author: JENKINS, J,

text:
    Commonwealth v. Emmanuelle

      January 7, 2011
    C.P. of Delaware County,
    no. 1846-10.

      Jay W. Hannon, for Commonwealth.

      Anna Durbin, for defendant.
   JENKINS, J,

Defendant is a larcenous landlord who obtained advance rent from three would-be tenants but then failed to provide them with lodgings or refund their advances. After a non-jury trial, the court found defendant guilty of three counts of theft by deception and sentenced her on each count to 10 days to 23 months imprisonment followed by three years probation. The sentences on each count run concurrently.

Defendant timely filed post-sentence motions challenging the weight of the evidence, which the court denied. Defendant then filed a timely notice of direct appeal and a timely concise statement of matters complained of on appeal (“concise statement”). For the reasons articulated below, the court finds that the issues raised on appeal are devoid of merit and recommends that defendant’s judgment of sentence be affirmed.

I. Factual History

In June 2009, Chloe Etzler, a Maryland resident and a first-year medical student at Jefferson University, was looking for an apartment to rent near the university. Tr., 7/28/10 (“Tr.”), p. 12. She found an advertisement posted by defendant on Craigslist for a first-floor master bedroom with hardwood floors at 617 Railroad Avenue in Havertown. Tr., p. 13. She e-mailed defendant, who invited her to visit the residence. Tr., p. 14.

On June 10,2009, defendant met Etzler at the residence and showed her a second floor bedroom instead of the first floor room advertised on Craigslist. Tr., p. 16. Defendant told Etzler that she had to pay $ 1,347 to hold the room (first month’s rent, last month’s rent, plus a security deposit). Tr., pp. 16-17. Later that day, Etzler accepted these terms and mailed a check to defendant for $1,347. Tr.,pp. 16,19. Etzler told defendant that she would need the room for the entire school year, and defendant agreed that Etzler could move in on August 1, 2009. Tr., pp. 17-18, 20. Defendant cashed the check five days later. Tr., p. 20.

A few days before August 1, defendant informed Etzler that she could not move in because (a) two other roommates were unable to leave the residence and (b) defendant was putting the residence up for sale. Tr., p. 21. Defendant stated that she would return Etzler’s money. Tr., p. 22. Etzler gave defendant her mailing address but never received a check. Tr., p. 23.

When Etzler tried to contact defendant, defendant sent Etzler an e-mail threatening to refer the matter to her attorney unless Etzler stopped harassing her. Tr., p. 24. Defendant then offered to permit Etzler to move into her living room until one of her roommates was able to move out. Tr., p. 25. Etzler declined the offer. Tr., p. 25.

Defendant subsequently sent defendant a money order for $100 but failed to return the balance. Tr., pp. 28-29.

The second complainant, Elizabeth Sauter, was living in Tennessee and wanted to move back to this area for work-related and personal reasons. Tr., pp. 35-36. She saw an ad on Craigslist for the room at 617 Railroad Avenue. Tr., p. 36. She wrote two e-mails in response to the ad but heard nothing back. Tr., pp. 36-37. In July 2009, she sent a third e-mail, and defendant responded immediately. Tr., pp. 37-38.

Sauter visited the residence twice and then signed a lease for the first floor apartment on August 4, 2009. Tr., pp. 38, 51-53. The lease was missing a second page, but defendant told Sauter that this page did not exist. Tr., pp. 40-42. Sauter and defendant signed the lease and agreed on September 1, 2009 as the move-in date. Tr., p. 43. Sauter also wrote defendant a check for $1,347, which she understood was for the first and last month plus a security deposit. Tr., pp. 43-45. Defendant cashed the check the next day. Tr., p. 45. Relying on this agreement, Sauter stopped looking for a place to live. Tr., p.51.

On August 22, 2009, Sauter telephoned defendant to make sure her room was clean, because she wanted to move some belongings in on August 31. Tr., pp. 45-46. Defendant stated that Sauter could not move things in on August 31 because her roommate could not move out until the morning of the 31. Tr., p. 46. Defendant then said that she had lost her j ob and would have to sell the house because she could not pay her mortgage. Tr., p. 46. She added that two other friends, a man and a woman, one of whom was her lawyer, were moving in. Tr., p. 46. Finally, she said that Sauter’s lease had a two-week cancellation provision, so if Sauter moved in and defendant’s friends wanted to cancel Sauter’s lease, Sauter would have to move out. Tr., p. 46. Confronted with this series of excuses, Sauter replied that the contract was broken and demanded her money back. Tr., p. 46. Defendant stated that she would repay the money within 10-14 days if Sauter wrote a letter to defendant’s attorney as to why the contract was broken. Tr., p. 47. Defendant gave Sauter an incorrect e-mail and mailing address for the attorney, but Sauter discovered the error and sent a certified letter to both defendant and the attorney. Tr., pp. 47-48. Defendant refused to accept the certified letter. Tr., p. 48. Sauter attempted to reach defendant multiple times by e-mail and telephone, but to no avail. Tr., pp. 48-49.

In October 2009, the third complainant, Lisa Foreman, was searching for a place to live in Delaware County. Tr., p. 59. She found the listing for the second floor room at 617 Railroad Avenue on Craiglist and responded to the advertisement. Tr., pp. 59, 61. Defendant immediately contacted Foreman, who visited the residence on October 17, 2009. Tr., p. 60. Defendant told Foreman that she owned the house and gave Foreman a tour. Tr., p. 61. Defendant added that she had previously agreed to rent the room to a man but would rather rent to her because the man gave her a “bad vibe,” while Foreman seemed like a decent person. Tr., p. 62.

Defendant asked for a deposit of first month’s rent, last month’s rent and a security deposit totaling $1,500. Tr., p. 63. Foreman paid $800 on October 17 and $700 on October 29. Tr., pp. 64-65. Defendant told her that she could move in on November 15 or November 24 at the latest, but defendant predicted that her roommate would be out by the 15th. Tr., pp. 65-66. Relying on this agreement, Foreman moved in with her parents in New Jersey instead of renting another place for one month. Tr., p. 67.

In November 2009, defendant told Foreman that she could not move in until November 26 because defendant’s friend had committed suicide and she was out of town for the funeral. Tr., p. 66. A couple of days before November 26, defendant informed Foreman that her roommate had delayed moving out until at least November 30, so Foreman could not move in until December 1. Tr., p. 66. This was highly inconvenient to Foreman because of the lengthy commute between New Jersey and her place of employment in King of Prussia and the high cost of gas and tolls. Tr., p. 67.

On November 30, 2009, defendant told Foreman that she could not move in until December 7 but proposed that Foreman rent another room in the house. Tr., pp. 68-70. Foreman inspected the room but declined because there was a strong cat odor and it was a walk-through room. Tr., p. 70.

On December 6,2009, defendant told Foreman that she could not move in until December 11, 2009. Tr., p. 71. At that point, Foreman requested her $1,500 back. Tr., p. 71. On December 14, 2009, Foreman picked up a check for $1,500 at the office of defendant’s attorney, but the check was post-dated December 24, 2009. Tr., pp. 73-74. Foreman tried three times to cash the check without success. During her first attempt on December 27, 2009, the teller told her that the account lacked sufficient funds. Tr., p. 74. On December 31, 2009 and January 3, 2010, the tellers told her that they were unable to process the check. Tr., p. 74. After many more calls and e-mails from Foreman, defendant sent her a money order for $100. Tr., p. 75. Defendant paid Foreman the balance on March 17, 2010, one day before defendant’s preliminary hearing in this case. Tr., p. 76.

Detective Christake of the Criminal Investigations Unit investigated defendant’s conduct after receiving nine complaints concerning rental agreements at 617 Railroad Avenue in September and October of 2009. Tr., pp. 83-85. He found a number of listings for available rentals in the house on Craigslist. Tr., p. 85.

