author: MINORA, J.,

text:
    Montana v. Oakford Wood Homeowners Ass’n.

      C.P. of Lackawanna County,
    No. 2012-CV-236.

      Thomas E. Brenner, for plaintiff.

      George W Vokolos and Maureen E. Kelly, for defendants.
    April 1, 2013
   MINORA, J.,

The issue before the court is defendant’s motion for leave to join additional defendant Scranton Craftsman. For the reasons that follow, the motion is granted.

HISTORY OF THE CASE

This case arises from a sewer line leading from the Montana home becoming backed up resulting in property damage to the home on January 19, 2010. Plaintiffs’ complaint, filed on June 4, 2012, alleges that during the repairs and cleanup it was determined that the sewer line leading to plaintiffs’ home had not been properly connected or constructed in the street allowing for a leak and backup of the sewage into the home. The complaint alleges that damage and losses in the amount of $19,134.88 were incurred by plaintiffs.

On November 13, 2012, defendants David M. Epstein and Waverly Development Associates, Inc. filed a motion for leave of court to join Scranton Craftsmen, Inc. as an additional defendant. Defendants assert that it was not until the suit was commenced and the specific details of the incident were discovered that moving defendants’ learned that the general contractor for the Oakford Woods Development, Scranton Craftsmen, Inc., could possibly be held responsible. Defendants contend that if the incident occurred as alleged by plaintiffs, then the incident was due in whole or in part to the acts and/or omissions of Scranton Craftsmen, Inc., who was responsible for the installation and maintenance of the sewer system. Moving defendants also claim that there will be no unfair prejudice or hardship on any of the parties to this claim, or Scranton Craftsmen, Inc. should the joinder be allowed. Plaintiffs filed a response to defendants’ motion to join additional defendant on January 10, 2013. Plaintiffs concur with defendants request to join Scranton Craftsmen, Inc. as an additional defendant in this matter.

Scranton Craftsmen, Inc. filed a brief opposing the motion of defendants Epstein and Waverly Development for leave of court to join on February 4, 2013. Scranton Craftsmen argues that the proposed joinder should be stricken as out of time. Craftsmen claims that the parties knew who the general contractor was at the time the complaint was filed because they where both parties to the agreement dated thirteen years ago. Craftsmen asserts that because of this there is no reasonable excuse for the delay in commencing the joinder proceedings. Furthermore, Craftsmen claims that defendants have failed to prove that their proposed joinder is based upon proper grounds and that this delay is prejudicial to Craftsmen in that it impairs their ability to investigate what company or entity did any work on the plaintiffs’ home and sewer system back in January of 2010.

LEGAL STANDARD

Pennsylvania Rule of Civil Procedure 2253 states:

“(a) Except as provided by Rule 1041.1 (e), neither a praecipe for writ to join an additional defendant nor a complaint if the joinder is commenced by complaint, shall be filed later than (1) sixty (60) days after the service upon the original defendant of the initial pleading of the plaintiff or any amendment thereof, or (2) the time for filing the joining party’s answer as established by Rule 1026, Rule 1028 or order for the court, whichever is later, unless such filing is allowed by order of the court or by the written consent of all parties approved by and filed with the court.”

Pa. R.C.P. 2253.

Under Pennsylvania case law, whether there is sufficient cause to allow late joinder of an additional defendant is a matter within the sound discretion of the trial court. Mutual Industries, Inc. v. Weinberg, 423 Pa. Super. 328, 621 A.2d 140, 143 (1993). Joinder should be granted when it can simplify and expedite the disposition of the matters involving numerous parties without subjecting the original plaintiff to unreasonable delay in the prosecution of his portion of the litigation. Lawrence v. Meeker, 717 A.2d 1046, 1048 (Pa. Super. 1998) (quoting Zakian v. Liljestrand, 438 Pa. 249, 256, 264 A.2d 638, 641 (1970)). Although the court may consider the potential prejudice to the proposed additional defendant, the limitations on joinder are primarily intended to protect a plaintiff from being unduly delayed in prosecuting his action. Lawrence at 1048. Herein the plaintiff concurs in moving defendants’ motion to join.

Prior to 2005, Pennsylvania Rule of Civil Procedure 2253 provided that the joinder of an additional defendant had to be filed no “later than sixty (60) days after the service upon the original defendant of the initial pleading of the plaintiff or any amendment thereof unless such filing is allowed by the court upon cause shown.” Prime Properties Development Corporation v. Binns, 397 Pa. Super, at 499, 580 A.2d at 408 (1990). When requesting a belated joinder under former Rule 2253, the party seeking to join an additional defendant was required to show (1) that joinder was based on proper factual grounds of potential liability, (2) that some reasonable excuse existed for the delay in filing the joinder request, and (3) that the late joinder would not be prejudicial to the plaintiff or the proposed additional defendant. Kovalesky v. Esther Williams Swimming Pools, 345 Pa. Super. 95, 103, 497 A.2d 661, 665 (1985). Under the prior practice, the burden of demonstrating sufficient “cause” to allow late joinder of an additional defendant rested with the defendant, who was required to “establish some reasonable justification for the delay.” White v. American Honda Research of America, 403 Pa. Super. 584, 587, 589 A.2d 764, 766 (1991). It should be noted that moving defendants have relied on this earlier version of Pa. R.C.P. 2253 in their present motion.

The current version of Rule 2253, effective January 6, 2005, changes the burden applicable to a defendant seeking to join an additional defendant beyond the sixty day period prescribed in subdivision (a) of Rule 2253. In its present form, Pa. R.C.P. reads in pertinent part:

(b) Any party may object to a motion to join an additional defendant after the period prescribed...on the ground that the party will be prejudiced by the late joinder. The plaintiff may also object to the late joinder on the ground that the joining party has not shown a reasonable justification for its delay in commencing joinder proceedings.
(c) A person not previously a party who is joined as an additional defendant may object to the joinder by filing preliminary objections asserting prejudice or any other ground set forth in Rule 1028.

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

The current version of Rule 2253 deletes the “upon cause shown” requirement, and subsection (b) now merely entitles the plaintiff to object to the belated joinder on the basis that the moving party has failed to demonstrate a “reasonable justification for its delay in commencing joinder proceedings.” Any other party, including the party who is joined as an additional defendant, may object only on the grounds of prejudice. Pa. R.C.P. 2253(b), (c). However, the term “prejudice” in this context “does not mean the normal prejudice that always follows joinder in a lawsuit” and instead requires “a detriment independent of that,” such as the inability to conduct discovery due to joinder on the eve of trial or the destruction of material evidence during the period of delay. 7 Goodrich Amram 2d §2253:10. As indicated by the explanatoiy comment accompanying the 2005 amendments to Rule 2253:

New subdivision (b) governs the procedure by which a party may object to a proposed late joinder of an additional defendant. Any party may object to the motion to join on the ground of prejudice. However, only the plaintiff may object on the ground of the absence of some reasonable justification for the delay in commencing the joinder proceeding. The reasonable justification standard is the same as the cause shown standard of Rule 2253 prior to the present amendment.

Pa. R.C.P. 2253, Explanatory Comment (2005).

In opposing moving defendants’ motion for leave to join, Scranton Craftsmen points out that this motion, filed on November 13, 2012, came five months after the filing of the complaint and two and a half months following the filing of the amended complaint. Scranton Craftsmen asserts that there is no rationale for such a delay when there exists an agreement between Waverly Development and Scranton Craftsmen, dated May 1999 which they attach to their brief. Scranton Craftsman claims that this agreement shows that moving defendants knew who the general contractor was since they were both parties to the agreement. Scranton Craftsmen maintains that this evidence is proof that moving defendants cannot demonstrate that some reasonable excuse exists for the delay in commencing its joinder proceedings, as required under Pa. R.C.P. 2253. However, this assertion is in error, both factually and legally. First, simply because a party may recall the existence of a contract does not mean they can appreciate the presence of legal responsibility. Also, under the current version of Rule 2253, only the plaintiffs may object on such grounds, and all other parties, including Scranton Craftsmen, may object only on the grounds of prejudice. Pa. R.C.P. 2253(b), (c). As stated earlier, the plaintiff concurs with moving defendants’ motion to join.

Scranton Craftsmen does object on such grounds stating that prejudice exists because the delay impairs their ability to investigate what company or entity did work on the plaintiffs’ home and sewer system back in January of 2010 and just prior to January of 2010. In Prime Properties Development Corp., the court found that prejudice from late joinder exists where “the case is already listed on the trial list, and any discovery, whether depositions, including the deposition of additional defendant himself, or photographs, was obtained without the best interests of additional defendant in mind,” the additional defendant “was not represented by counsel when his deposition was taken,” and he “cannot go back and obtain his own photographs of the allegedly faulty framing which no longer exists.” Prime Properties Development Corp., at 506. In the present case, the record reflects that the parties’ pleadings have not yet closed and discovery has not even been initiated. Nor have any depositions been scheduled by the parties. Thus, there is no potential risk of delay attributable to the need for newly joined parties to reconduct discovery that has already been completed.

Absent such prejudice, Scranton Craftsman has not articulated any ground for disallowing its late joinder under Rule 2253(b). In light of the lack of any objection by plaintiffs regarding moving defendants’ reasonable justification for their delay in joining Scranton Craftsmen, the motion to join additional defendant is granted.

An appropriate order follows.

ORDER

Accordingly, April 1, 2013 defendant’s motion for leave to join additional defendant Scranton Craftsman is granted.


source: Caselaw Access Project

license: Public Domain

text:
    Marjer, Inc. v. Ligus.

      C.P. of Lackawanna County,
    No. 09-CV-6677.

      William E. Vinsko, Jr., for plaintiff.

      Lauren R. Tabas, for defendant.
    April 5, 2013
   MINORA, J.,

INTRODUCTION

U.S. Bank National Association, as Trustee for Credit Suisse First Boston Heat 2005-7 (hereinafter “U.S. Bank”) brings this motion for summary judgment in response to plaintiff’s quiet tile action against prior owner, defendant Claudia Ligus (“defendant”), and all persons claiming any right, title and interest in the land seeking to divest their interests in the property at issue. The motion for summary judgment is granted.

