergeant Schantz had Edward Maye on the ground and in custody. He received a description from Sergeant Schantz of one (1) of the fugitives, and began a search both by patrol vehicle and on foot. He eventually observed a black male wearing sweatpants and a hooded sweatshirt walk “northbound out of the tree line and [enter] the railroad tracks approximately seventy-five feet to [his] west.” Officer Frankenfield ordered the individual to stop, but the individual disregarded his instructions and fled in the opposite direction with Officer Frankenfield in pursuit. Sergeant Geschwindt from the Emmaus Police Department eventually got the bead on this individual and he was apprehended. This individual was the appellant, Isaah Sampson. Elowever, he told Sergeant Geschwindt that his name was “Andre”.

At the time of his apprehension, the appellant was wearing multiple layers of “very damp clothing”, including a blue hoodie and blue sweatpants with the Champion logo. He also had a ski mask which was recovered from the jacket that he was wearing The ski mask was pushed up on his head when he was taken into custody, and the appellant “stuffed” it into the pocket of his coat at Emmaus Police Headquarters. Still images from the bank reflect that one of the robbers was wearing a “dark in color, blue in color, Champion hooded sweatshirt”.

During the search of the Mercury, Detective Timothy Hoats not only discovered the black bag with the money from KNBT Bank, but also a Blackberry phone on the back seat. This cell phone, as well as the Samsung AT&T seized from Edward Maye, the HTC my Touch T-Mobile cell phone discovered with one (1) of the firearms near the getaway vehicle, and the Sanyo Boost Mobile phone which was recovered from the ground where Hishamu Curry was apprehended, were analyzed by Detective Jason Apgar. Detective Apgar was qualified as an expert in utilizing a universal forensic extraction device referred to as a Cellbrite machine. His expert testimony documented the retrieval of data from these cell phones.

Detective Apgar located “contacts and photos” on the my Touch T-Mobile cell phone. This cell phone was recovered along the path traveled by the back seat passenger. The first contact in the phone was Jenny Irrizary. When the appellant was interviewed by Detective Hoats, he told the detective that he resided with his mother and his girlfriend, “Jen Irrizary”. Extracted from this same cell phone were also photographs of the appellant. Other information was extracted from this cell phone, which linked it to the cell phone retrieved from Curry’s possession when he was apprehended.

The Curry cell phone was recovered at approximately 7:00 p.m. on the date of the robbery, when members of the Allentown Police Department cornered a vehicle in connection with this robbery. Lieutenant Glen Domey testified that after this vehicle was stopped, he exited his patrol vehicle with his gun drawn, and ordered Hishamu Curry to put his hands in the air. Lieutenant Domey approached the vehicle, opened the door, and removed Curry from the vehicle. Curry either had the cell phone on his person, inside a pocket or on his lap. As Lieutenant Domey pulled Curry from the vehicle, the cell phone “flew out of his lap area and onto the ground.” FBI Agent Alan Jones picked up the cell phone, and handed it to FBI Agent Thomas Neeson, who turned it over to Detective Apgar.

When Hishamu Curry was removed from the vehicle, he was less than cooperative, necessitating the use of force to handcuff him. Once the officers were able to take control of him, he told them, “Okay, you caught me.”

DetectiveApgar’sretrieval ofthetextmessages from the Curry cell phone demonstrated the planning of the robbery between Curry, Sampson, and Maye. In that regard, the Commonwealth utilized a composite of the three hundred and ninety-five (395) text messages retrieved from the Curry cell phone to show communications between all three (3) conspirators in the days leading up to and the day of the robbery. Additionally, Curry’s text messages in his flight to avoid apprehension were also part of the composite exhibit.

A review of the composite shows that number 484-560-5464 matches the phone number of the Samsung, which was recovered from Maye. Number 484-860-8898 matches the phone number of the Blackberry, which was recovered from the back seat of the Mercury. The my Touch cell phone, which was discovered with the Smith & Wesson handgun on the path the rear passenger fled, not only contained a contact card with the number 484-860-8898, but again, photographs of the appellant.

The one hundred and twenty-seven (127) text messages contained in Commonwealth Exhibit 67 use coded language and conversations. An example includes: “when u wanna strike a vault”, to which Curry replies “where”, and he in turn receives the reply “emmaus”. Following the robbery, Curry’s conversation with “Mizzy” is less coded:

Curry: In a world of trouble again!
Mizzy: U got me scared and my nerves r bad..I hope it aint nothin we can get u out of!!!!!
Curry: Hopefully not, but its bad bad bad sis!