On October 27, 2009, posing as a Villanova nursing student, the detective responded to an ad posted on October 15, 2009. Tr., pp. 87-88. Later on October 27, he received a response from an “Ash Emmanuelle” with an e-mail address of Ashleyemmanuelle@yahoo.com. Tr., p. 90. Defendant wrote that somebody else wanted the room but was having trouble coming up with the required deposit of the first and last month’s rent and a security deposit. Tr., p. 91. In a subsequent e-mail, defendant wrote that the required deposit was $1,500 consisting of the first and last month’s rent and a security deposit of $400. Tr., p. 91. Interestingly, defendant’s communications with the detective took place within days after she had received $800 from Foreman.

The detective found that defendant had no permit to rent to student or regular renters. Tr., p. 92. The same advertisements for rentals appeared on Craigslist as recently as two weeks before trial. Tr., p. 93.

Defendant testified on her own behalf and admitted having three other rental agreements that fell through. First, in April 2009, she entered into a rental agreement with Jillian Stevenson, but she claimed that Stevenson cancelled the contract. Tr., p. 124. Defendant also claimed that she kept the money because Stevenson did not give her an address to send the money. Tr., p. 124. In May 2009, Kathryn Phillips agreed to rent the room on the first floor and made a deposit of $2,475. Tr., p. 125. Phillips did not move in because defendant delayed the move-in date. Tr., pp. 129-30. Defendant insisted that she could not return the deposit because she filed for bankruptcy on September 24, 2009 and could not give preferential treatment to Phillips under bankruptcy law. Tr., pp. 157-59. Lastly, on September 15, 2009, Peter Murray agreed to rent a room and paid a deposit, but she told him before the scheduled move-in date of October 15, 2009 that she was selling the house. Tr., p. 137.

II. Discussion

A. The evidences as sufficient to support Emmanuelle’s convictions for theft by deception.

Two issues in defendant’s concise statement (1 and 3) challenge the sufficiency of the evidence against her. The court will address these issues in this section.

Issue 1. Defendant argues that the evidence was insufficient to sustain her convictions for theft by deception because the “evidence did not show any false statement or representation on the date defendant obtained money.” The court disagrees.

When reviewing a challenge to the sufficiency of the evidence, Pennsylvania appellate courts must view all the evidence and all reasonable inferences therefrom in the light most favorable to the commonwealth, the verdict winner. Commonwealth v. Widmer, 560 Pa. 308, 318, 744 A.2d 745, 751(2000). The evidence is sufficient to support the verdict when it establishes each material element of the crime charged against the defendant beyond a reasonable doubt. Id. An appellate court “may not weigh the evidence and substitute [its] judgment for the fact-finder.” Commonwealth v. Cassidy, 668 A.2d 1143, 1144 (Pa. Super. 1995). “The commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence.” Commonwealth v. Cunningham, 805 A.2d 566, 571 (Pa. Super. 2002), alloc. denied, 573 Pa. 663, 820 A.2d 703 (2003). The facts and circumstances established by the commonwealth need not preclude every possibility of innocence. Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001), appeal denied, 569 Pa. 716, 806 A.2d 858 (2002). Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. Id.

18 Pa.C.S. § 3922 provides in relevant part:

A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally:
(1) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise. Id.

To obtain a conviction of theft by deception, the commonwealth must demonstrate the presence of a false impression and the victim’s reliance on that impression. Commonwealth v. Lawson, 650 A.2d 876, 880 (Pa. Super. 1994), appeal denied, 540 Pa. 596, 655 A.2d 985 (1995).

According to defendant, she was unable to perform the agreements with the complainants, but she never harbored intent to obtain or withhold the complainants’ money by deception. Intent is “a subjective frame of mind” and is therefore

...difficult of direct proof[.] [W]e must look to all the evidence to establish intent, including, but not limited to, appellant’s conduct as it appeared to his eyes[.] Intent can be proven by direct or circumstantial evidence; it may be inferred from acts or conduct or from the attendant circumstances. Commonwealth v. Roche, 783 A.2d 766, 768 (Pa. Super. 2001), appeal denied, 568 Pa. 736, 798 A.2d 1289 (2002).

There is ample circumstantial evidence of defendant’s intent to obtain and withhold the complainants’ money by deception on the dates she obtained money. Defendant was in serious financial trouble and eventually had to file for bankruptcy. To ease her financial woes, she lured the three complainants (Etzler, Sauter and Foreman) into renting specific living space in her house and paying well over $1,000 as “advance rent” and “security deposits.” Each complainant relied on her promise to rent residential space and stopped looking for other places to live. Instead of providing lodgings, defendant cashed their checks and then invented multiple excuses to prevent them from moving in. In Etzler’s case, defendant cancelled the lease, claiming that two roommates would not move out and that she had to sell her house due to financial troubles. In Sauter’s case, defendant stated that she had to sell her house, leaving Sauter with the prospect of dealing with an unknown landlord. In Foreman’s case, defendant repeatedly pushed back the move-in date by claiming, among other things, that her present roommate had still not moved out. All three complainants demanded their money back, but defendant avoided them through a variety of stalling tactics, such as (a) ignoring phone calls and e-mails, (b) refusing to accept letters demanding payment, (c) promising to return the money but doing nothing, (d) promising to repay the money if the complainant wrote a letter to defendant’s attorney as to why the lease was broken, but then doing nothing after her attorney received the letter, (e) threatening legal action if the complainants kept on harassing her, and (f) in Foreman’s case, giving her a post-dated check which the bank refused to cash. Defendant never paid Sauter back and only paid $ 100 back to Etzler. She repaid the entire amount back to Foreman, but only after criminal charges were filed. She also admitted collecting advance rent from three other people without returning their money: Jillian Stevenson, Kathryn Phillips and Peter Murray. She even attempted to obtain advance rent from Detective Christake a few days after receiving advance rent from Foreman, thus demonstrating intent to defraud more than one person at the same time.

In the words of § 3922, the evidence demonstrates defendant’s pattern of “obtaining] and withhold [ing]” monies from victims by “creating the false impression” that they were paying advance rent for living space, then deliberately failing to provide such space, and then stalling or avoiding the victims when they attempted to get their money back. The victims relied on defendant’s false impressions by paying advance rent and by no longer searching for places to live. This evidence is as convincing as other appellate cases which have upheld theft by deception convictions. See Commonwealth v. Fisher, 682 A.2d 811, 813-14 (Pa. Super. 1996) (sufficient evidence supported convictions on 21 counts of theft by deception arising out of defendant’s actions in convincing people to trust him and purchase property or services from him; victims relied upon defendant’s misrepresentations that land was perkable and suitable for building when they purchased land, the fact that land was not perkable affected value of land, defendant failed to perform contracted-for perk tests, he failed to construct shell homes as required under certain contracts, and he repeatedly failed to return owed money to his dissatisfied customers, opting instead to avoid their phone calls and to take extended trips to Bermuda); Commonwealth v. Atwood, 601 A.2d 277, 285 (Pa. Super. 1991) (evidence supported conviction of defendant for theft by deception in connection with loan he obtained for $1,000; victim testified that defendant told her he would repay money prior to loan coming due, when victim tried to contact him at phone number he gave her she learned number was no longer in service, and defendant never attempted to contact her after loan balance became due); Commonwealth v. Posavek, 420 A.2d 532, 536 (Pa. Super. 1980) (evidence, other than fact that promises were not performed, was sufficient to prove theft by deception; while defendant was cooperative before victim paid him, victim had great difficulty contacting defendant after paying him).

Citing Commonwealth v. Bentley, 448 A.2d 628 (Pa. Super. 1982), and Commonwealth v. Dunmeyer, 5 D. & C. 3d 30 (Somerset Cty. 1977), defendant argues that defendant intended to perform her agreements at their inception but simply failed to perform her promises, conduct which § 3922 exempts from criminal liability. These decisions are inapposite. Bentley held that the defendant did not commit theft by deception by obtaining partial payments on a home improvement contract. Although defendant failed to finish the job, he expended substantial resources on the job by working over an eleven-day period and using between two and four men to tear down an old porch and garage and install a footer. Unexpected complications kept the defendant from finishing the job (the type of concrete block to be used, the width of the porch and other expenses), but he did not intend to steal money from the homeowners without performing work. Similarly, in Dunmeyer, the defendant began but did not finish a painting contract. The trial court held that the defendant did not make false factual promises at the time he entered into the contract, but that extenuating circumstances prevented him from performing (his loss of his driver’s license and inability to find help).