FACTUAL SUMMARY

On July 29, 2005, defendant made, executed, and delivered a mortgage upon the property located at 2115 Hamlin Highway, Route 590, Madison Township, PA 18444 to Mortgage Electronic Registration Systems, Inc. (“MERS”), nominee for Decision One Mortgage Company, LLC (“Decision One”). Details regarding identifiers for the property and actions taken by the parties related to it are listed in the chart following this paragraph. In sum, the mortgage was validly assigned from decision one to MERS, and thereafter, validly assigned from MERS to U.S. Bank instituted an action in mortgage foreclosure of which plaintiff had constructive notice, the foreclosure sale was postponed on three occasions while U.S. Bank worked with plaintiff regarding plaintiff’s short sale proposal. During the short sale discussion period, plaintiff filed this action to quiet title. Temporally, it appears that plaintiff’s communication with U.S. Bank regarding the short sale proposal could have been plaintiff’s attempt to delay the foreclosure sale so that plaintiff could then purchase the property and have tax title. Plaintiff purchased the property at a private tax sale by the Lackawanna County Tax Bureau. U.S. Bank thereafter purchased the property in a sheriff’s sale of which plaintiff had constructive notice. Additional details and chronology of actions taken related to the property are as follows:

Action Taken Related to the Property at 2115 Hamlin Highway, Route 590, Madison Township, PA Date Instrument No. for the Propery at 2115 Hamlin Highway, Route 590, Madison Township, PA 18444

Defendant Ligus executed a mortgage ($80,902.00) to MERS, where MERS was nominee for Decision One Mortgage Company LLC July 29,2005 Instrument No. 200524188

Defendant defaults on the mortgage Since April 1,2008 and each month continuously thereafter Instrument No. 200524188

Valid assignment of Mortgage from Decision One to MERS Mortgage recorded on Sept. 6,2005 (Lacka. Co.) Instrument No. 200524188

Valid assignment of mortgage from MERS to U.S. Bank Assignment of Mortgage on Aug. 6, 2008. Mortgage recorded on September 4, 2008 (Lacka. Co). Instrument No. 200822057

U.S. Bank files Complaint in Mortgage Foreclosure July 25,2008 (Lacka. Co.) Instrument No. 200524188 (Docket No. 2008-CV-5018)

Mortgage Foreclosure Complaint served on Defendant Jan. 5,2009 Instrument No. 200524188 (Docket No. 2008-CV-5018)

Default Judgment entered against Defendant Feb. 19, 2009 Instrument No. 200524188

Plaintiff purchases property at Lackawanna County Tax Bureau private tax sale pursuant to 72 P.S. §5860.613. Plaintiffhas constructive notice of both the mortgage and the pending foreclosure at the time of this sale. Feb. 24, 2009. Recorded on April 6,2009 Instrument No. 200907960

U.S. Bank files writ of execution in foreclosure action and lists the property for Sheriff’s sale Mar. 16,2009. At this time, Sheriff’s sale is scheduled for June 2,2009 Instrument No. 200524188

Sheriff’s Sale postponed due to Plaintiff’s conversations with U.S. Bank about Plaintiff’s short sale proposal Sheriff’s sale re-scheduled for July 21,2009 Instrument No. 200524188

Sheriff’s sale postponed a 2nd time Sheriff’s sale re-scheduled for Oct. 6, 2009 Instrument No. 200524188

Plaintiff files this action to quiet title in the property Oct. 6, 2009 Instrument No. 200524188

Sheriff’s sale postponed a 3rd time Sale re-scheduled for Jan. 26,2010 Instrument No. 200524188

Lackawanna County Sheriff’s sale. Sheriff of Lackawanna County sells property to U.S. Bank Jan. 26, 2010. Recorded April 26, 2011 (Lacka. Co.) For the property with Instrument No. 200524188. (Sale Instrument No. 201108376)

PROCEDURAL SUMMARY

U.S. Bank filed its motion for summary judgment with brief on October 1, 2012. Plaintiff’s response to the motion for summary judgment and memorandum of law in support of the response were filed December 3,2012. U.S. Bank filed a supplemental brief in support of its motion for summary judgment on December 14, 2012.

LEGAL ARGUMENT OF THE PARTIES

Defendant’s Argument

a. U.S. Bank is Entitled to Summary Judgment as a Matter of Law

Plaintiff cannot provide any legal justification for the quiet title relief request. Judgment must be entered in U.S. Bank’s favor and plaintiff’s complaint, dismissed.

b. Plaintiff Purchased the Property Subject to U.S. Bank’s Filed Mortgage and Pending Foreclosure Action.

Therefore Plaintiff Cannot Proceed in this Quiet Title Action as U.S. Bank’s Lien is Not Divested by Plaintiff’s Tax Sale.

Plaintiff purchased the property subject to U.S. Bank’s mortgage and is responsible for the debt due thereon. Properties sold pursuant to 72 P.S. §5860.613 are nonjudicial and sold subjectto every lien of record not otherwise included in the Tax Claim Bureau’s debt. Plaintiff fails to provide any statute or legal basis that entitles plaintiff to have the liens encumbering it divested, stricken from the record or otherwise marked satisfied.

c. Plaintiff has No Standing to Attack U.S. Bank’s Mortgage and Has Failed to do so Timely

Plaintiff cannot collaterally attack the foreclosure, mortgage and sheriff’s sale in a separate quiet title action. Plaintiff failed to take any action regarding the filed mortgage nor did plaintiff act during the pendency of the foreclosure action, both of which plaintiff had constructive notice. Later entry of the final judgment in the mortgage foreclosure action, the sheriff’s sale, and the sheriff’s deed have not been vacated nor formally challenged.

Plaintiff’s Argument

a. Assignment of the Mortgage to U.S. Bank is Illegal Under Pennsylvania Law

The assignment by MERS to U.S. Bank is invalid because MERS did not have the authority to assign the decision one mortgage to U.S. Bank or to any third party.

b. U.S. Bank Has No Standing in this Quiet Title Action Because of the Invalid Assignment

Since the assignment of mortgage from MERS to U.S. Bank was invalid, U.S. Bank’s authority to proceed in the matter and U.S. Bank’s foreclosure action is void. U.S. Bank knew of the private tax sale but did not object to the sale and therefore has no standing.

LEGAL STANDARD

Motion for Summary Judgment

When deciding a motion for summary judgment, the rules require that there be no genuine issues of material fact as to a necessary element of the defense which could be established by additional discovery and that the moving party be entitled to judgment as a matter of law. Deutsche Bank Nat. Trust Co. v. Smith, 2010 WL 2940767 (Delaware Co. July 22, 2010) (citing Pa. R.C.P. 1035.2 (1)); Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010). A material fact is one that directly affects the outcome of the case. Kuney v. Benjamin Franklin Clinic, 751 A.2d 662, 664 (Pa. Super. 2000). A proper grant of summary judgment depends upon an evidentiary record that either: 1) shows that the material facts are undisputed; or 2) contains insufficient facts to make out a prima facie cause of action or defense and therefore, there is no issue to submit to the jury. Gateway Towers Condominium Ass’n v. Krohn, 845 A.2d 855, 858 (Pa. Super. 2004); Beal Bank v. PIDC Financing Corp., 2002 WL 31012320, (Phila. Co. Sept. 9, 2002) (citing Kirby v. Kirby, 455 Pa. Super. 96, 103, 687 A.2d 385, 388 (1997); Dudley v. USX Corp., 414 Pa. Super. 160, 169-70, 606 A.2d 916, 920 (1992)); See also Pa. R.C.P. 1035.2.

The record must be viewed in the light most favorable to the non-moving party and any doubt must be resolved against the moving party. First Wisconsin Trust Co. v. Strausser, 653 A.2d 688, 691 (Pa. Super. 1995); Deutsche Bank Nat. Trust Co. v. Smith, 2010 WL 2940767, supra. A nonmoving party in a summary judgment motion may not rely merely upon allegations in pleadings, or his answers to survive summary judgment, but must set forth specific facts by way of affidavit or in some other way to demonstrate that genuine issue of material fact exists. Banks v. Trustees of University of Pennsylvania, 666 A.2d 329 (Pa. Super. 1995); See also Pa. R.C.P. 1035. 2; JP Morgan Chase Bank, N.A. v. Murray, 2013 WL 1092850 (Pa. Super. 2013); Aurora Loan Services LLC v. Molina, 2008 WL 8745691 (Monroe Co. Oct. 8, 2010).

The Philadelphia County Court of Common Pleas has reviewed motions for summary judgment in the context of mortgage assignments. In Credit-BasedAsset Servicing and Securitization LLC v. Simeon, 2003 WL 25429425 (Phila. Co. Apr. 4,2003) (hereinafter “Simeon”), appellee filed an action to foreclose on appellant’s property and later filed a motion for summary judgment. Appellee’s motion was dismissed due to appellee’s failure to provide proof of the assignment of the mortgage or other evidence to support its standing to bring the underlying claim in foreclosure. Appellee later provided proof of history of assignments of the mortgage, including an assignment to appellee, in an answer to appellant’s motion for summary judgment. The court therefore determined there was therefore no genuine issue of material fact. It denied appellant’s motion for summary judgment and granted appellee’s counter motion for summary judgment. Simeon, 2003 WL 25429425 (Phila. Co. Apr. 4, 2003).

Action to Quiet Title

Pursuant to Pa.R.C.P. 1061(b), a quiet title action may be brought to determine any title or interest in property or to obtain possession of land sold at a judicial tax sale. See, Community Bank & Trust Co., v. Marjer, Inc., No. 09-CV-8822 (hereinafter, “Marjer, 09-CV-8822”) at 9; Pa.R.C.P. 1061(b)(2), (4). “To prevail in an action to quiet title, the plaintiff must demonstrate prima facie title by a fair preponderance of the evidence, which proof is sufficient until better title is shown to exist in an adverse party.” Id. (citing Poffenberger v. Goldstein, 776 A.2d 1037, 1041 (Pa. Cmwlth. 2001)). “The plaintiff’s possession of the property is a jurisdictional prerequisite to an action to quiet title.” Marjer, 09-CV-8822 at 9 (citing Bride v. Robwood Lodge, 713 A.2d 109, 111 (Pa. Super. 1998)).