Discussion

A. Sufficiency of the Evidence/Weight of the Evidence

The appellant’s initial claims pertain to the sufficiency of the evidence and the weight of the evidence. A review of the appellant’s Pa.R.A.P. 1925(b) statement fails to provide any detail regarding either of these challenges. The sufficiency claim merely alleges that the “Commonwealth failed to provide proof necessaiy to support a conviction of the charges.” The weight of the evidence allegation contains even less specific information. As a result, these claims are waived. Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008)(“[T]o preserve a claim that the evidence was insufficient, then the 1925(b) statement needs to specify the element or elements upon which the evidence was insufficient.”). The appellant’s challenge to the weight of the evidence is also waived because it was not raised as required by Pa.R.Crim.P. 607. See also Commonwealth v. Bryant, 2012 WL 5897735, *4 (Pa. Super. November 26, 2012).

Although the appellant’s claim is subject to a waiver analysis, these claims also fail on the merits. Challenges to the sufficiency of the evidence, or to the weight of the evidence, are distinct legal concepts. Commonwealth v. Davis, 799 A.2d 860, 864 (Pa. Super. 2002). A claim challenging the sufficiency of the evidence requires all the evidence admitted at trial to be viewed in the light most favorable to the verdict winner, who is also entitled to all reasonable inferences in its favor. Commonwealth v. Burkett, 830 A.2d 1034, 1037 (Pa. Super. 2003). In doing so, there must be “sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt.” Commonwealth v. Palo, 24 A.3d 1050, 1054 (Pa. Super. 2011) quoting Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007). However, the application of this test does not permit the evidence to be weighed nor is the judgment of the fact-finder substituted. “Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.” Id. at 1054-1055.

The appellant’s alternative argument that the verdict is against the weight of the evidence, is addressed to the discretion of the trial court. Commonwealth v. Chine, 40 A.3d 1239, 1241 (Pa. Super. 2012); Commonwealth v. Bozic, 997 A.2d 1211, 1233 (Pa. Super. 2010). A claim of this type “concedes that there is sufficient evidence, but nevertheless contends that the trial judge should find the verdict so shocking to one’s sense of justice and contrary to the evidence as to make the award of a new trial imperative.” Commonwealth v. Robinson, 834 A.2d 1160, 1167 (Pa. Super. 2003). See also Chine, at *4 quoting Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003)(“the evidence must be ‘so tenuous, vague and uncertain that the verdict shocks the conscience of the court.’”); Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa. Super. 2003).

Trial judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit as the thirteenth juror. Rather, the role of the trial judge is to determine that ‘notwithstanding all of the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.’

Commonwealth v. Widmer, 744 A.2d 745, 752 (Pa. 2000).

The appellant was apprehended within minutes after he and his confederates discarded the getaway car, and attempted to elude the authorities by foot. When he was apprehended, he was wearing clothing depicted in the bank surveillance footage, and in his possession was a ski mask. Each of the robbers was wearing masks when they entered the bank. Ms. Grenauer used the word “ski masks”.

The appellant’s apprehension was also not without incident. When Officer Frankenfield identified himself and told the appellant to stop, the appellant fled. He was eventually cornered by Sergeant Geschwindt and other officers. Thereafter, he complied with Sergeant Geschwindt’s verbal commands to get on the ground. When asked his name, he provided the false name, “Andre”.

Finally, not only were the recovered cell phones linked to each other, but also directly implicated the appellant. The my Touch T-Mobile cell phone, which was found with a firearm along the flight route of the back seat passenger, contained photographs of the appellant. Additionally, the My Contact Card in that cell phone has the appellant’s girlfriend as his first contact. It also has a contact number matching the Blackberry, which was found in the backseat of the getaway car.