The defendants prevailed in Bentley and Dunmeyer because they intended to carry out their agreements at their inception and made good faith, albeit unsuccessful, attempts to perform. In this case, however, the commonwealth has submitted ample circumstantial evidence that defendant never intended to honor her agreements to lease rooms to the complainants. She intentionally dishonored the agreements by taking money from the complainants, preventing them from moving in, and going to elaborate lengths to avoid repaying them. Fisher, Atwood, Posavek, supra. And while the defendants in Bentley and Dunmeyer only failed to perform one agreement, the present defendant (a) breached three agreements over a six-month period in 2009 shortly before taking refuge in bankruptcy court, (b) quite possibly breached multiple others, given her testimony about Stevenson, Phillips, and Murray, and (c) attempted to obtain advance rent from another person, Detective Christake, at the same time Foreman was paying her advance installments.

Thus, the evidence demonstrates that defendant made false statements or representations on the dates she obtained money from the complainants.

Issue 3. Defendant alleges in the third issue in her concise statement that the court erred in denying her motion for judgment of acquittal at the end of the prosecution’s case.

This is no longer a viable issue. When, as here, the defendant does not rest following the denial of a motion for judgment of acquittal at the close of the commonwealth’s case, but instead puts on a case in defense, the correctness of the ruling on the motion for judgment acquittal is no longer an available issue. Once the trial has proceeded to the presentation of defense evidence, the proper challenge on appeal is to the sufficiency of the entire body of trial evidence. Commonwealth v. Hammock, 466 A.2d 653, 654 (Pa. Super. 1983) (citing Commonwealth v. Ilgenfritz, 466 Pa. 345, 347, 353 A.2d 387, 388 (1976)).

Even if this issue were permissible, it would not succeed on the merits. The evidence is sufficient to sustain defendant’s convictions even without considering defendant’s evidence, because the testimony of the three complainants and Detective Christake clearly established all elements of the theft charges.

B. The verdict was consistent with the weight of the evidence.

Four issues in defendant’s concise statement (2, 7, 8 and 9) challenge the weight of the evidence against her. The court will address these issues in this section.

Issue 2 states that the verdict was against the weight of the evidence, “because the evidence showed that the defendant had rooms available at the time she received security deposit and rent money. Renters changed their mind and breached the contracts with defendant.” Defendant preserved this issue for appeal by filing post-sentence motions challenging the weight of the evidence. Pa.R.Crim.R 607(A)(3).

An allegation that the verdict is against the weight of the evidence

...is addressed to the discretion of the trial court. Our Supreme Court has explained that appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. A motion for new trial on the grounds that the verdict is contrary to the weight of the evidence, concedes that there is sufficient evidence to sustain the verdict. Thus, the trial court is under no obligation to view the evidence in the light most favorable to the verdict winner. A new trial should be awarded when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. Stated another way, and as the trial court noted, this court has explained that the evidence must be so tenuous, vague and uncertain that the verdict shocks the conscience of the court. Commonwealth v. Sullivan, 820 A.2d 795, 805-806 (Pa. Super. 2003), appeal denied, 514 Pa. 773, 833 A.2d 143 (2003).

The question the trial court must answer, in the sound exercise of its discretion, is whether “notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.” Sullivan, 820 A.2d at 806 (citing Commonwealth v. Widmer, 560 Pa. 308, 320, 744 A.2d 745, 752 (2000)). Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court’s determination that the verdict is against the weight of the evidence. Widmer, supra, 744 A.2d at 753. “A trial court’s exercise of discretion in finding that a verdict is or is not against the weight of the evidence is ‘one of the least assailable reasons for granting or denying a new trial.’” Id. The court only abuses its discretion when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will. Id.

The court acted well within its discretion by denying defendant’s challenge to the weight of the evidence. In essence, defendant argues that the court erred by crediting the commonwealth’s witnesses instead of her. The court, however, was free to believe all, part, or some of each witness’s testimony. It carefully studied each witness and found the commonwealth’s witnesses credible; defendant, on the other hand, struck the court as evasive and self-serving.

Etzler, the first complainant, testified that between July 28, 2009 and August 3, 2009, defendant informed her that the upstairs room she rented was not available because her two roommates were unable to leave. Etzler stated that defendant offered to allow her to “camp out [in her living room] until one of her roommates was able to move out.” Tr., p. 25. Defendant claimed that the room was vacant and ready for Etzler by August 1, but Etzler breached the agreement by telling defendant that she decided to live closer to medical school. Tr., pp. 120-22. These different accounts raised a garden variety question of fact that the court determined in favor of the commonwealth, as it had full authority to do as factfinder. Since this decision rested upon sworn testimony of a credible witness, it was not “so contrary to the evidence as to shock one’s sense of justice.” Sullivan, 820 A.2d at 806.

Sauter, the second complainant, testified that after she signed the lease, and shortly before her move-in date, defendant told her that she would have to sell her house because she could not pay her mortgage. Tr., p. 46. Sauter cancelled the lease and requested her money back, but she never received it. Defendant agreed that she told Sauter about her need to sell the house. Tr., p. 116. She further contended that Sauter “changed her mind” about moving in at the last minute. Tr., p. 117. Defendant agreed that she initially agreed to pay Sauter back. Tr., p. 117. Nevertheless, she had to file Chapter 7 bankruptcy to avoid a tax sale on her house, and paying Sauter without paying other creditors would have violated bankruptcy law:

Under bankruptcy code, you have to treat all creditors equally. You can’t pay a preference to one creditor because the U.S. Trustee then is able to come and take back those payments, and if you’re trying to pay back friends, that’s...considered paying back insiders. Tr., pp. 118-19.

Defendant’s attempt to use bankruptcy preference law as a shield against criminal liability does not ring true. Defendant’s demeanor on the witness stand, as well as her pronounced pattern of taking advance rent from individuals without paying them back, made clear that she intended, from the date she entered into the lease onward, to keep Sauter out of the house without paying back the money. This was a credibility determination that the court had full authority to make, and it was not “so contrary to the evidence as to shock one’s sense of justice.” Sullivan, 820 A.2d at 806.

Finally, Foreman, the third complainant, testified that she entered into a lease with defendant on October 19, 2009 and paid her $1,500 in two installments before the end of the month. Throughout November and December, defendant kept pushing back the move-in date with a series of excuses. At one point, defendant promised to leave a key for Foreman under the flower pot but failed to do so. Tr., p. 78. The room was not available on December 7. Tr., pp. 70-72. At that point, Foreman cancelled the lease and demanded her money back. Shortly before cancellation, defendant suggested that Foreman rent another room in the house, but Foreman found the room unsatisfactory because there was a strong cat odor and it was a walk-through room that compromised her privacy. Tr., pp. 63-72. Despite Foreman’s efforts to obtain repayment, defendant failed to pay Foreman back until the day before the preliminary hearing.

Defendant claimed that she gave Foreman a key in timely fashion. Tr., p. 113. She insisted that she was not to blame for any delays in Foreman’s move; the fault lay with another roommate, Amanda, who kept delaying in moving out. Tr., pp. 110-12. Finally, she claimed that the room Foreman wanted was available by December 7, 2009, but Foreman no longer wanted to move in and demanded her money back. Tr., p. 114. Once again, having observed Foreman’s and defendant’s demeanor and carefully weighed the evidence, the court finds Foreman believable and defendant less than credible. And once again, the court had full discretion to make this determination.

Issues 7-8. Defendant raises two virtually identical claims: first, that the court “erroneously held witness’s ability to understand contract not relevant to their breaches of contract, which negated criminal intent and rendered this a civil dispute,” and the court “erroneously disregarded the witnesses’ breaches of contract and changes of mind, which should have made this a civil matter.” These boil down to the same claim as in issue 2, viz., the court should have accepted defendant’s version of events and rejected the complainants’ testimony. For the reasons provided above, the court rejects these arguments. Furthermore, this case concerns defendant’s intent, not the complainants’. The court determined that defendant’s intent was criminal; accordingly, it rejects defendant’s attempt to downplay this as a “civil dispute.”