Divesting of Liens on Property Purchased at a Sheriff’s Sale

U.S. Bank argues that because it purchased the subject premises at a sheriff’s sale on January, 26,2010, U.S. Bank is the rightful owner of the property, and therefore plaintiff has no claim. “It is well established in Pennsylvania that a sheriff’s sale of real property divests all junior liens on that property. Marjer, 09-CV-8822 at 12 (citing Boyer v. Walker, 714 A.2d 458, 462 (Pa. Super. 1998). “Generally, where a junior lienholder has notice of a sheriff’s sale, he may attempt to protect his mortgage interest by bidding on the property at the sheriff’s sale and/or presenting legal or equitable arguments at a hearing as to why the mortgage should not be divested.” Marjer, 09-CV-8822 at 12 (citing Boyer, 714 A.2d at 463). if the junior lienholder fails to attempt to protect his interest, the purchaser of a property at a sheriff’s sale “obtain[s] title free and clear of [the junior lienholder’s lien] by operation of law.” Id.

Mortgages are not Divested Simply because of Prior Tax Deed at Private Sale

This court of common pleas has held that when a party acquires a tax deed to property pursuant to 72 P.S. §5860.613(a), Section 615 of the Tax Sale Law, governs. It provides the tax deed discharges of all tax claims and judgments on the property, but remains subject to any mortgages on the property. Marjer, 09-CV-8822 at 11 (Lacka. Co. 2011). In the previously referenced superiority of title case with our plaintiff before this county’s court, 09-CV-8822, Judge Nealon held that when plaintiff acquired a tax deed to property on June 2, 2009, the tax deed discharged all tax claims and judgments and arguably divested the prior owners of their ownership interest in the property, but did not divest the bank’s of its mortgage on the property (emphasis added). Additionally, because in that case the bank purchased the property at the sheriff’s sale on October 6, 2009, the bank obtained paramount, superior title to the property. Plaintiff was therefore required to pay that outstanding mortgage balance in full to acquire title free and clear of all mortgages and liens. Id. at 13-14. To make this determination, the court explained and distinguished liens on property sold at an upset tax, judicial, or private sale, further described below.

Distinguishing Liens on Property Sold at an Upset Tax, Judicial, or Private Sale

As stated by Judge Nealon in Marjer, 09-CV-8822 (June 1, 2011),

The Real Estate Tax Sale Law, Act of July 7, 1947, RL. 1368, as amended, 72 RS. sections 5860.101-5860.803, sets forth a comprehensive statutory scheme governing the sale of property and the quality of the title acquired depending upon whether the property is purchased at an upset sale, a judicial sale or a private sale. Under section 609 of the Tax Sale Law, if a bidder purchases a tax delinquent property at an upset sale, the tax claim bureau will deliver a deed in fee simple, but the title conveyed is “subject to the lien of every recorded obligation, claim, lien, estates, mortgage, ground rent and Commonwealth tax lien not included in the upset price with which said property may have or shall become charged or for which it may become liable.

Id. at 10 (citing 72 P.S. Section 5860.609).

Additionally, Judge Nealon stated that “[i]n the event that the upset price is not bid at the upset sale, the tax claim bureau may opt to proceed with a judicial sale by filing a petition with the court identifying all applicable tax liens, mortgages and other charges and serving that petition upon the property owner and all mortgages, lienholders and interested parties named in the rule.” Marjer, 09-CV-8822 at 10 (citing 72 P.S. Sections 5860.610-5860.611). “If a property has been exposed to public sale but is not sold because no bid was made equal to the upset price, the tax claim bureau may ‘agree to sell the property at [a] private sale, at any price approved by the bureau.’” Id. at 11 (citing 72 P.S. Section 5860.613(a)). In this sister case at this court with our plaintiff, the court reviewed the type of sale of the property in order to determine which party had superior title to it. In its analysis, the Lackawanna County Court of Common Pleas held:

Unlike Section 612(a) which provides that a judicial sale conveys title free and clear of all liens and mortgages, Section 615 does not state that a private sale similarly divests all liens and mortgages....The omission from Section 615 of any statement that liens and mortgages will be divested” was not inadvertent, as a result of which a private tax sale does not divest any mortgages even if it is recorded after tax liens have attached.... Therefore, the tax deed that Marjer obtained from the Lackawanna County Tax Claim Bureau for the sum of $3,000.00 did not divest the bank’s mortgage which exceeds $60,000.” (emphasis added)

Id. at 12 (citing Pitti v. Pocono Business Furniture, Inc., 859 A.2d 523, 528 n.5 (Pa. Cmwlth. 2004); Financial Freedom v. Cooper, 2011 WL 1744203 at *2 (Pa. Super. 2011); Plank v. Monroe County Tax Claim Bureau, 735 A.2d 178, 184 (“It is well settled that land purchased at a tax sale comes with no guarantee of title.”).

In Marjer, 09-CV-8822, Judge Nealon also reviewed the effect of other liens remaining on the property in the event of a sheriff’s sale, if any. Judge Nealon said that plaintiff failed to proscribe reasons as to why the mortgage interest should not be divested. As a result, the purchaser of property at the sheriff’s sale obtained title free and clear of the junior lienholder’s lien by operation of law.” Id. at 12. Judge Nealon also noted in Marjer that The Pennsylvania Superior Court recently said it is “folly” to purchase property at a private sale after the purchaser has received actual or constructive notice of a pending mortgage foreclosure suit. Id. (citing Financial Freedom, 2011 WL 1744203 at *2) (commencement of the foreclosure action put the purchaser on notice of pending mortgage foreclosure).

LEGAL ANALYSIS

Valid Assignment When Mortgagee is Nominee

Plaintiff in the present case argues that the assignment by MERS to U.S. Bank was invalid because MERS merely had legal title to the property and was nominee of the mortgage, but didnothave authority to assign the property to U.S. Bank. Pennsylvania has previously analyzed whether a mortgagor or assignee’s legal title coupled with status as nominee of the mortgage grants a mortgagee the authority to assign a mortgage. In Mortgage Elec. Registration Systems, Inc. v. Ralich, 2008 WL 7330621 (Allegheny Co. Oct. 24, 2008) (hereinafter “Raliclz”), when MERS was both owner of the legal title to the mortgage and nominee of the owner of any beneficial interest in the mortgage and for lender’s successors and assigns, the court found that the assignment MERS had made was valid because MERS’ authority to assign was granted in the mortgage contract’s language. The mortgage provided MERS had legal title, status as nominee, and the following rights:

Borrower understands and agrees that MERS holds only legal title to the interests gra[n]ted by Borrower in this Security Instrument but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender’s successors and assigns) has the right to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the property and to take any action required of Lender, including, but not limited to releasing and canceling this Security Instrument.

Mortgage Elec. Registration Systems, Inc. v. Ralich, 2008 WL 7330621 (Allegheny Co. Oct. 24, 2008). The Ralich court held that “Defendants’ insistence to set aside MERS’ purchase of the property at a sheriff’s sale for lack of authority and any action taken to conclude foreclosure authority for the same reasons was at odds with the acknowledgment by defendants at the time the mortgage was signed that MERS would have the authority to assign the mortgage.” Id.

In GMAC Mortg, LLC v. Smith, 2012 WL 4210385, (Phila. Co. Aug. 24,2012) the court likewise found MERS made a valid assignment to appellee based on its authority from the mortgage’s language that MERS, mortgagee under the security instrument, was acting solely as nominee for original mortgagee lender and lender’s successors and assigns. Additionally, since MERS had the authority to assign the mortgage to appellee, appellee was the real party in interest and had authority to bring a foreclosure action in the subject property. Finally, because appellant had not provided any supporting documentation, legal arguments or evidence that suggested MERS was not nominee of the original lender, there was no reason for the court to exercise rights or equitable powers to set aside the sheriff’s sale.

In Leone v. Mortg. Electronic Registration Systems, 2012 WL 1268605 (Allegheny Co. Apr. 12, 2012), the court also held that MERS had the authority to assign the mortgage pursuant to the language of an agreement that granted the same authority to mortgagee as did the mortgage language in GMAC and Ralich. In this case, Defendants MERS, Equity One, Inc., and ARC jointly moved to dismiss plaintiff’s verified complaint for declaratory judgment and to quiet title to certain real property. When plaintiffs defaulted, ARC, who was valid assignee of the mortgage agreement by MERS, acted under its authority as limited power of attorney for the current note-holder and mortgagee. From the authority granted to ARC in the mortgage agreement, ARC held the statutory power of sale and was able to foreclose. Plaintiff had not met its burden to show that there existed a genuine issue of material fact as to whether the assignment was appropriately executed or void, and defendant’s motion to dismiss, decided as a motion for summary judgment, was granted. Id.

The MERS Assignment to U.S. Bank is Valid

MERS’ assignment of the mortgage agreement to U.S. Bank was valid. The language plaintiff contests from the agreement as to MERS’ authority to assign the mortgage is the same language the court found in Ralich, GMAC and Leone, supra to have included mortgagee’s authority to assign and pursue foreclosure and a sheriff’s sale. In the present matter, the mortgage was validly assigned from decision one to MERS when defendant mortgaged, granted, and conveyed to MERS (solely as nominee for lender and lender’s successors and assigns) defendant’s interest in the real property. According to the agreement, MERS held legal title and the right to exercise any and all of those interests including, but not limited to, the right to foreclose. MERS, acting in its authority under the agreement, validly assigned the mortgage to U.S. Bank. As valid assignee, U.S. Bank had the authority to execute rights granted to it pursuant to the mortgage agreement, including the rights to pursue a foreclosure and sheriff’s sale. U.S. Bank acted pursuant to its rights under the mortgage agreement when it purchased the subject premises at the sheriff’s sale. Plaintiff’s argument that MERS could not assign the mortgage or pursue an action in foreclosure to U.S. Bank fails.