The circumstantial evidence presented by the Commonwealth sustained its burden of proof. Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011) (The Commonwealth may meet its burden of proof through the use ofwholly circumstantial evidence); Commonwealth v. Lopez, 2012 WL 3195102, *4 (Pa. Super. August 8,2012) quoting Commonwealth v. Stays, 40 A.3d 160, 167 (Pa. Super. 2012)(“[T]he fact that the evidence establishing a defendant’s participation in a crime is circumstantial does not preclude a conviction where the evidence, coupled with reasonable inferences drawn therefrom, overcomes the presumption of innocence.”). See also Commonwealth v. Robertson, 874 A.2d 1200, 1206 (Pa. Super. 2005) (Appellant linked to robbery by blood of victim on jacket found in his residence, his placement near the scene of the crime at the approximate time of the attack, his possession of money without explanation, and his statement to a witness that he should not worry or talk about the money.); Commonwealth v. Mayo, 496 A.2d 824, 827 (Pa. Super. 1985)(Appellant wore a mask at the time of the robbery, but the witness was able to identify appellant on the basis of size, weight, hair, clothing, build, and knife found in appellant’s possession.); Commonwealth v. Turner, 410 A.2d 895 (Pa. Super. 1979)(The appellant was not identified by bank teller, but was captured running away from the scene of the crime a short time after robbery, with currency of the same denomination as taken in the robbery by his feet and in sneakers which were on the wrong feet.).

The appellant would contend that his presence in the Borough of Emmaus shortly after the robbery was coincidental. He would argue that the location of his apprehension, which was in the direction the back seat occupant fled, wearing clothing that matched the surveillance video footage, and carrying a ski mask could have happened to anyone. He would also suggest his flight and use of a false name does not connect him to the events at the bank and its aftermath. Finally, it is his position that photographs of him in the cell phone found with the firearm used to shoot at Officer Bryfogle does not prove he had the cell phone that date. This Court disagrees.

This mountain of circumstantial evidence refutes the appellant’s sufficiency and weight of the evidence claims. These various pieces of circumstantial evidence would allow a jury to find beyond a reasonable doubt that the appellant was a participant in the robbery and was the back seat passenger who fired at Officer Bryfogle. This is especially true when the evidence is viewed in the light most favorable to the Commonwealth.

Finally, it has been explained that “one of the least assailable reasons for granting or denying a new trial is the lower court’s conviction that the verdict was or was not against the weight of the evidence.” Widmer, 744 A.2d at 753. The verdict in this case was not against the weight of the evidence. It was not “so tenuous, vague and uncertain that it shocked [this Court’s] conscience”. Bozic, 997 A.2d at 1223.

The appellant’s other claim is that it was error to permit the introduction of the text messages and cell phone records. He is apparently relying on Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. 2011), appeal granted 44 A.3d 1147 (Pa. May 15, 2012). In Koch, thirteen (13) drug-related text messages were transcribed from the appellant’s cell phone and introduced into evidence at trial. It was argued that the text messages were not properly authenticated because there was no evidence that the appellant was the “author of the text messages, nor evidence that drug-related texts were directed to her because Commonwealth witnesses conceded that another person was using [her] phone at least some of the time.” Id. at 1002.

Following a review ofPa.R.E. 901(a) and caselaw from both Pennsylvania and other jurisdictions, it was held that the text messages were not properly authenticated, and constituted hearsay. Id. at 1005. “The detective’s description of how he transcribed the text messages, together with his representation that the transcription was an accurate reproduction of the text messages on Appellant’s cellular phone, is insufficient for purposes of authentication where the Commonwealth concedes that Appellant did not author all of the text messages on her phone....[T]hat authentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person. Circumstantial evidence, which tends to corroborate the identity of the sender, is required.” Id.

The text messages captured from Curry’s Sanyo cell phone do not present the same authentication issues raised in Koch. His authorship of most of the text messages cannot reasonably be disputed, especially in light of their content both prior to and subsequent to the robbery. The text messages provided a continuity of events leading up to the robbery of the KNBT Bank, as opposed to the drug-related text messages in Koch, which appear to be random and not interconnected. Additionally, the other persons, who were participants in the texting, are easily identified. Prior to the robbery, the other texting partners were either in possession of the cell phone recovered on Edward Maye, or in the getaway vehicle. Based on the evidence introduced at trial, that person was the back seat passenger, the appellant, Isaah Sampson.

Curry was also in possession of the Sanyo cell phone when he was apprehended. No testimony was presented that on the day of the robbery or the days leading up to the robbery, anyone else had possession of it. This is in sharp contrast to Koch, in which the Commonwealth conceded that another person used, the cell phone in question. Likewise, Curry’s contention at trial that the Sanyo cell phone which “flew out of [appellant’s] lap” was not in his possession is directly contradicted by the circumstantial evidence related to its recovery.

This is not a case in which authorship is based solely on evidence that the text message was sent from a cell phone assigned to an individual like Koch. Here, as opposed to Koch, there are “contextual clues” in the text messages which reveal the sender. Id. at 1005. For example, within hours of the robbery, the text messages on the Sanyo disclose that Curry is a wanted man, and he is fully aware that the police are attempting to apprehend him. See Rodriguez v. State, 273 P.3d 845, 849-850 (2012) citing Koch (collecting cases)(Circumstantial evidence corroborating the sender’s identity may include the context or content of the messages themselves, such as where the messages contain factual information or references unique to the parties involved.).