Issue 9. Defendant contends that the court erred “when it disregarded the defendant’s inability to return deposits because of [the] illegal preference rule of Bankruptcy court.” The court addressed this argument above on pages 15-16 and finds it meritless.

C. Defendant’s objections to evidentiary rulings (Issues 4-6) are devoid of substance.

In Issue 4 of her concise statement, defendant states that the court erroneously permitted inadmissible hearsay testimony from commonwealth witnesses. Defendant has waived this issue by failing to specify the alleged inadmissible hearsay. Pa.R.A.P. 1925(b)(iv, vii); Commonwealth v. Allshouse, 969 A.2d 1236, 1239 (Pa. Super. 2009) (citing Commonwealth v. Thompson, 778 A.2d 1215, 1223 (Pa. Super. 2001), appeal denied, 567 Pa. 725, 786 A.2d 988 (2001)) (“when a court has to guess what issues an appellant is appealing, that is not enough for meaningful review”).

In any event, this objection does not warrant relief. There was only one hearsay objection by defense counsel that the court overruled. The commonwealth asked Detective Christake about “the nature of the complaints that you received.” Tr., p. 84. He responded, over objection, that he was investigating “fraudulent activity at [defendant’s] address, scams going on on Craigslist.” Tr., p. 84. The commonwealth did not offer this testimony for its truth but to show the effect of the complaints on tlv' detective’s course of conduct. An out-of-court statement offered not for its truth but to explain the witness’s course of conduct is not hearsay. Commonwealth v. Sneed, 514 Pa. 597, 526 A.2d 749, 754 (1987) (where police officer related contents of radio call that prompted his trip to crime scene, such testimony was not hearsay because it was introduced solely to explain how the officer came to be at the scene).

In Issue 5, defendant argues that the court erroneously admitted evidence of “other bad acts.” defendant has waived this issue by failing to specify the alleged bad acts. Pa.R.A.P. 1925(b)(iv, vii); Allshouse, supra. Furthermore, assuming that defendant is referring to evidence obtained from defendant on cross-examination concerning her rental transactions with Stevenson, Phillips, and Murray, defendant waived this issue by failing to make any objection during trial. Commonwealth v. Bryant, 579 Pa. 119, 855 A.2d 726, 740 (2004) (failure to lodge timely objection to testimony waives any challenge to that testimony on appeal). Finally, these transactions were admissible under Pa.R.E. 404(b) to demonstrate defendant’s motive and intent.

In Issue 6, defendant complains that the court erroneously sustained multiple objections concerning her efforts to return money to the complainants. Defendant has waived this issue by failing to specify the objections that the court sustained. Pa.R.A.P. 1925(b)(iv, vii); Allshouse, supra. In any event, the court permitted evidence that defendant paid Etzler a $100 money order and repaid Foreman in full. Tr., pp. 28, 81.

D. Defendant’s challenge to her sentence is devoid of merit.

Finally, defendant argues that her sentence of 10 days to 23 months imprisonment is excessive and unreasonable. Theft by deception is a first degree misdemeanor punishable by up to five years imprisonment. 18 Pa.C.S. § 1104. This sentence is well within the maximum period of confinement. It also falls within the standard range of the Sentencing Guidelines, which recommend up to a minimum of one month imprisonment for defendants with no prior offenses and an offense gravity score of 3. N.T., 9/7/10, p. 3 (sentencing hearing). Therefore, defendant’s sentence is entirely reasonable.

CONCLUSION

For the foregoing reasons, defendant’s judgment of sentence should be affirmed.


source: Caselaw Access Project

author: HODGE, J.,

license: Public Domain

text:
    City of New Castle Police Pension Plan v. Lepore

      January 5, 2011
    C.P. of Lawrence County,
    no. 1030 of 2009, C.A.

      James C. Conley, for plaintiff.

      Sarah Andrews, for defendant Donnette Lepore.

      James W Manolis, for defendant Antonio Lepore.
   HODGE, J.,

This case was before the court on August 24, 2010 for a hearing/argument regarding Donnette Lepore’s and Antonio Lepore’s entitlement to benefits from a pension plan established by the City of New Castle on behalf of the late Robert J. Lepore. This judge obtained jurisdiction over this case after the untimely death of the Honorable Senior Judge Charles R. Alexander. After a brief discussion with counsel for the defendants, this court agreed to proceed towards a resolution of the case as scheduled. All parties agreed that the court should enter an order after a review of the court transcript, the corresponding recording, including any briefs filed on behalf of the parties, and any and all applicable case and statutory law. This opinion timely follows.

At the time of his death, Robert was employed as a police officer for the city of New Castle. During the course of his employment, Robert contributed to the City of New Castle Police Pension Plan, and made accumulated contributions totaling $34,566.05. On June 25, 2009 the City of New Castle Pension Plan filed a complaint for equitable interpleader, which named Donnette Lepore and Antonio Lepore as the defendants. The city filed the complaint in order to resolve Donnette’s and Antonio’s conflicting claims to the $34,566.05 in accumulated contributions.

Each defendant filed a statement of claim to the city’s complaint. Donnette believes that she is entitled to a portion of the accumulated benefits as she and Robert were married for almost six years, during which time Robert made contributions to his pension plan. Specifically, Donnette and Robert were married on November 23, 1993. They were separated on July 27, 1999 and subsequently divorced on February 6, 2004. Antonio Lepore is Robert’s natural brother. Antonio believes he is entitled to the $34,566.05 in its entirety as Robert executed a beneficiary designation form that named his brother, Antonio, as beneficiary of his pension after he and Donnette were separated.

Distribution of benefits evolving from the New Castle City Pension Plan (hereinafter “pension plan”) is governed by the codified ordinances of the City of New Castle as defined in Article 169 titled Police Pension Plan. Any individual participating in the pension plan is required to contribute to the pension plan. These contributions will not be returned to the participant until they have vested. Vesting occurs once an individual reaches the normal retirement age (designated here as 55 years old) and has served the city for at least 25 years. § 169.06(c). In this case, Robert Lepore was 44 years old at the time of his death and had serviced as a city police officer for only 18 years. As such, the only available option for distribution of the accumulated benefits is an equal return of said benefits to a named beneficiary, as designed by the participant/employee, on the beneficiary designation form. § 169.06(c); §169.01(a)(8).

Donnette’s statement of claim to a specific portion of the accumulated benefits is based on the fact that prior to Robert’s untimely death, on July 28, 2008, he and Donnette were involved in ongoing divorce proceedings. By order of court dated September 16, 2004, the court address how the marital component of Robert’s pension plan was to be divided.

That order of court specifically provided:

The marital component of the plaintiff’s City of New Castle Police Pension should be distributed between the parties equally and the distribution of this pension should be deferred so that the defendant shall receive 50 percent of the marital portion of the accrued monthly marital benefit as of the date of the separation. Likewise, the plaintiff should receive 50 percent of the marital portion of the accrued monthly marital benefit as of the date of the separation.
The plaintiff shall, at his expense retain separate counsel, or an individual with sufficient expertise, to prepare an appropriate Qualified Domestic Relations order in order to effectuate this transfer...

However, no qualified domestic relations order was ever prepared by Robert or entered by either party. Yet, Donnette asserts that this fact alone does not preclude her from curing the error by entering a subsequent QDRO, even after the death of the payor spouse, as the court order of September 16, 2004 was in effect prior to Robert’s death. In support of her argument, Donnette cites numerous cases from federal courts located outside of the third circuit, holding that the Employee Retirement Income Security Act (ERISA) does not preclude a payee spouse from “perfect[ing] the DRO by qualifying it after the death [of the payor spouse].” Statement of claim filed on behalf of Donnette Lepore, pp. 3.