In Leone, and Simeon, we note that proof of validity of assignment from MERS to U.S. Bank is sufficient to render defendant’s motion for summary judgment granted. Leone, 2012 WL 1268605 (Allegheny Co. Apr. 12,2012); see also, Credit-Based Asset Servicing and Securitization LLC v. Simeon, 2003 WL 25429425 (Phila. Co. Apr. 4, 2003). Nevertheless, for the purposes of thoroughness and finality, we also entertain how U.S. Bank’s authority pursuant to the mortgage agreement to purchase the property in the sheriff’s sale allowed U.S. Bank to have superior title in the property, and this fact further illustrates that plaintiff’s quiet title claim is meritless.

U.S. Bank Has Superior Title in the Property Over Plaintiff or Anyone

In the related case with this same plaintiff opined by our colleague Judge Terrence Nealon of the Court of Common Pleas of Lackawanna County noted above in this opinion, it was determined that pursuant to the Tax Sale Law, the bank’s lien on the property was not divested when plaintiff purchased the property at a private tax sale pursuant to 72 P.S. § 5860.613. Marjer, 09-CV-8822 at 13. Additionally, separate from the tax sale, the bank had superior title to the property in Marjer as of the day that the bank purchased the property at the sheriff’s sale. Id. at 12-13 (citing Financial Freedom v. Cooper, 2011 WL 1744203 at *2 (Pa. Super. 2011); Plank, 735 A.2d at 184 (“It is well settled that land purchased at a tax sale comes with no guarantee of title.”). Because the bank purchased the property at the sheriff’s sale and had superior title to the property, the bank also had possession of the property. Id.

In the present case, plaintiff acquired the property in a tax sale on February 24, 2009. U.S. Bank had filed a mortgage and a pending foreclosure action on the property before that, on July 25, 2008. The sheriff’s sale occurred on January 26, 2010 and as of that date U.S. Bank had paramount title to the property. Once U.S. Bank secured the property as of the date of the sheriff’s sale, U.S. Bank was entitled to immediate and exclusive possession of the property. See Marjer, 09-CV-8822 at 12-13. Since U.S. Bank had possession of the property, and possession is required of a plaintijf for a quiet title action, plaintiff’s quiet title action fails for plaintiff’s inability to show the essential element of possession (emphasis added). See Marjer, 09-CV-8822 at 9 (citing Bride v. Robwood Lodge, 713 A.2d 109, 111 (Pa. Super. 1998)).

As in Marjer, 09-CV-8822 decided by Judge Nealon in the Lackawanna Court of Common Pleas in 2011, the tax sale on February 24, 2009 in the present case did not impact U.S. Bank’s superior title to the property. Plaintiff received a tax deed from a 72 P.S. § 5860.613 private tax sale. Properties sold pursuant to 72 P.S. § 5860.613 are non-judicial and sold subject to every lien of record not otherwise included in the Tax Claim Bureau’s debt. Marjer, 09-CV-8822 (citing 72 P.S. § 5860.613). Since pursuant to Marjer, 09-CV-8822 at 13, “[ojnce U.S. Bank purchased the property at the sheriff’s sale it obtained paramount title to the property,” the type of tax sale is of not a genuine issue of material fact as to which party ultimately has superior title in the property.

The parties also disagree as to whether U.S. Bank had notice of the tax sale that occurred between plaintiff and Lackawanna County Tax Bureau. Nevertheless, this inquiry about notice has no bearing on U. S. Bank’s superior title to the property. Failure of notice to a mortgagee does not vitiate a tax sale. Plank, 735 A.2d at 182; In re Tax Claim Bureau of Lehigh County, 96 Pa.Cmwlth. 452, 456 A.2d 1297 (1986), appeal denied, 514 Pa. 640, 523 A.2d 346 (1987)). Additionally, liens remain on the property in a tax sale irrespective of notice to the lienholder. See Marjer, 09-CV-8822 at 12 (citing Pitti, 859 A.2d at 528 n.5; Financial Freedom, 2011 WL 1744203 at *2; Plank, 735 A.2d at 184) (prior mortgage on property not divested at 72 PS § 5860.613 private tax sale). U.S. Bank’s lien was therefore not affected by notice or lack thereof of the tax sale, and no genuine issue of material fact exists to this point. See Marjer, 09-CV-8822 at 11-12.

U.S Bank’s Motion for Summary Judgment

When deciding a motion for summary judgment, the rules require that there be no genuine issues of material fact and that the moving party be entitled to judgment as a matter of law. Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010). Although under section 607(g) of the Tax Law, after [a tax] sale is confirmed absolutely, a successful bidder such as plaintiff may file an action to quiet title, Plank, 735 A.2d at 182, plaintiff’s legal conclusions that the assignment was invalid, without more, are not enough for plaintiff to meet his burden of proof that there was a genuine issue of material fact as to an assignment’s validity. In Leone, the failure to show invalid assignment was enough for the court to grant defendant’s motion for summary judgment as to plaintiff’s quiet title action. Leone, 2012 WL 1268605 (Allegheny Co. Apr. 12, 2012) (internal citations omitted); See also Simeon, 2003 WL 25429425 (Phila. Co. Apr. 4, 2003). In the present case, the assignments of the mortgage were valid and made pursuant to the terms of the mortgage agreement. Therefore, this determination of the validity of the instruments and the interpretation of the language is a matter of law suitable for the court to determine. Smith v. Cumberland Group, Ltd., 455 Pa. Super. 276, 284 687 A.2d 1167, 1171 (1997) (“construction and interpretation of contracts is question of law’” citing I.S. Joseph Company, Inc. v. Michigan Sugar Company 803 F.2d 396 (1986) (“validity of assignment..., must be determined by court under common law of contract and assuming valid assignment, assignee could enforce...pro vision in contract entered into by assignor”)). Additionally, U.S. Bank had the authority to purchase the property in the sheriff’s sale like assignee in Ralich, and the authority to foreclose like in Ralich, GMAC and Leone. Plaintiff has failed to set forth specific facts to demonstrate that a genuine issue of material fact exists as to the extent and validity of the assignment of the mortgage from MERS to U.S. Bank and actions taken pursuant to the mortgage agreement.

To prevail in a quiet title action, plaintiff must demonstrate prima facie title by a fair preponderance of the evidence. Marjer, 09-CV-8822, at 9 (citing Poffenberger v. Goldstein, 776 A.2d 1037, 1041 (Pa. Cmwlth. 2001)). Possession of the property is a jurisdictional pre-requisite to quiet title. Marjer, 09-CV-8822 at 9 (citing Bride, 713 A.2d at 111, supra). Plaintiff does not have possession of the subject premises. Instéad, U.S. Bank has exclusive possession of it since U.S. Bank obtained superior title to the property in the sheriff’s sale. Marjer, 09-CV-8822. Without possession, plaintiff is barred from pursuing a quiet title action.

For the reasons stated in this opinion, plaintiff’s quiet title action is totally devoid of merit. Without possession, plaintiff cannot bring an action to quiet title. Defendant’s motion for summary judgment is granted. Plaintiff’s claim is dismissed with prejudice against re-filing. An appropriate order follows.

ORDER

On this April 5,2013, U.S. Bank’s motion for summary judgment is granted. No genuine issue of material fact exists as to title of the property because:

1. MERS validly assigned the mortgage to U.S. Bank pursuant to its authority as nominee of the mortgagee, with legal title in the exercise of its rights based on the original mortgage assignment it received for decision one, and;
2. As a result of the sheriff’s sale between Lackawanna County and U.S. Bank on August 6, 2008, U.S. Bank has superior title to the property and exclusive right to possession.
3. Accordingly, U.S. Bank’s motion for summary judgment is granted and plaintiff’s complaint dismissed with prejudice against re-filing.

      . At the same time that plaintiff and U.S. Bank were discussing plaintiffs short sale proposal, plaintiff filed another action to quiet title on an unrelated property (filed on Oct. 6, 2009). The decision regarding plaintiff’s action to quiet tile to that other property was opined before this Court of Common Pleas by our colleague Judge Nealon (June 1,2011) in Community Bank & Trust Co., v. Marjer. Inc., No. 09-CV-8822.

      . U.S. Bank National Association, as Trustee for Credit Suisse First Boston Heat 2005-7 v. Ligus, No. 2008-CV-5018 (Lacka. Co. July 25, 2008).

        . Id.

      . Plaintiff also argues that U.S. Bank cannot proceed because the legal description under the mortgage is inaccurate as it identifies a property in Pike County. This argument is without merit. The original grant of the property to defendant Ligus is in Lackawanna County and the property is located in Madison Township, Lackawanna County. See mortgage, mortgagor Ligus and mortgagee Decision One to MERS, at 4 (July 29,2005); assignment of mortgage, mortgagor Ligus and mortgagee US Bank (Aug. 6,2008); tax claim deed, grantor Ligus, grantee Marjer, Inc. (recorded on April 6, 2009).

      . Community Bank & Trust Co., v. Marjer, Inc., No. 09-CV-8822 was consolidated with Marjer, Inc., v. Anthony M. Perri and Ann B. Perri, Defendants and Community Bank & Trust Co., Intervenor, No. 09-CV-6676 as of Nov. 23, 2010.

      . When an unpublished memorandum is relied upon, a copy of it must be furnished to the other party and to the court. (Pa.Super.Ct.R. 65.37); Kormos v. Urban, 911 A.2d 193 (Table) (Pa. Super. 2006).