Pa.R.E. 901 demonstrates that evidence may be authenticated in a number of ways. In re F.P., 878 A.2d 91, 94 (Pa. Super. 2005) quoting Commonwealth v. Brooks, 508 A.2d 316, 319 (Pa. Super. 1986)(“A document may be authenticated by direct proof and/or by circumstantial evidence. [Pjroof of any circumstances which will support a finding that the writing is genuine will suffice to authenticate the writing.”)(intemal citations omitted). “[TJhe ultimate determination of authenticity is for the jury. A proponent of a document need only present a prima facie case of some evidence of genuineness in order to put the issue of authenticity before the factfinders.” Brooks, 508 A.2d at 320 (emphasis in original). In Tienda v. State, 358 S.W. 3d 633, 639 (Tex.Crim.App. 2012) (collecting cases), the many ways of authenticating electronic evidence was explained in pertinent part as follows:

Text messages have all been admitted into evidence when found to be sufficiently linked to the purported author so as to justify submission to the jury for its ultimate determination of authenticity. Such prima facie authentication has taken various forms.... Sometimes the communication has contained information that only the purported sender could be expected to know. Sometimes the purported sender has responded to an exchange of electronic communications in such a way as to indicate circumstantially that he was in fact the author of the particular communication.... And sometimes other circumstances, peculiar to the facts of the particular case, have sufficed to establish at least a prima facie showing of authentication.

Id. at 639-640.

Here, Curry’s possession of the Sanyo cell phone, the exchange of text messages between Curry and cell phones either seized from a conspirator or the getaway car, and the substance of the text messages, all provide the threshold necessary for authentication. All of the cell phone activity between Curry and the other cell phones ends immediately prior to robbery, when presumably the three (3) conspirators are on their way to the bank together. Additionally, the absence of text messages after the robbery demonstrates the cell phones were in police custody. Finally, the text messages after the robbery with “Mizzy”, whom Curry calls “sis”, and an unidentified female who calls him “Moe”, leave little doubt that Curry is attempting to avoid apprehension. Two (2) of the last text messages Curry received was “They knoüü!” and “They got my whole fam ynder survailance [sic]...u gotta bounce asap!!!”

The substance of the text messages was also admissible under the co-conspirator exception to the hearsay rule. Pa.R.E. 803(25)(E)(“A statement by a co-conspirator of a party during the course and in furtherance of the conspiracy”). Three (3) requirements must be established: (1) the prosecution must prove the existence of a conspiracy between the declarant and the defendant against whom the evidence is being offered; (2) the Commonwealth must show that the statements were made during the course of the conspiracy; and (3) the Commonwealth must show that the statements were made in furtherance of the common design. Commonwealth v. Holton, 906 A.2d 1246, 1251 (Pa. Super. 2006)(citations omitted) (Statements made by drug buyer were admissible under co-conspirator exception to hearsay rule.).

The circumstances of this bank robbery, i.e. three (3) masked men with guns who proceed to threaten bank employees in the course of spiriting away with over eleven thousand dollars, adequately shows the three (3) were acting in concert. The text messages from cell phones identified and seized from Curry, Maye, and the Mercury not only prove the existence of the conspiracy, but the identity of the declarants by a “fair preponderance of the evidence.” Id. Each of the text messages precede the bank robbeiy and are evidence of discussions regarding their planning of the robbery. For example, the text messages describe their intentions to “strike a vault”, and where it was to take place, i.e. “emmaus”. The text messages also discuss the possession of a getaway car and weapon, i.e. “i got a wheel u got a tool so tell me”. Each of these statements was made in furtherance of the common design which included what time and where the participants would meet on the day of the robbery.