Although the case law cited by counsel for Donnette is not binding on these proceedings, this court is willing to make further inquiry for the purposes of guidance and persuasion. In the case of Hogan v. Raytheon, 302 F.3d 854 (8th Cir. 2002), a former spouse of a deceased employee brought an action against the deceased spouse’s employer, alleging that she was entitled to receive surviving spouse benefits under the employee’s Employee Retirement Income Security Act (ERISA) plan, pursuant to their divorce decree. Id. at 855. The district court entered summary judgment in favor of former spouse, and the deceased spouse’s employer appealed. Id. The appeals court determined that the domestic relations order was in fact a valid qualified domestic relations order (QDRO) under ERISA, and the former spouse was not precluded from obtaining surviving spouse benefits regardless of the fact that the employee spouse died prior to a final domestic relations order being entered. Id. at 857.

However, this case is factually different than those cited by Donnette. The primary difference is that the Employee Retirement Income Security Act does not apply in this case as the pension plan is a governmental plan, see 29 U.S.C.A. 1003(b)(i). Additionally, the court finds that the issue of distributing the available benefits from Robert’s pension is not based on whether or not a subsequent QDRO may be entered. The order of court dated September 16, 2004 adequately addresses how the marital component of the pension plan should be distributed, and this court relies on that specific order for guidance in determining an appropriate resolution to this case.

The September 16, 2004 order awarded Donnette a deferred distribution of 50 percent of the marital portion of the accrued monthly marital benefit of Robert Lepore’s pension plan as of the date of the separation. Requiring the distribution to be deferred when there are insufficient marital assets to effectuate an immediate offset distribution of pension benefits is common practice by courts when determining an equitable resolution to economic claims. See e.g.; Brown v. Brown, 547 Pa. 360, 690 A.2d 700 (Pa. 1997); Berrington v. Berrington, 534 Pa. 393, 633 A.2d 589 (Pa. 1993); Elhajj v. Elhajj, 605 A.2d 1268 (Pa.Super. 1993). However, due to Robert’s untimely death, his pension plan cannot be deferred and is subject to a simple return of all accumulated contributions made thereto.

In her statement of claim, Donnette asserts that in lieu of the September 16, 2004 order, she expected to receive the equivalent of $11,360.00 from Robert’s pension plan as part of the parties’ property settlement agreement. Donnette supports this assertion by arguing that the September 16, 2004 order considered the totality of the economic circumstances of the party and because there is sufficient assets in the accumulated benefits contributed to Robert’s pension plan, she should be awarded the anticipated amount of $11,360.00. However, this court finds this argument to be without merit, as the September 16, 2004 order did not consider the fact that Robert’s pension plan would not vest due to his untimely death and result in severe forfeiture of accumulated assets. Donnette’s expectation of $11,360.00 in deferred distributions is just that: a mere expectancy contingent on the fact that the accumulated contributions made by Robert to the pension plan from the date of marriage to the date of separation would in fact vest. However, this condition failed to occur, and the only available distribution is an equal return of the contributions made to the pension plan. As such the court rejects Donnette’s argument that she is entitled to the expected deferred value of one half of the martial portion of the accrued monthly marital benefit as of the date of the separation.

The court next considered the evidence presented at the August 24, 2010 hearing in the form of testimony elicited from Joshua Letore, a finance clerk for the City of New Castle’s Financial Department, that during the course of Robert and Donnette’s marriage, Robert contributed a total of $9,399.58 to the pension plan. Counsel for Donnette did not attempt to refute this fact, and instead argued that the court should consider the total length of Robert and Donnette’s marriage to calculate a coverture fraction by which themaritalcomponentofRobert’spension shouldbe calculated. In support ofher argument, counsel for Donnette offers the case of Smith v. Smith, 595 Pa. 80, 938 A.2d 246 (Pa. 2007). In Smith, the former wife wanted to share in an increased pension benefit, which her ex-husband obtained after their separation when the Pennsylvania legislature created a new class of benefits. 938 A.2d at 251. The trial court held that the increase was not due to post-separation efforts or contributions of husband and, thus, was marital property and subject to equitable distribution. On appeal, the Superior Court reversed the trial court’s determination and found that the pension increase was a result of husband’s increased contributions and was not marital property subject to equitable distribution. Id. Wife petitioned the Pennsylvania Supreme Court for allowance of appeal. The Supreme Court held that: 1) courts should allocate defined benefit pension between its marital and nonmarital portions solely by use of a coverture fraction; 2) portion of post-separation enhancement of pension derived from employment after husband’s election of a new class of pension benefits, which was attributable to an increase in payroll deduction, was husband’s nonmarital property, but the value of the pension that would have resulted naturally from husband’s continued employment was marital property; and 3) post-separation enhancement of pension accrued prior to effective date of husband’s election was marital property.

The Smith court’s decision established very specific methods for equitably distributing pension plan benefits, consistent with the Pennsylvania legislature’s newly added provisions to the Pennsylvania Divorce Code, § 3501(c). However, the Smith court’s holding that enhancements to pension benefits, arising after separation, are generally included in marital property, also specifically excluded enhancements to the pension arising from post-separation monetary contributions made by the employee spouse. Smith, 595 A.2d at 259; 23 Pa.C.S. §3501(c). Thus, while any post-separation increases in the pension plan due to the legislature creating a new class of pension benefits were attributable as marital property, any increases that were a result of husband’s post-separation monetary contributions were not. Id. at 261.

In the case sub judice, Donnette’s argument that this court should consider the total length of Robert and Donnette’s marriage to calculate a coverture fraction by which the marital component of Robert’s pension should be calculated must fail after a thorough review of the controlling case law set forth in the Smith case. Any contributions made to Robert’s pension plan after the date of separation would be a result of husband’s own monetary contributions and are therefore not marital property. As such, this court accepts the testimony of Jashua Letore that the total amount contributed by Robert to the pension plan from the date of marriage until the date of separation equals $9,399.58. The sum of $9,399.58 shall equal the marital component of Robert’s pension plan for the purposes of equitable distribution.

This court does, however, accept Donnette’s argument that she is entitled to one half of the marital component of Robert’s pension plan, which he established from the date of their marriage to the date of their separation. Statement of claim, filed on behalf of Donnette Lepore, pp. 4. The September 16, 2004 order clearly sought to divide the marital portion of the pension plan in halves with Donnette and Robert each being awarded an equal amount. Although the case law cited by Donnette in support of her argument that subsequent steps can be taken in order to qualify a domestic relations order for the purposes of enforcing a prior order of court are not binding, and with the court previously noting that the Employee Retirement Income Security Act and the Pension Plan Act of 2006 do not apply in this case as the pension plan is a governmental plan, see29U.S.C.A. 1003(b)(i), the court is not precluded from honoring the intention and the directive of the September 16, 2004 order.

As such the court finds that Donnette shall be awarded the sum of $4,699.79, being one half of the $9,399.58 contributed by Robert to the pension plan from the date of his marriage to Donnette through the date of their separation. Antonio as the named beneficiary shall be awarded the balance of the accumulated benefits in the sum of $29,866.26 ($34,566.05 less the $4,699.79 awarded to Donnette).

ORDER OF COURT

And now, January 5, 2011, this case being before the court for a hearing/argument on August 24, 2010, regarding Donnette Lepore’s and Antonio Lepore’s entitlement to benefits from a pension plan established by the City of New Castle on behalf of the late Robert J. Lepore, and with Donnette Lepore being represented by Sarah Andrews, Esquire and Stephanie Reiss, Esquire from the law firm of Morgan, Lewis & Bockius, and with Antonio Lepore being represented by James Manolis, Esquire, and the court having made a thorough review of all testimony presented as well as the corresponding record, it is hereby ordered and decreed as follows:

1. The prothonotary of Lawrence County shall distribute the $34,566.05 in accumulated contributions from the New Castle Police Pension Plan resulting from said contributions being made by Robert J. Lepore in the following manner:

a. Donnette Lepore shall receive a sum of $4,699.79.
b. Antonio Lepore shall receive the balance of the accumulated benefits in the sum of $29,866.26.