      . In Ralich, the assignment of the mortgage and note to home se - vicing did not extinguish the authority of MERS to proceed as nominee and to continue to take any action required to conclude foreclosure proceedings. The authority of MERS survived assignment of the instrument. Mortgage Elec. Registration Systems. Inc. v. Ralich, 2008 WL 7330621 (Allegheny Co. Oct. 24, 2008). Nevertheless, the assignee of the instrument still had powers granted to assignees pursuant to the agreement.

      . The mortgage provides, in part: “Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this security instrument, but...MERS...has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the property...”

      . In so holding, the Leone court incorporated and adopted the re - soning in Payette, 2011 WL 3794701 (R.I. Super., 2011), a case with the same facts and operative language of the mortgage agreement in Leone. In Payette, the court determined that according to undisputed material facts, defendants were entitled to judgment as a matter of law.

      . Assignment of mortgage, from Decision One Mortgage Co., LLC to MERS (recorded Sept. 6, 2005); see U.S. Bank’s motion for summary judgment exhibit A at 2.

      . Id. at 3.

      . Assignment of mortgage, from mortgagor Claudia Ligus to mor - gagee U.S. Bank by MERS holder of the mortgage (recorded Sept. 4, 2008); See U.S. Bank’s motion for summary judgment exhibit B at 1-2; See also n. 10 of this opinion for terms of mortgage agreement (originally assigned by Decision One to MERS).

      . The parties disagree as to whether the tax sale was an upset or private sale. Plaintiff references in its complaint ¶3 and response to this motion for summary judgment that its sale with the county was a “private tax sale.” In U.S. Bank’s motion for summary judgment and supporting memoranda, U.S. Bank describes the sale as an “upset tax sale.” In plaintiff’s response to the motion for summary judgment, ¶6, plaintiff concedes that in a tax sale, liens are not divested of the property.

      . The notice of proposed sale was forwarded to The Scranton Times for January 7, 2009. Notice of proposed private sale, Jan 7, 2009. The property was offered for public sale for delinquent taxes on at least one occasion, Sept. 22, 2009 at the upset tax sale. Plaintiff’s complaint and response to motion for summary judgment, and defendant’s motion for summary judgment and memorandum in support thereof, say that the tax sale between plaintiff and the Lackawanna County Tax Bureau was a tax sale pursuant to 72 P.S. 5860.613. See also, Tax Claim Bureau Deed (former owner Claudia Ligus, grantor, Tax Claim Bureau of Lackawanna County, Marjer, Inc., grantee) Feb. 24, 2009, recorded Mar. 18,2009.


author: TUNNELL, «/.,

text:
    In re Dardarian

      C.P. of Chester County,
    No. 1512-1415.

      James Hickey, for petitioner Linda J. Edwards

      Christopher G. Furlong, for principal Mardell Dardarian

      Raymond J. Falzone, Jr., for attomey-in-fact Linda Moran
    April 30, 2013
   TUNNELL, «/.,

The principal in this case, Mardell Dardarian, is an 82 year old individual who resides at Pembroke Health & Rehabilitation Residence in West Chester, Pennsylvania. On September 23, 2010, she appointed a friend, Linda Moran, as agent under a general power of attorney.

Almost two years later, Mrs. Dardarian’s daughter, Linda J. Edwards, petitioned this court to order Ms. Moran to file an account of her administration of the Principal’s finances to date. Ms. Edwards did not disclose to the court at that time that she had fallen out of favor with her mother for years. Indeed, prior to the appointment of Ms. Moran under the power of attorney, the principal had executed a will on October 21, 2008 in which she specified that “my daughter is excluded”. By later will dated October 29, 2010, Mrs. Dardarian left her estate equally to Linda Moran and three of her other friends. She further provided “My daughter and grandsons are all specifically excluded from my Estate they did not concern themselves with me for 12 years and when they did it was only to put me in a nursing home so they would not have to bother with but control my money therefore I leave them nothing (sic).”

This court entered an order on October 3, 2012 which recited that “after agreement by the parties” Ms. Moran, the agent, would file a formal account of her administration. By order dated December 14, 2012, the court granted Ms. Moran an extension of time to file said account. The account was to be in the format required by Pa. O.C. Rule 6.1 and the corresponding local rules of the Chester County Orphans’ Court Division.

Ms. Moran’s account did not comply with the specified format.

Ms. Edwards filed 38 objections on March 6,2013.

This case was then reassigned from the Honorable John L. Hall to the undersigned. Ms. Moran responded by filing a petition to dismiss and to strike the objections filed by Ms. Edwards, raising the issue of standing on the basis that Mrs. Dardarian is alive, and her daughter is neither a beneficiary nor a personal representative.

In open court on April 29, 2013, counsel for the parties agreed that there was no material issue of fact and that the initial question of standing was ripe for determination.

The matter of whether one has the requisite standing to cite another to file an account and to challenge said account by means of objections remains a thorny one. Many people imagine that they are fully qualified to do so because they are a close blood relative, or an intestate heir. The issue is not necessarily intuitive.

Pennsylvania courts have concluded that any inquiry into the alleged misuse of a power of attorney is to made by the person who granted the power, in this case Mrs. Dardarian herself, or by the personal representative of his or her estate. It is not to be made by a beneficiary whose interest was allegedly hurt by the exercise of the power of attorney. Golub Trust, 27 Fid. Rep. 2d. 260, 265 (O.C. Phila. Co. 2006). Thus, if an agent breaches a fiduciary obligation owed to the principal, it is up to the principal himself or herself, or, after death, his or her personal representative to proceed to hold the agent accountable. Rosewater Estate, 25 Fid. Rep. 2d. 83, 85 (O.C. Mont. Co. 2005).

Mardell Dardarian has not only not made any accusations against her agent, Linda Moran, but she proceeded to file a sworn affidavit affirming that she gave Ms. Moran a significant gift, and acknowledging an awareness that Ms. Moran is being paid a sum of $800 per week for services rendered to Mrs. Dardarian under the power of attorney. She expresses her overall satisfaction with Ms. Moran’s services.

Mrs. Dardarian has her biases, and the law will protect them. There has been no suggestion that Mrs. Dardarian is not in possession of her faculties or that her mind has been imprisoned by the machinations of another. For persons who have been adjudicated as incapacitated, their guardians succeed to the necessary standing to compel accountings.

For similar reasons, this court recently held that a widow of a decedent did not have standing to compel an account from her late husband’s agent for, although she might remain a beneficiaiy, the person having standing was the executor of the deceased party. In Re: Estate of Griggs, 2 Fid. Rep. 3d. 354, 60 Ches. Co. L.R. 266 (2012). Ms. Moran’s petition to dismiss and strike the objections of Linda J. Edwards to the first account of the power of attorney will be granted.

However, the court has twice ordered Ms. Moran to file an account in the proper format. That being the case, she must do so for the court’s own review. An order follows.

ORDER

And now, this 30th day of April, 2013, the petition of Linda Moran to dismiss and strike the objections of Linda J. Edwards to the first account of the power of attorney is granted.

Linda Moran shall file an account in the proper format, as previously required, for the court’s own review.


author: WILLIAMSON, /.,

text:
    Liao v. Liao.

      C.P. of Monroe County,
    No. 790 DR 2012, No. 6259 CV 2012.

      Robert M. Mashrey, Jr., for plaintiff.

      Ronald Liao, Pro se.
    March 6, 2013
   WILLIAMSON, /.,

This custody matter is before the court on Lyudmila Liao’s (“mother”) request for a hearing following the petition for modification filed by Ronald Liao (“father”). Mother and father are the parents of Maximillian Liao, age 8 (DOB 6/2/04). The most recent order of court dated February 19, 2013, adopted the recommendation of the custody conciliator dated February 5, 2013. That most recent order provided shared legal custody between mother and father, with mother having primary physical custody subject to father having physical custody during the school year from 6:00 p.m. Friday to 8:00 a.m. Monday on the First, second and fourth weekends of the month and Wednesdays from after school until 8:00 p.m. The order also provided father with every other week in the summer and a shared holiday schedule.

At time of the full evidentiary hearing in this matter held February 26, 2013, the parties were virtually in agreement with a proposed custody schedule. Mother had motioned for the hearing to clarify and memorialize an agreement of the parties as to custody arrangements concerning attendance at church and Chinese school on Sundays. Mother also sought to have the weekend schedule modified to return the child to her on Sundays at 7:00 p.m. and the Wednesday time with father modified to return the child at 7:00 p.m.

At the hearing, father agreed these modifications were acceptable, but he hoped mother would consider placing the child in his care when available, rather than in day care. Father initially had concerns with the day care provider, but at the hearing agreed that the minor child was being cared for properly when at the day care. Father had some concerns for the outside safety of the day care, and the number of young children in care there.

The brief factual history in this case is as follows:

Mother and father were married on December 30,1997. Mother has two (2) children from another relationship: Ivan, age 23 and Anastasia, age 24. Ivan is employed and lives at home with mother. Anastasia is in the U.S. Air Force and stationed in South Carolina. Mother is from Ukraine and now a U.S. citizen. Father is from Taiwan and also a U.S. citizen.

Mother and father lived together at 274 Maty Street, East Stroudsburg, Monroe County, Pennsylvania until their separation on July 3,2012. Mother now lives on Hill Street, East Stroudsburg, Pennsylvania, approximately one (1) block from father. Max lives with mother and stays with father pursuant to the schedule referenced above. Mother is employed part-time as a substitute cafeteria worker in both the Stroudsburg and East Stroudsburg school districts. Father is employed by Wells Fargo as a computer engineer. He commuted to work for a while in reading, Pennsylvania, but since late 2011 he has been able to work from home.

Max is in the 3rd grade at J.M. Hill Elementary School in East Stroudsburg, Pennsylvania. Max is very talented. He does well in school, is an accomplished artist, and he plays the piano. He also enjoys Taekwondo, baseball, soccer, skating, bowling, swimming and golf. He is learning Russian and Chinese. Both parents encourage Max in all that he does.