Finally, the text messages that were made after the robbery constitute admissions by Curry. See Rule 803(25) (A); Commonwealth v. Edwards, 903 A.2d 1139, 1157-1158 (Pa. 2006), cert, denied 127 S.Ct. 2030 (2007). In that regard, “voluntary, extrajudicial statements made by a defendant may be used against [him] although they contain no admission of guilt. Commonwealth v. Tervalon, 345 A.2d 671, 676 (Pa. 1975); Commonwealth v. Jones, 247 A.2d 624, 627 (Pa. Super. 1968)(Guilty knowledge recognized by statement “we could get in a lot of trouble over it.”); State v. Pindale, 592 A.2d 300, 309-310 (N.J. Super. 1991)(The conduct of a defendant subsequent to the commission of a crime is relevant when the conduct in question indicates a consciousness of guilt.). Even so, Curry’s attempt at evading capture was still part of the on-going conspiracy. Commonwealth v. Chester, 587 A.2d 1367, 1374-1375 (Pa. 1991)(Statements made after murder to third parties were properly admitted under the co-conspirator exception to hearsay rule); see also Commonwealth v. Lambert, 603 A.2d 568, 575 (Pa. 1992) (Statement falls within co-conspirator exception because it was part of the conspiracy dealing with flight from the scene).

For all the foregoing reasons, the judgment of sentence should be affirmed.

ORDER

Andnow, January 9,2013, it appearing that the appellant has filed a notice of appeal in the above-captioned matter; it further appearing that the appellant has filed a “Concise Statement of Reasons Complained of on Appeal” pursuant to Pennsylvania Rule of Appellate Procedure 1925(b); it further appearing that our accompanying opinion satisfies the requirements of Pennsylvania Rule of Appellate Procedure 1925(a);

It is hereby ordered that the Clerk of Courts, Criminal Division, shall transmit the record in the above-captioned matter to the Superior Court forthwith;

It is further ordered that the Clerk of Courts shall include with the transmittal of the record the following documents:

1. Notes of Testimony from Pretrial Motions held June 20, 2011.
2. Notes of Testimony from Motions in Limine held November 14, 2011.
3. Notes of Testimony from the Trial held November 15, 2011 to November 19, 2011.
4. Notes of Testimony from the Sentencing held April 16, 2012.
5. A copy of the appellant’s Pre-Sentence Investigation Report for review by the Superior Court, and that said report shall be sealed to preserve its confidentiality pursuant to Pa.R.Crim.P. 703.

      . 18 Pa.C.S. § 3701(a)(1)(H).

      . 18 Pa.C.S. §2501, §901.

      . 18 Pa.C.S. §2702(a)(l), (2).

      . 18 Pa.C.S. §3701 (a)( 1 )(ii), §903.

      . The appellant received three (3) concurrent sentences of not less than ten (10) years nor more than twenty (20) years for the three (3) counts of Robbery. He also received a consecutive sentence of not less than ten (10) years nor more than twenty (20) years for the Attempted Homicide and Aggravated Assault charges pertaining to Officer Bryfogle. Both of those charges were imposed concurrently with each other. He also received a consecutive sentence of not less than three (3) years nor more than ten (10) years for the Aggravated Assault charge involving Michelle Andrews, the Assistant Bank Manager. Finally, the appellant received a consecutive sentence of not less than ten (10) years nor more than twenty (20) years for the charge of Criminal Conspiracy to Commit Robbery. Notes of Testimony, Sentencing (hereinafter N.T.S.), pp. 43-46.

      . The appellant filed his pro se motion on May 1, 2012, which is technically beyond the ten (10) day time limit in Pa.R.Crim.P. 720(A). However, the post-mark on the envelope was dated April 24, 2012, and pursuant to the “prisoner mailbox rule”, it was a timely filed post-sentence motion. See Commonwealth v. Chambers, 35 A.3d 34, 38-39 (Pa. Super. 2011) quoting Commonwealth v. Jones, 700 A.2d 423, 425 (Pa. 1997). Due to the appointment of new counsel, and the lack of. prejudice to the appellant by doing so, the pro se document was treated as a post-sentence motion. It was also unclear from appellant’s motion whether he was requesting action pursuant to Pa.R.Crim.P. 720(A)(1) or 720(A)(3).

      . On November 21, 2012, the Clerk of Judicial Records denied the post-sentence motion, and technically pursuant to Pa.R. Crim.P. 720(A)(2) (b), counsel had thirty (30) days from that date to file a Notice of appeal. However, counsel filed the appeal within thirty (30) days after the 120 day deadline with the thirty (30) day extension expired, (approximately September 24, 2012).

      . Sanyo Model SCP 2700. Notes of Testimony, Trial (hereinafter N.T.T.), 11/17/11, p. 266.

      . N.T.T., 11/16/11, pp.25, 50.

      . N.T.T, 11/15/11, pp. 97, 99.

        .Id. atpp. 99-100;N.T.T., 11/16/11,pp. 14, 17, 59.