2. Donnette Lepore and Antonio Lepore shall each receive an allocable share, 13.60 percent to Donnette Lepore and 86.40 percent to Antonio Lepore, of any interest earned on the accumulated contributions while said contributions were deposited with the prothonotary of Lawrence County.

3. The prothonotary shall properly service notice of this order and opinion upon counsel of record for the parties.


author: SIBUM, J.,

text:
    Zinskie v. Terraciano
    C.P. of Monroe County,
    no. 10430 CV 2007.

      Lawrence A. Durkin, for plaintiffs.

      Jennifer L. LeVan, for defendants.

      November 29, 2010
   SIBUM, J.,

This matter comes before the court on defendants’ motion for summary judgment. Plaintiffs commenced this action seeking to recover damages for injuries sustained as a result of an automobile accident allegedly caused by defendants’ negligence. Plaintiffs claim defendants were negligent in failing to remove an injured deer from plaintiff Paul Zinskie’s lane of travel after defendant Angela Terraciano hit the deer while traveling on Interstate 80. Plaintiffs filed a complaint on January 25, 2008. Defendants filed an answer with new matter on February 20, 2010, and plaintiffs responded by filing a feply to defendants’ new matter on February 26, 2010. Defendants then filed a motion for summary judgment and supporting brief on July 2, 2010. Plaintiffs filed an answer to the motion for summary judgment, affidavit, and opposing brief on October 1, 2010.

Both parties argued their respective positions before the court on November 1, 2010, and we are now prepared to decide this matter.

DISCUSSION

Pennsylvania Rule of Civil Procedure §1035.2 permits the trial court to dismiss an action after the close of pleadings where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 204, 412 A.2d 466, 468-69 (Pa. 1979). Summaiy judgment may only be entered where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law. Brecker v. Cutler, 578 A.2d 481 (Pa. Super. 1990).

Summary judgment may be granted only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co., 522 Pa. 367, 369, 562 A.2d 279, 280 (Pa. 1989). Only when the facts are so clear that reasonable minds cannot differ may a trial court properly enter summary judgment. Basile v. H&R Block, 563 Pa. 359, 761 A.2d 1115 (2000). The trial court must view the record in the light most favorable to the non-moving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Potter v. Herman, 762 A.2d 1116 (Pa. Super. 2000). The moving party bears the burden of proving that no genuine issue of material fact exists. Long v. Yingling, 700 A.2d 508, 512 (Pa. Super. 1997).

In response to a motion for summary judgment, the non-moving party may not rest upon the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973). Failure to allege such specific facts will result in summary judgment, if appropriate, against the non-moving party. Pa.R.C.P. 1035.3; Overly v. Kass, 554 A.2d 970 (Pa. Super. 1989). The court must also accept as true all well-pled facts contained in the non-moving party’s pleadings. Mattia v. Employers Mut. Cos., 440 A.2d 616 (Pa. Super. 1982). The court must ignore contested facts contained in the pleadings and restrict its view to allegations in the pleadings that are uncontroverted and to material filed in support of and in opposition to a motion for summary judgment. Nationwide Mutual Ins. Co. v. Nixon, 682 A.2d 1310, 1313 (Pa. Super. 1996), allocator denied, 693 A.2d 589 (Pa. 1997) (citation omitted).

In the case now before the court, plaintiffs contend that defendants were negligent in failing to avoid hitting a deer on the highway, failing to take steps to alert oncoming vehicles of the injured deer in the road, and failing to remove the injured deer from the travel lanes and/or contact authorities to remove the deer. Defendants, on the other hand, filed a motion for summary judgment claiming that they owed no duty of care to plaintiffs at the time of the accident nor had an affirmative duty to either alert oncoming vehicles of a hazardous condition on the roadway within minutes after the accident occurred or remove the injured deer from the highway. Defendants argue that since no duty of care was owed to plaintiffs, there are no genuine issues of material fact regarding liability in this case, and defendants are entitled to summary judgment.

In order to render our decision on defendants’ motion for summary judgment, we must review the facts in the light most favorable to the non-moving party. The record reveals the following. On December 2, 2005, defendant Angela Terraciano was driving her vehicle on Interstate 80 west, [complaint, ¶6, 7; answer, ¶6, 7] Her husband, defendant James Terraciano, was following behind her driving a truck, [complaint, ¶7; answer, ¶7] While Angela Terraciano was traveling west bound on the interstate, a deer appeared in her travel lane causing her to hit the deer, seriously injuring it. [complaint, ¶8; answer, ¶8] After hitting the deer, Angela Terraciano pulled her vehicle off the roadway onto the south berm of the highway, [complaint, ¶9; answer, ¶9] James Terraciano then pulled his truck off the road and stopped behind his wife’s vehicle. [Id.] Plaintiff Paul Zinskie’s vehicle, while also proceeding west on Interstate 80, subsequently hit the injured deer that was lying in the roadway, causing his vehicle to leave the travel lanes and hit the rear of James Terraciano’s truck, [complaint, ¶12; answer, ¶12] Plaintiffs argue that the hitting of the deer by Paul Zinskie was caused by the negligent acts of Angela Terraciano. [complaint, ¶15]

Plaintiffs specifically allege that Angela Terraciano’s act of hitting the deer and not taking steps to remove it from the travel lanes of the highway, and/or warn oncoming vehicles of a hazardous condition violated a duty of care she owed to Paul Zinskie. [complaint, ¶16] Plaintiffs further allege that James Terraciano violated a duty of care by failing to remove the deer from the highway, failing to alert oncoming vehicles, and/or exiting his parked vehicle and talking with his wife while the injured deer continued to occupy the travel lanes. [Id. at 30] Furthermore, plaintiffs aver that defendants did not utilize their four-way flashers; however, defendants assert that James Terraciano exited his vehicle, leaving his headlights and four-way flashers on. [MSJ, ¶9; answer to MSJ, ¶9] As a result of these events, defendants’ negligent actions caused Paul Zinskie to be seriously injured and his vehicle to be badly damaged, [complaint, ¶13, 31]

Defendants, in their motion for summary judgment, argue that plaintiffs have failed to provide facts to support their averments that defendants owed a duty of care to plaintiff Paul Zinskie and violated said duty of care. [MSJ, ¶13, 14] Defendants aver that they did not owe a duty of care to plaintiffs and therefore did not breach that duty nor did they have an affirmative duty to alert oncoming vehicles of a hazardous condition or remove the injured deer from the travel lanes. [MSJ, ¶ 18-20] Therefore, defendants aver there are no genuine issues of material fact regarding liability in this case. We agree.

Negligence is the absence of ordinary care that a reasonably prudent person would exercise in the same or similar circumstances. Martin v. Evans, 551 Pa. 496, 502, 711 A.2d 458, 461 (Pa. 1998), citing Lanni v. Pennsylvania R. Co., 88 A.2d 887 (Pa. 1952). To recover under a claim for negligence, the plaintiff must prove the following elements: “that the defendant owed a duty of care to the plaintiff, the defendant breached that duty, the breach resulted in injury to the plaintiff, and the plaintiff suffered an actual loss or damage.” Martin, Id. at 461, 711 A.2d 458 at 502. The mere occurrence of an accident does not establish negligent conduct; rather, the plaintiff carries the burden of establishing that the defendant engaged in conduct that deviated from the general standard of care expected under the circumstances. Id.

Under the negligence standard, we must first determine whether defendants owed a duty of care to plaintiffs at the time the incident occurred. The determination of whether a duty exists in a particular case involves the weighing of several discrete factors which include: (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the public interest in the proposed solution. Gutteridge v. A.P. Green Services, Inc., 804 A.2d 643, 655 (Pa. Super. 2002). (internal citations omitted) Unless there is a duty upon the defendant in favor of the plaintiff which has been breached, there can be no cause of action based upon negligence.

In Rippy v. Fogel, 529 A.2d 608 (Pa. Cmwlth. 1987), an injured passenger sued both the driver and the commonwealth for injuries sustained when the driver’s automobile collided with a deer walking on the highway. Rippy, 529 A.2d at 609. The commonwealth filed a demurrer alleging that the action against it did not fall within any of the enumerated exceptions to sovereign immunity, specifically 42 Pa.C.S.A. §8522(b)(4), which allows liability against the commonwealth for a dangerous condition of the highway. Id. The Commonwealth Court held that a deer on the highway was not a dangerous condition of the highway upon which to predicate liability and granted the commonwealth’s demurrer. Id.