DISCUSSION

We must consider all relevant facts in determining a custody order following a full evidentiary hearing. The following factors must be considered when awarding custody:

“(a) Factors. — In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors giving weighted consideration to those factors which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
(2) The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
(3) The parental duties performed by each party on behalf of the child.
(4) The need for stability and continuity in the child’s education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on the child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.
(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or member of a party’s household.
(15) The mental and physical condition of a party or member of a party’s household.
(16) Any other relevant factor.”

23 Pa. C.S.A. §5328(a)

In this case, we note the parties were essentially in agreement with a revised custody schedule. Father did not want to lose more time, other than agreeing to a modification for his weekend periods to end at 7:00 p.m. on Sundays and the Wednesday visits at 7:00 p.m. Father had a concern regarding the necessity of using the daycare instead of asking father to watch the child. Father also had a concern for some safety issues at the daycare, and a related, but irrelevant concern to these proceedings, regarding proof of daycare expenses incurred. As the parties were essentially in agreement with regard to the custody schedule, we will fashion an order to encompass the matters upon which they agreed. We will discuss the factors considered to be in the best interests of the child in arriving at an order that is the same as the parties agreed.

We find both parties will be likely to encourage and permit frequent and continuing contact between the child and the other party. For the most part, and with few exceptions, theparties work well together inseeing thattheir son spends time with both parents, giving consideration to Max’s schedule, his activities, and his need for continuity and routine. The parties have also previously agreed to a schedule outside of the existing order for church and Chinese school.

We find no present or past abuse of the parties or members of the household. We did hear testimony that father has had periods of time where he has yelled at mother, and we viewed a video of an incident that occurred in 2006. We find such incidents with mother will likely no longer occur now that the parties are separated. We did not find evidence of this behavior directed at the child. However, father should be aware that his past behavior is upsetting to mother and continues to effect this relationship, even though that relationship is now only about raising Max.

Both parties perform parental duties with Max. However, we find this factor favors mother as she has always provided the primary care, while father worked and provided for the household. Mother also teaches Max about art, and tutors him in his schoolwork and learning Russian. It was refreshing to hear father’s praise for mother in her upbringing of Max.

Max needs stability and continuity in his education, family life and community life. He is still finding his way with two households since the time of separation. The close proximity of the two households allows for more flexibility in the court’s order. However, Max’s age and his involvement in various activities leads us to believe he should maintain a routine when possible. This factor does not necessarily favor one parent over the other, but he has grown accustomed to the current routine and he is excelling in it. Therefore, it should remain essentially unchanged, recognizing the parties can always agree to modify the schedule as works best for them and Max.

There was no testimony of extended family, other than Max’s older siblings. The sibling relationships are positive to Max and he enjoys spending time with them. These are important factors for Max to reside with mother.

We met with Max in camera without the parties or attorneys. For his age, Max spoke well and was able to give well-reasoned answers to questions, including those that had nothing to do with custody or his parents. We find Max to be very bright, engaging, and happy, despite having to be in court, and overcoming some initial nervousness. Max likes the current schedule between the parties and we give this some weight.

We find neither parent has exhibited behavior to turn the child against the other parent. Therefore, this is a non-factor.

We find Mother is more likely, as the primary custodian, to maintain a loving, stable, consistent and nurturing relationship adequate for the child’s needs. The same can be said for attending to Max’s daily physical, emotional and educational needs. That is not to say father cannot do it; mother is just in a better position to do it based upon her current relationship and time with Max, and the activities he does with her. These two factors slightly favor mother.

The residences of the parties are extremely close and allow for Max to spend considerable time with both parents. While Max is young, it is important he has one primaiy household, but spends a reasonable amount of time with the other parent. This will be reflected in the court’s order.

Both parties are available to care for Max or provide adequate and appropriate child-care arrangements. This is a non-factor. Father does request he be considered first to watch Max before he is placed in child-care. Mother has concerns with father’s reliability, and the level of communication with father based upon past experience. We are reluctant to put anything in the order in this regard, as it micromanages how time and manner of a parent’s custody period is spent. In some instances, it may cause problems, both in enforcement, and in a practical sense. Therefore, this is something the parties should consider on their own when in mutual agreement. If mother does decide to try this, and it goes smoothly, both parents are to be commended and Max will surely benefit. If it does not work, because father is unreliable or puts additional pressure on mother, then there is no fault with her refusing to do so in the future.

There is a level of conflict between the parties. Mother is soft spoken, while father is more easily excited. Due to past issues of the parties, it appears mother feels intimidated by father. Several incidents since the separation confirm mother’s trepidations. There was an example of over 40 text messages sent by father to mother after he allowed Max to be picked up early by mother, then demanded Max be returned for the end of his custody period. Father felt his acquiescence to the early pick-up would show he did not want to exercise his allotted time with the child. Father should know, such concessions are looked upon favorably by this court; but, incessant texts, calls, or e-mails are not. With some forethought by father in not expressing all of his emotions or anger at a situation with mother, he can improve the relationship, which in the end, serve Max’s best interests. Some coping skills or family counseling for father to avoid being “set off’ as he described it, is recommended.

We find no history of alcohol or drug abuse by the parties or members of the household, nor any mental or physical conditions that may effect custody. These are non-factors.

Since the parties were essentially in agreement with each other at the time of hearing, and the court finds the schedule proposed at the hearing is in the best interests of the minor child, we adopt the following order of court regarding custody:

ORDER

And now, March 6, 2013, following a full custody hearing in this matter, with regard to custody of the minor child, Maximillian, it is ordered as follows:

1. SHARED LEGAL CUSTODY

Mother and father shall share legal custody of their child. For purposes of this order “shared legal custody” shall mean:

(a) All decisions affecting the child’s growth and development, including but not limited to education, choice of school, medical and dental treatment, religious training, athletic pursuits and extracurricular activities shall be considered major decisions, and shall be made by the parties jointly after discussion and consultation with each other with a view toward obtaining and following a harmonious policy in the child’s best interest;

(b) Each party agrees to keep the other informed of the progress of the child’s education and social adjustment. Each party agrees not to impair the parties right to shared legal or physical custody of the child. Each party agrees to give support to the other in the role as parent and take into account the consensus of the other for the physical and emotional well-being of the child with the recognition that their life styles may be different;

(c) While in the presence of the child, neither party shall make or permit any other person to make any remarks or do anything which would in any way be construed as derogatory or uncomplimentary to the other parent. It shall be the express duty of each parent to uphold the other parent as one whom the child should love and respect;

(d) It shall be the obligation of each parent to make the child available to the other in accordance with the following schedule and to encourage him to participate in the plan hereby set forth;

(e) Each parent shall have the duty to notify the other of any event or activity that could reasonably be expected to be of a significant concern to the other parent or to the child;

(f) The parents shall communicate with one another concerning any parenting issues requiring consultation and agreement regarding a proposed modification of the custody schedule which may, from time to time, become necessary, and shall specifically not use the child as a messenger at any time. Neither party shall discuss with the child any proposed changes to this schedule or any other issue requiring consultation and agreement prior to discussing the matter and agreement with the other parent;

(g) With regard to any emergency decisions which must be made, the parent with whom the child is physically residing at the time shall be permitted to make a decision necessitated by the emergency without consulting the other parent in advance; however, that parent shall inform the other of the emergency and consult with him or her as soon as possible. Day to day decisions of a routine nature will be the responsibility of the parent having physical custody at that time;

(h) Mother and father agree to share complete and full information from any doctor, dentist, teacher or other authority, and each parent may have copies of any reports given to them as a parent. Each parent shall also request any authority to forward copies to both parents at their respective addresses. Such documents include, but are not limited to, medical reports, athletic and school reports, birth certificates, etc. Both parents may and are encouraged to attend conferences and activities with the child. Both parents shall be listed with any school or day care center as parents to be contacted in the event of an emergency and to be notified regarding school events. Mother and father agree to share copies of any school notices in a timely fashion;

(i) Both parents shall attempt to avoid scheduling any activities or appointments for the child which would require his/her attendance or participation during the time when he/she is scheduled to be in the physical custody of the other parent without the parent’s prior approval; however, both parents agree to cooperate and be flexible in accommodating the child’s scheduled activities.

2. SHARED PHYSICAL CUSTODY

The parties shall share physical custody of the minor child according to the following schedule:

a) Academic Year: Mother shall exercise primary physical custody of the minor child, under and subject to father’s periods of partial physical custody which shall occur on the first, second and fourth weekends of each month from Friday at 6:00 p.m. to 7:00 p.m. on Sunday. In addition, father shall exercise custody of the minor child each week on Wednesday from the time of the child’s dismissal from school until 7:00 p.m. In addition, the parties may share custody of the minor child at such other days and times upon which the parties shall mutually agree.

b) Summers: The parties shall alternate physical custody of the minor child on an alternating weekly schedule from Sunday at 6:00 p.m. to the following Sunday at 6:00 p.m. For purposes of this order, the summer schedule shall be effective as of the third Sunday in June and shall end on the third Sunday in August. The alternating weekly schedule shall begin with father on the third Sunday in June.

c) Every Sunday, mother shall be entitled to take the minor child to church and mother shall also transport the minor child to Chinese school every Sunday. Mother shall have physical custody eveiy Russian Orthodox Christmas and Russian Orthodox Easter as set forth below. Father shall have physical custody every Easter holiday as set forth below. This shall supersede all other portions of this custody schedule.

3. HOLIDAYS

The following holiday schedule supersedes all other partial and vacation custody schedules established in this order:

(a) The parties shall alternate the major holidays. The alternating holiday schedule shall include the holidays of President’s Day, Memorial Day, Fourth of July, Labor Day, and Thanksgiving. This schedule shall start with father on Memorial Day in 2013, and rotate between the parties (i.e. Memorial Day 2013 — father; Fourth of July 2013 — mother; Labor Day 2013 — father; Thanksgiving 2013 — mother, etc.) The parties will also equally share the minor child’s breaks from school at the Thanksgiving, Christmas and Easter/spring holidays as set forth below. Those periods of partial custody for which no times for exchange were heretofore scheduled shall begin at 9:00 a.m. and end at 7:00 p.m.