      . Id. atp. 101; N.T.T., 11/16/11, pp. 39, 59.

      . N.T.T., 11/16/11, pp. 15-16.

      . Id. at pp. 26-27.

      . Id. atpp. 27-28.

        .Id. atpp.27-33.

      . Id. atpp. 49-50, 66-67.

      . N.T.T., 11/16/11, pp. 50, 64.

      . Id. atpp. 58-60.

      . Id. at pp. 42, 57-58.

      . N.T.T., 11/17/11, pp. 201-205.

      . N.T.T., 11/16/11, p. 83.

        .Id. atpp. 84, 161.

        . Id. atp. 92.

      . N.T.T., 11/16/11, p. 95.

      . Id. at p. 96.

        . Id. atpp. 117-119; N.T.T., 11/18/11, pp. 177-180.

      . N.T.T., 11/16/11, pp. 97-98.

      . Id. at p. 99.

      . N.T.T, 11/16/11, pp. 175-176, 178, 190.

        . Id. atpp. 190,215.

      . Id. atpp. 131, 170-171,214,217-219; N.T.T., 11/17/11, p. 72.

      . N.T.T., 11/16/11, pp. 177,235-236,239.

      . N.T.T., 11/16/11, pp. 191-192, 197, 199-200,202.

      . Id. atp. 254.

      . Id. at pp. 255-260.

      . Id. atpp. 259-260, 287-289.

      . Id.

      . Id. atp. 290.

      . N.T.T., 11/17/11, p. 46.

      . Id. at pp.58-60.

      . Id. at pp. 44, 60, 125.

      . N.T.T., 11/18/11, pp. 168-169.

      . N.T.T., 11/17/11, pp. 206,208.

      . N.T.T., 11/17/11, pp. 244-251,263.

      . N.T.T., 11/18/11, pp. 47-48,51.

      . N.T.T., 11/17/11, p. 214.

      . N.T.T., 11/18/11, pp. 56-58.

      . Id. at p. 78.

      . Id. at pp. 147-148.

      . N.T.T., 11/18/11, pp. 22-23, 28-29.

      . N.T.T., 11/17/11, pp. 147, 151.

      . See Commonwealth Exhibit 67, which is attached to this opinion as Exhibit A.

      . N.T.T., 11/18/11, p. 43.

      . Commonwealth Exhibit 67, #39-#106, #152, #155-#160, #307-#320.

      . N.T.T., 11/18/11, p. 45.

      . Id. See also Commonwealth Exhibit 67. #151, #153-#154, #282-#289, #321-#328.

      . N.T.T., 11/18/11, pp. 52-59.

      . Commonwealth Exhibit 67, #41-#45.

      . 1925(b), ¶ 1.

      . The appellant, in his pro se document, contends that he was a “victim of mistaken identity”. Trial counsel at the close of the Commonwealth’s case-in-chief made a motion for judgment of acquittal only regarding the attempted murder charge. N.T.T., 11/18/11, pp.218-220. Trial counsel’s motion was denied and if considered on appeal is withoutmerit. See Commonwealth v. Jones, 629 A.2d 133, 136 (Pa.Super. 1993)(A reasonable jury could infer that the lead projectile that struck officer’s squad car, narrowly missing his vital organs, was intended to kill the officer); Commonwealth v. Harris, 169 A.2d 576 (Pa. Super. 1961)(Shots fired at officer sitting in a police car sufficient to establish intent to kill even though none of the shots struck the officer). Likewise, poor aim does not constitute a lack of malice. Commonwealth v. Manley, 985 A.2d 256, 272 (Pa.Super. 2009).

      . N.T.T., 11/18/11, pp. 47-51.

      . Id. atpp. 52-53, 59.

      . Motions in limine, 11/14/11, pp. 21-59; N.T.T., 11/17/11, pp. 335-339; N.T.T., 11/18/11, pp. 10-17.

      . Commonwealth Exhibit 67, #387, #394.

      . Commonwealth Exhibit 67, #41, #45.

      . Id. at #97.

      . Id. at#315-#328.

      . It is unclear if the appellant is presenting a Crawford v. Washington, 541 U.S. 36 (2004) challenge. If so, similar contentions have been rejected because the text messages are not “testimonial”. These text messages are also integrated with each other and provide the context for the robbery. See U.S. v. Hendricks, 395 F.3d 173, 184 (3d Cir. 2005); see also U.S. v. Peak, 2006 WL 1030226 (E.D. Pa. April 18, 2006).