Although the concept of sovereign immunity is inapplicable to the instant case, we find it unreasonable to hold a private citizen to a standard to which the commonwealth itself is not even held. The court in Rippy held that the commonwealth was not responsible for injuries caused by a vehicle colliding with a deer on the highway. We believe the same should apply to motorists. We find no case law, nor have the plaintiffs provided the court with any, which states that a motorist owes a duty of care to another motorist in regards to either hitting a deer, removing an injured deer from the roadway, or alerting oncoming traffic of a dangerous condition. Furthermore, the Rippy court specifically held that a deer on the highway was not a dangerous condition upon which to predicate liability. As such, we cannot impose a duty of care on defendants. We also find it necessary to state that we know of no court that has imposed a duty upon a motorist to remove a large, injured deer from the highway. Such risk imposes a great safety issue and we find it unreasonable to hold defendants to such a standard.

Having determined that defendants did not owe a duty of care to plaintiffs, it is unnecessary to determine the remaining negligence factors since defendants could not have breached a duty to plaintiffs. As such, we find no genuine issues of material fact exist as to negligence in this case. Defendants’ motion for summary judgment will be granted.

Accordingly, we enter the following order.

And now, November 29, 2010, defendants’ motion for summary judgment is granted.

      . Reference to defendants’ motion for summary judgment will be cited as [MSJ, ¶_.].


author: BERNSTEIN, J.,

text:
    TL Ventures III Management L.P. v. Fabbio

      Aaron Krauss, for plaintiffs.

      Leslie M. Greenspan, Keith R. Dutill and Gina M. Scambal-Stowe, for defendants.
    January 10, 2011
   BERNSTEIN, J.,

Petitioners and respondents were partners in a venture capital fund. The parties defined their relationship through a series of integrated contracts (the “partnership agreements”). The contracts contained an arbitration clause and a choice-of-law provision. The arbitration clause specified that any dispute which arose out of the partnership agreements would be settled in arbitration “under the U.S. arbitration act, if applicable, and the then current commercial arbitration rules of the American Arbitration Association (the ‘Association’).” According to that arbitration clause, arbitration was to be conducted at “the Association’s regional office located in Philadelphia Pennsylvania.” The choice-of-law provision stated that Delaware law would govern.

On January 9, 2009, petitioners demanded arbitration before the American Arbitration Association in Philadelphia to recover money due under the partnership agreements.

Respondents counterclaimed for breach of the fiduciary duties of loyalty and care and joined additional parties. The arbitrators conducted eight days of hearings on December 1-4, 2009 and April 19-22, 2010. During those hearings, all parties were present, represented by counsel, and given a full opportunity to present witnesses and argument on all claims and counterclaims.

On May 26, 2010, the arbitrators rendered their award. They held that respondents Robert Fabbio and the Fabbio Family Limited Partnership owed petitioners $1,709,882, together with interest at the rate of 5.5% from December 22, 2008. Robert Fabbio and the Fabbio Limited Partnership were held jointly and severally liable. The arbitrators also found respondent Dr. Stephen Andriole liable to petitioners in the amount $253,201, together with $2,825.89 in fees and expenses and interest at the rate of 5.5% from December 22, 2008. On May 28, 2010, TL Ventures III Management L.P., et al., petitioned this court to confirm the arbitration award. On June 17, 2010, respondents moved to dismiss the petition and vacate the award.

The court must determine whether it has jurisdiction to confirm the arbitration award and whether venue is proper. 42 Pa.C.S. §7318 provides that an agreement “providing for arbitration in this commonwealth confers jurisdiction on the courts of this commonwealth to enforce the agreement under this subchapter and to enter judgment on an award made thereunder.” 42 Pa.C.S. §7319 states that venue is proper “in the county in which the [arbitration] hearing has been held.” The partnership agreements required arbitration in Pennsylvania and arbitration occurred in Philadelphia County. Without question, this court has jurisdiction to confirm the arbitration award and venue is proper.

The court must also ascertain the proper standard of review because the parties disagree. Pennsylvania’s Uniform Arbitration Act and the Federal Arbitration Act (“FAA”) provide different standards of review for arbitration awards. Petitioners contend that Pennsylvania’s Uniform Arbitration Act controls. Respondents urge this court to apply the standard set forth in the FAA. The Superior Court addressed this precise issue in Trombetta v. Raymond James Financial Services, Inc..

The arbitration agreement presented to the Trombetta court was created under the FAA. That arbitration agreement provided that “a court having jurisdiction shall conduct a ‘de novo’ review of the transcript and exhibits of the arbitration hearing.” After arbitration, the appellants filed a petition for vacatur in state court which was denied. On appeal, the Superior Court discussed the enforceability of the “de novo” review provision. To evaluate the “de novo” clause, the court had to decide whether the FAA preempted state law concerning the standard of review of an arbitration award.

Federal law preempts a state rule only if congress has manifested a clear intent to occupy an entire field, or the state rule frustrates congress’ objective. The FAA contains no express preemptive provision and does not reflect any congressional intent to occupy the entire field of arbitration. In fact, Congress specifically limited section 10 of the FAA, which sets out the federal arbitration standard of appellate review, to “the United States court in and for the district wherein the award was made,” thus leaving state courts free to apply their standards of review.

The U.S. Supreme Court has determined that the FAA policy concerns parties’ freedom to agree to arbitration in lieu of the public court system. As the Supreme Court has said, “[t]here is no federal policy favoring arbitration under a certain set of procedural rules; the federal policy is simply to ensure the enforceability, according to their terms, of private agreements to arbitrate.” The standard of appellate review, left to state determination by the FAA, does not affect any federal policy. The Superior Court, in Trombetta, unambiguously held that the state standard of appellate review of an arbitration award is not preempted by federal law. Pennsylvania’s Uniform Arbitration Act provides the standard of review in this case.

Pennsylvania’s Uniform Arbitration Act recognizes two types of arbitration, statutory and common law, each with a different standard of review. The statutory arbitration provisions only apply when the written agreement to arbitrate expressly provides for arbitration pursuant to the Uniform Arbitration Act or a similar statute. All other cases are governed by the common law arbitration provisions. The agreements herein required arbitration pursuant to the “commercial arbitration rules of the American Arbitration Association.” They expressly provided for non-statutory arbitration. Therefore the standard of review for common law arbitration governs this case. This result is also compelled by clear binding precedent. In Midomo Co. v. Presbyterian Housing Development Co., the Superior Court said: “[a]n agreement to arbitrate in accordance with the Rules of the [American Arbitration Association] is an agreement pursuant to common law arbitration.”

The standard of review for common law arbitration is extremely limited. To overturn a common law arbitration award, the challenging party must show by clear and precise evidence that he was denied a hearing, or that fraud, misconduct, corruption or some other irregularity caused an unjust, inequitable or unconscionable award. By agreeing to the economical and expeditious handling of claims by experienced arbitrators instead of the potentially erratic verdicts of randomly selected jurors presided over by elected judges, the parties knowingly give up their rights to appellate review for mistakes of law or errors of fact.

Respondents challenge the award on four grounds. Each challenge alleges a mistake of fact or error of law. Respondents claim the award was contrary to the partnership agreements. The interpretation of a contract is a question of law which cannot be reviewed. The Pennsylvania Supreme Court has specifically said “an arbitration award is conclusive even if it has the effect of varying the terms of the contract.” Respondents claim that the arbitrators misapplied Delaware law. Even if accurate, an arbitration award cannot be vacated for a mistake of law. Respondents claim the amount of the award was miscalculated. The parties submitted the issue of damages to the arbitrators and a full due process hearing was held. The award represents the arbitrators’ determination of those damages. This factual determination, even if inaccurate, cannot be reviewed by this court. Finally, respondents oppose the arbitrators’ decision on joint and several liability. Whether this claim alleges an error of fact, a mistake of law, or both, it is not reviewable.