(b) Mother shall have physical custody on Mother’s Day weekend and father shall have physical custody on Father’s Day weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m.

(c) The parties shall share the child’s Thanksgiving Vacation and Holiday from school in which the following dates and times shall alternate between the parties each year:

(1) Thanksgiving Eve at 6:00 p.m. until the immediately following Friday at 6:00 p.m. This shall start with mother in 2013, Father in 2014, Mother in 2015, etc.

(d) The parties shall alternate custody of the child during the child’s Christmas Vacation from school as follows:

(1) From December 26th at noon until December 28th at noon, father shall have physical custody beginning in 2013 and each odd year thereafter (2015, 2017, etc.) Mother shall have custody on these dates in the even years.
(2) December 28th at noon until December 31 st at noon, Mother shall have physical custody beginning in 2013 and each odd year thereafter (2015, 2017, etc.) Father shall have custody on these dates in the even years.
(3) Christmas Eve Day — Christmas Day: Father shall have physical custody of the child from December 24th at noon through December 25th at noon each year. Mother shall have physical custody from December 25th at noon to December 26th at noon each year.
(4) From December 31st at noon until January 1st at noon, mother shall have physical custody of the child each year.
(e) Russian Orthodox Christmas:
(1) Every Russian Orthodox Christmas, mother shall have physical custody of the child from January 6th at 2:00 p.m. through January 7th at 7:00 p.m. each year.

(f) Russian Orthodox Easter and Traditional American Easter holidays:

(1) Every Russian Orthodox Easter, mother shall have physical custody from the Saturday of the Russian Orthodox Easter at 2:00 p.m. until the Russian Orthodox Easter Sunday at 7:00 p.m. each year.
(2) Every Good Friday/Traditional American Easter, father shall have physical custody from Good Friday at noon until Traditional American Easter Sunday at noon each year.

In the event that a holiday to which father is entitled shall fall within a day prior or subsequent to weekend period of partial custody to which father would also be entitled, that period of weekend partial custody shall be extended to include father’s period of holiday partial custody.

4.SUMMER VACATIONS

Beginning in 2013, mother and father shall enjoy summer holiday time with the minor child during their periods of custody pursuant to the provisions herein. Each parent shall provide to the other parent the telephone number and address where they will be exercising their period of vacation custody.

5.TRANSPORTATION

The parents shall share transportation equally as they can agree. If they are unable to agree, in order to facilitate the exchange of partial custody, it shall be the responsibility of the party who will be obtaining partial custody, or a designee, to pick up the child at the residence of the other party. Appropriate passenger restraint devices shall be utilized by the child while being transported.

6.TELEPHONE ACCESS

Each parent shall allow the other parent to have private, liberal and reasonable telephone access with the minor children during that parent’s period of partial custody. This shall include the children initiating such contact. Reasonable telephone access shall be construed to be daily at 7:00 p.m., emergencies excepted. If the calling parent leaves a message at the residence of the custodial parent, custodial parent shall require the children to return the. telephone call to the non-custodial parent.

7.NOTICE: CHANGE OF RESIDENCE OR

RELOCATION

Before a party may relocate the children or change the residence of the children in a manner which significantly impairs the ability of other individuals with custody rights to the children to exercise those rights, the party must comply with the requirements and obligations of Pennsylvania’s Custody Law set forth in 23 Pa. C.S.A. 5337.


author: SPRECHER, J.,

text:
    Runkle v. Hahn.

      C.P. of Berks County,
    No. 10-24648.

      David Crossett, for plaintiff.

      Brooke Boyer, for defendant.
    March 21, 2013
   SPRECHER, J.,

Defendant appeals the order dated January 3, 2013, which was in response to plaintiff’s request for a preliminary injunction. This opinion is filed pursuant to Pa. R.A.P. 1925.

FACTS

On April 4, 1985, plaintiff, William P. Runkle, and his former wife, Betsy Runkle, purchased real property in fee simple. The Runkles sold four parcels of the property in 1987 and kept 41.18 acres that contained the marital residence and a pool (hereinafter, property).

On July 15,2002, the Runkles agreed to lease a portion of property to sprint for a cell tower. The initial rent was $1,020.00 per month which was increased annually by three per cent. The lease was for five years and was automatically renewed for four additional terms of five years each unless Sprint or its successor provided the Runkles with notification of its intention not to renew. SBA Communications Corporation is the successor in interest to sprint.

The Runkles divorced in 2006. Following the divorce, plaintiff entered into a handwritten agreement (agreement) with defendants, Arthur G. Hahn and his wife, Lisa Hahn, to sell property to defendants and to reserve a life estate for himself. Defendants drafted the agreement, and all parties signed it. Agreement provides for defendants to purchase Betsy Runkle’s share of property for $207,500.00; defendants paid this money directly to Betsy Runkle. In exchange for plaintiff’s transferring all of his ownership interest in property to defendants, defendants gave plaintiff a life estate in property and the right to receive the cell tower rent (rent) for the remainder of plaintiff’s life. Plaintiff had a duty to pay all property taxes, insurance, and utilities for property while he resided on it. If he ceased to reside on property, plaintiff had to pay just the property taxes. Agreement is dated May 3, 2006.

Plaintiff transferred his interest to property by deed dated June 30, 2006, paragraph 16 of another agreement of sale dated June 30,2006, states inter alia, that “William P. Runkle will reside in the premises for a duration of time and terms agreed upon by William P. Runkle and purchaser.” Thus, it was clearly contemplated that plaintiff would reside on property pursuant to terms and conditions to which both parties agreed. Since June 2006, plaintiff has not received any rent because defendants required the cell tower company to issue the checks to them. Defendants used the funds to pay for the property taxes, insurance, and utilities that were plaintiff’s obligation under agreement. Defendants also required plaintiff to pay $3,500.00 in cash and $500.00 in labor for one-half of the cost of replacing the pool liner on property. On May 2, 2011, plaintiff was removed from property and forced to reside in charitable housing for several months.

Plaintiff alleged in his complaint that while residing in property under the life estate, defendants interfered with his right to possess property, because they occupied the pool late at night and played a radio loudly. He also alleged that defendants discharged firearms on property. Plaintiff sought injunctive relief to have the rent returned to him and to be allowed to return to property.

This court scheduled the hearing on the preliminary injunction on December 18, 2012. Although defendants received notice of the hearing by court order, they did not appear. The hearing was therefore conducted in their absence. Plaintiff testified that he had owed his wife, Betsy Runkle, $207,500.00 under the post nuptial agreement. Before the life estate agreement, he had been living at a charity and had wanted to return to property, but he could not afford to buy out his wife’s interest. He therefore made a deal with defendants to live on property for the rest of his life and for defendants to pay Betsy Runkle the money owed under the post nuptial agreement in exchange for plaintiff’s transfer of property to defendants. Plaintiff then returned to property. Defendants immediately took over the pool and began cashing the Rent checks. Plaintiff testified that due to defendants’ testimony he was committed involuntarily on May 2, 2011, and removed from property. Plaintiff was not allowed by defendants to return to property following his release and remains barred from property.

While committedinvoluntarily,property was condemned as uninhabitable. The condemnation notice was dated May 3, 2011, and gave plaintiff ten days to give a proposed plan and sixty days to fix the problems. Plaintiff was not able to act, because he had been involuntarily committed from May 2, 2011, to May 14, 2011. He was not allowed back on property after defendants rehabilitated it. He was again forced to seek charitable housing.

Based on plaintiff’s uncontroverted testimony, this court granted the preliminary injunction. Defendant’s attorney immediately contacted plaintiff’s attorney and an agreement was reached by the parties in which plaintiff agreed not to enforce the injunction until a rehearing. Defendants filed a motion for reconsideration. Defendants’ attorney stated that he had been unavailable for the hearing on the preliminary injunction because he had been participating in a trial in federal court and had not known about the date of the hearing. Although no emergency existed due to the agreement between counsel, defendant appeared before the emergency motions judge who stayed this court’s order dated December 18, 2012.

DEFENDANT’S CASE

This court then conducted a second evidentiary hearing on January 3, 2013, to allow defendants to present evidence in their case. Defendants called Burt Ganster, a constable who testified that he went to plaintiff’s residence three times in 2011. He first served a notice to quit, then he served a notice that defendants would be coming to change the electrical set-up, and on the third visit, he was present with an electrician. Plaintiff had threatened to kill defendant at that time. Mr. Ganster found the house to be very cluttered and stinky with cat odors.

Duane Bialek, a self-employed electrician, testified that plaintiff threatened his men, so he went with them to plaintiff’s residence. He said that the residence stank, needles were lying around, and cat feces were on the floor. Electrical junction boxes had stuff ripped out of them.

Around this same time, Anthony Garipoli, the Chief of Police of the police department serving the area where property is located, received a telephone call from the township manager who wanted him to check out property because a report had been received that property was unsuitable for habitation. He went with two service access management workers who wanted to assess plaintiff. He also found that property stank due to cat urine. There was trash lying around, cat feces on the floor, syringes on the counter, and dust.

Richard Gerhart, Jr., testified he is employed by Lower Alsace Township as a property maintenance inspector. He inspected property after receiving a complaint from the police department. He determined that property was not fit for habitation. Lower Alsace Township has a rental ordinance which states that in order for a home to be occupied by persons other than the owner, it needs a successful inspection to become a rental property. On February 7,2012, apparently being told by defendants that property was a rental property, Lower Alsace Township issued a rental license for Property.

Defendant, Arthur E. Hahn, testified that in 2006 he had agreed to buy property from plaintiff because plaintiff had said that he had a cell tower and would be responsible for paying taxes and the homeowner’s insurance. There was a second mortgage on property. Plaintiff was originally going to secure a loan to pay it; however, he had no collateral, so the loan would have cost nineteen per cent and would have required a $2,000.00 per year insurance policy to insure the loan due to plaintiff’s age. Therefore, Mr. Hahn testified that he had drafted the agreement dated May 8, 2006, which gave him the rent to pay the taxes, homeowner’s insurance, and the loan. Defendants contend that these obligations were greater than the monthly rent. Defendants, however, do not have any documentation from plaintiff authorizing the rent to go to them. Although defendants have received a total amount of approximately $105,500.00 in rent, defendants have only paid $3,858.96 per year on the $31,000.00 buyer assist loan and $9,435 in school and property taxes in 2012.

Mr. Hahn also testified that he had discovered damage to property when he had entered the residence with Mr. Gerhart after the police officer had been there. The last time that he had been inside the residence was approximately two years earlier when the residence had been satisfactory.

Mr. Hahn went to the magisterial district judge (MDJ) who granted him possession on May 25, 2011. Plaintiff did not appeal the order.

Mr. Hahn testified that he had spent $220,000.00 to rebuild the residence. Defendants now rent property to their daughter and son-in-law for $1,200.00 per month.

Although Lisa Hahn is a party to this action, she did not testify and was not present for either hearing.

HOLDING

Based on the completed record, this court ordered that defendants may remain in possession of the real estate and continue to lease property and collect the rent. It further ordered that defendants are to pay plaintiff $1,500.00 per month, or in the alternative, defendants may agree to allow plaintiff to reoccupy property. If plaintiff returned to property, he had to maintain the real estate in good condition. Cell tower rent was to be paid to defendants except for the months of October 2012 through December 2012. Defendants filed a timely appeal.

ISSUES

Defendants raise the following issues in their concise statement of errors complained of on appeal.

1. Did this court abuse its discretion in granting the preliminary injunction on January 3, 2013, when plaintiff failed to establish the elements necessary for the grant of a preliminary injunction?

2. Did this court abuse its discretion in granting a preliminary injunction on January 3, 2013, where there have been changes in the circumstances of the parties due to the destruction of the residence by plaintiff; the grant of possession of the property and residence to defendants by the 5/25/11 order of the MDJ; and the expenditure of a significant amount of money by defendants to rebuild the residence?

3. Did this court abuse its discretion in granting the preliminary injunction on January 3, 2013, requiring defendants either to pay the sum of $1,500.00 per month or return possession of the property to plaintiff because such injunction is a mandatory preliminary injunction and there has been no wrongful conduct on the part of defendants.

DISCUSSION

This court shall address these issues collectively in setting forth its reasons for the aforesaid order. A person seeking a preliminary injunction must establish certain prerequisites: first, that an injunction is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by damages; second, that greater injury would result from refusing an injunction than from granting it, and, concomitantly, that issuance of an injunction will not substantially harm other interested parties in the proceedings; third, that a preliminary injunction will properly restore the parties to their status as it existed immediately prior to the alleged wrongful conduct; fourth, that the activity the petitioner seeks to restrain is actionable, that its right to relief is clear, and that the wrong is manifest, or, in other words, must show that it is likely to prevail on the merits; fifth, that the injunction sought is reasonably suited to abate the offending activity; and sixth, that a preliminary injunction will not adversely affect the public interest. Greenmoor, Inc. v. Burchick Construction Company, 908 A.2d 310 (2006).

Plaintiff asked for a preliminary injunction to allow him to return to reside in property and to receive past and future rent. This court did not grant him this relief for several reasons. Clearly, the sixth prong of the test was met; a preliminary injunction would not adversely affect the public interest. The fifth prong was also met; plaintiff requested only what he was entitled to under the life estate: occupation of property and rent. The third prong was satisfied; the parties would properly have been restored to their status as it existed immediately prior to the alleged wrongful conduct of plaintiff’s eviction from property.

This court further finds that plaintiff meets the fourth prong of showing that he is likely to prevail on the merits of his case. This court did not find defendants’ evidence as credible as plaintiff’s regarding the life estate. Plaintiff maintains that the May 3, 2006, agreement is the only agreement which he signed. Mr. Hahn contends that the parties executed a different agreement dated May 8,2006. A third agreement of sale dated June 30, 2006, references plaintiff’s occupation of property according to another agreement between the parties, but does not specify any dated agreement. The two May agreements have the same signature page. Obviously, one of these agreements was not signed by all of the parties. Mr. Hahn acknowledged under cross examination that he had nothing from plaintiff authorizing him to collect rent, which was the major difference between the two May agreements. This court found that the same signature page from the May 3,2006, agreement was attached to the May 8, 2006, agreement which Mr. Hahn drafted in an attempt to justify his retention of rent. The May 8, 2006, agreement offered by defendants substantially changed the conditions of the life estate by giving defendants’ rent. This court believes that defendants wrote the later agreement and attached the signature page from the May 3, 2006, agreement to it; it is the very same page that plaintiff attached to his exhibit as the signature page. This court does not believe that plaintiff signed the May 8, 2006, agreement and further finds that plaintiff did not know about it. This court finds that the agreement that was executed by both parties was the agreement dated May 3, 2006.

Although defendants at the hearing defended their action based entirely on the May 8, 2006 agreement, they did not always do so. On cross examination of defendant, the testimony revealed that he never previously defended against plaintiff’s complaint by arguing that the May 8, 2006 agreement even existed and that it said what defendant presented under oath. In fact, defendants actually answered plaintiff’s complaint by referencing the agreement of June 30, 2006, only. Defendant made no mention of a May 8, 2006, agreement.

Mr. Hahn testified that he contacted the constable to help his electrician enter the residence and protect the employees. Very soon thereafter, the police, SAM, and the property maintenance officer were called to the scene, and plaintiff was removed and involuntarily committed. Plaintiff was not competent and needed to be hospitalized. Yet the very next day defendant filed a landlord/tenant action for possession against plaintiff. If plaintiff was not competent at the time of filing the landlord/tenant action, then defendants took advantage of plaintiff and any judgment for possession would be null and void.

Mr. Hahn testified in filing his court action before the MDJ, that it was his goal to attack the agreement as void. Regardless of which agreement defendant claims is binding on the parties, the fact is that a life estate was granted to plaintiff in exchange for great consideration (real estate and monthly cell tower rent) given to defendants. Yet defendants, instead of attacking the agreement as a life estate, alleged that the parties had a landlord and tenant relationship and filed a landlord/tenant complaint with the local MDJ.

According to Pa. R.C.P.M.D.J. No. 530, defendant in his landlord/tenant complaint had to state under oath 1) that he is a landlord, 2) that property is leased or rented, 3) the term for which property is leased or rented, and 4) that said term is “fully ended.” Defendant presented no testimony that he was able to truthfully allege a lease, a lease term, a monthly rent, or that he was a landlord. (.Black’s Law Dictionary (8th Edition) defines landlord as “One who leases real property to another”). Defendant also could not truthfully swear that 5) there was any written or oral month to month lease and that it had ended. Somehow he was able to successfully “evict” plaintiff through the MDJ proceedings.

Unquestionably, plaintiff had a life estate in property. Black’s Law Dictionary (8th Edition) defines estate as “The amount, degree, nature, and quality of a person’s interest in land or other property; especially, a real estate interest that may become possessory, the ownership being measured in terms of duration.” A life estate is further defined as “An estate held only for the duration of a specified person’s life, usually the possessor’s.” A life estate may be created or reserved without use of any particular phrases or words of art. Cheroka v. Tobolski, 151 Pa. Super. 238, 30 A.2d 152 (1943).

This court finds that in the case sub judice, the intent of the parties was to create a life estate and that a life estate was created and held by plaintiff. Therefore, the relationship between the parties was never tenant and landlord; it was that of possessor and remaindermen. Defendants had no legal right to evict plaintiff. Until his death owned that residence, only. The designation “not fit for habitation” may be declared by the township plaintiff for a leased property in a landlord/tenant relationship, only. Defendants had no authority to obtain a license to rent property. Plaintiff is still alive and his possessory interest in property remains.

Neither did defendants have any right to enter his home or to change the electrical circuits; their right of possession has not yet come to fruition.

CELL TOWER RENT

Assuming arguendo, that defendants believed that they were entitled to rent because they had assumed the payments for the outstanding lien of $31,000, they exceeded their entitlement to rent. Defendants have received approximately $105,000.00 in rent. If they would have paid taxes for seven years and paid off the entire $31,000 loan, they would have paid expenses of $97,045.00; however, they didnotpay off the loan. Instead, they paid approximately $27,013.00. Thus, money should have been paid to plaintiff, and it was not. Furthermore, there is no evidence that plaintiff had any responsibility to pay pool expenses. The pool is not excluded from his life estate; if he did not want to fix it because he did not use it, he had no responsibility to do so. Plaintiff’s possessory interest continues in property because he is still alive and his entitlement to rent continues. Defendants reserved a right only to enter property. There is nothing in any agreement that permits them to use any facilities or structures, including the swimming pool, that are located on property. Therefore, this court found that plaintiff will probably prevail on the merits of his case.

CONCLUSION

The reasons that this court did not grant the preliminary injunction as requested were due to prongs one and two. If plaintiff had filed for a preliminary injunction immediately upon his removal from property, this court would have been constrained to grant the preliminary injunction; however, over one year has passed since plaintiff’s unlawful eviction. There are also tenants, defendants’ relatives, who are now living on property who would have been impacted by the grant of a preliminary injunction. For these reasons, this court did not grant the requested preliminary injunction; instead, it attempted to do what was equitable under the circumstances until a trial could be held.

According to plaintiff’s forma pauperis affidavit, plaintiff receives $788.00 per month in Social Security benefits and $70.00 per month in food stamps. He is approximately seventy-eight years old. This court ordered defendants to pay plaintiff $1500.00 per month because plaintiff is dispossessed solely due to defendants’ actions and needs a place to live which is hard to find with his limited funds. If he wins, he will be entitled to all of the rent minus any expenses owed pursuant to the life estate. The expenses that he will owe are considerably less than those owed while he was in possession. By awarding $1,500.00 per month, this court was certain that this is the minimum amount to which plaintiff is entitled.

In accordance with the foregoing opinion, this court submits that its order should be sustained and the appeal denied.