Respondents claim only errors of law, or mistakes of fact, or improper application of law to fact. These are precisely the types of errors that may not be reviewed. The award is confirmed.

ORDER

And now, January 10, 2011, upon consideration of the petition to confirm arbitration award, and respondents’ motion to dismiss, it is hereby ordered that the petition is granted and respondents’ motion is denied. The arbitration award entered on May 26, 2010 is confirmed.

      . Although the partnership agreements refer to the “U.S. Arbitration Act,” courts have used the term “U.S. Arbitration Act” to mean the “Federal Arbitration Act,” 9 U.S.C. § 1 et seq. Compare Teamsters Local Union No. 89 v. Kroger Co., 617 F.3d 899 (6th Cir. 2010) with Burlington N. & Santa Fe Ry. Co. v. Public Serv. Co., No. 09-5133, 2010 U.S. App. LEXIS 25252 (10th Cir. Dec. 10, 2010).

      . Respondents claim this court lacks jurisdiction due to a prior pending action in Texas. Absent any claim that the prior action has reached a final judgment, which might involve the Full Faith and Credit Clause of the U.S. Constitution, this claim is devoid of any substance.

      . 42Pa.C.S. §7301 et seq.

      . 9 U.S.C. §1 et seq.

      . 907 A.2d 550 (Pa. Super. Ct. 2006).

      . Id. at 556.

      . Volt Info. Sciences, Inc. v. Board of Trustees of the Leland Stanford Junior, 489 U.S. 468, 477 (1989).

      . 9 U.S.C. § 10(a).

      . Trombetta, 907 A.2d at 567 (quoting Volt Info. Sciences, Inc., 489 U.S. at 476).

      . 42 Pa.C.S. § 7302(a).

      . Id.

      . The partnership agreements’ reference to the U.S. Arbitration Act, made conditional by the phrase “if applicable,” is insufficient to invoke the statutory arbitration provisions of Pennsylvania.

      . 739 A.2d 180 (Pa. Super. 1999).

      . Id at 183.

      . 42 Pa.C.S. § 7341 ; Bole v. Nationwide Ins. Co., 475 Pa. 187, 190, 379 A.2d 1346, 1348 (Pa. 1977).

      . See Allstate Ins. Co. v. Fioravanti, 451 Pa. 108, 115, 299 A.2d 585, 589 (Pa. 1973); Boulevard Assocs. v. Seltzer Partnership, 664 A.2d 983, 987 (Pa. Super. 1995).

      . Runewicz v. Keystone Ins. Co., 476 Pa. 456, 462, 383 A.2d 189, 192 (Pa. 1978).

      . If the arbitration had been statutory, the court review the damages to correct an obvious miscalculation. 42 Pa.C.S. § 7315(a)(1). However, under common law arbitration, no such discretion is afforded to the reviewing court.


author: MOORE, J.,

text:
    Evans, Conger, Broussard & McCrea v. DiDomenico

      November 30, 2010
    C.P. of Montgomery County,
    no. 06-04759.

      Gene A. Foehl, for plaintiff.

      Michael H. Rosenthal, for defendants.
   MOORE, J.,

I. FACTS AND PROCEDURAL HISTORY:

Evans, Conger, Broussard & McCrea (hereinafter “ECBM”) is a full service insurance broker and insurance consultant. Sheila DiDomenico, operating through her company known as TinJam, Inc., is a former employee of ECBM. (NT, 10/21/09, pp. 106-107) From January 1, 1996 until March 2, 2004, DiDomenico was employed as a producer for ECBM. (NT, 10/21/09, pp. 106-107) As a producer, DiDomenico worked to acquire new insurance accounts for ECBM and serviced existing accounts. (NT, 10/21/09, p. 104-107) In exchange for her services, Sheila DiDomenico received a share of the commissions earned by ECBM for placing insurance on behalf of her clients. (NT, 10/21/09, p. 104-107)

On March 2, 2004, DiDomenico and ECBM terminated her original employment agreement and entered into two new inter-related agreements: a termination agreement and a house broker agreement. (NT, 10/21/09, pp. 133-34) These new agreements were intended to reflect DiDomenico’s desire to retire from the full-time demands of selling insurance and serve in a new role as a house broker. (NT. 10/22/09, p. 16-17)

Under the termination agreement, Sheila DiDomenico would sell her “book of business” to ECBM but continue to earn “deferred commissions” on certain accounts for a period of five years. (NT, 10/21/09, pp. 141-42); see Exhibit D-4, termination agreement dated March 2, 2004. The termination agreement separated her book of business into two groups, referred to as either “3250 accounts” or “3251 accounts.” See Exhibit D-4, termination agreement, ¶ 4. 3250 accounts earned a commission at a rate of approximately four percent, whereas 3251 accounts earned a commission at a rate of 12 percent. See Exhibit D-4, termination agreement, ¶ 4.

ECBM also agreed to pay DiDomenico a fixed sum of money under the termination agreement in connection with the “premium billings” portion of her book of business. See Exhibit D-4, termination agreement, ¶ 4. These payments were referred to as “additional deferred commissions” and were expected to be paid over the course of five years in equal monthly installments. See Exhibit D-4, termination agreement, ¶ 4.

ECBM was permitted to discontinue the payment of deferred commissions and additional deferred commissions only if DiDomenico violated certain restrictive non-compete covenants in the termination agreement, which did not occur in this case.

In her role as a house broker, DiDomenico was not obligated to service any accounts for ECBM, but “would continue to have prescribed use of the ECBM facilities with a view toward locating prospects and helping ECBM retain and expand its client base.” See Exhibit D-4, termination agreement, ¶ 8. The house broker agreement specified that she was no longer an employee of ECBM and thus “had no obligation to work any particular hours or any particular amount of hours.” See Exhibit D-5, house broker agreement dated March 2, 2004, ¶ 10. The house broker agreement generally sets forth commission figures to be paid for any new accounts produced (NT, 10/22/09, p. 16-17); see Exhibit D-5, house broker agreement, ¶ 3.

In January 2005, DiDomenico requested ECBM to include the Schmidt’s Bakery account among the 3251 accounts under the termination agreement, thereby receiving a commission at a rate of 12 percent. (NT, 10/21/09, p. 193) ECBM declined the request and determined that the Schmidt’s Bakery account belonged among the 3250 accounts for which DiDomenico would receive a commission at a rate of approximately four percent. (NT, 10/21/09, p. 197)

In August 2005, DiDomenico and ECBM further disagreed as to the classification of a commission for the sale of insurance to the BPG Properties, Ltd. account. BPG Properties manages the Berwind Group’s real estate properties. (NT. 10/21/09, p. 122) As a “Berwind Group entity,” DiDomenico claimed ECBM was obligated to pay her a commission for the account under the house broker agreement. (NT, 10/21/09, p. 119-22) ECBM refused to pay her any commission for the BPG Properties account, claiming that the account was produced by another employee at ECBM and, in any case, was not part of the Berwind Group of accounts referenced in the house broker agreement. (NT, 10/19/09, p. 202)

On February 17, 2006, ECBM terminated DiDomenico, without prior notice or warning, for allegedly failing to fulfill her responsibilities under the house broker agreement. (NT, 10/22/09, pp. 24-25) Consequently, ECBM discontinued the payment of deferred commissions and additional deferred commissions under the termination agreement because she was allegedly terminated for cause. (NT, 10/22/09, p. 26) DiDomenico alleged that ECBM wrongly terminated the agreements in retaliation for her claims for commissions owed for the Schmidt’s Bakery and BPG Properties accounts. (NT, 10/22/09, pp. 26-27)

ECBM filed this action on March 1, 2006, seeking a declaratory judgment for a determination that it was not obligated to pay any sums under the termination or house broker agreements. ECBM also alleged a cause of action for breach of contract.

Sheila DiDomenico filed a counterclaim which alleged a cause of action for breach of contract against ECBM under the termination agreement for discontinuing the payment of deferred commissions and additional deferred commissions. DiDomenico also alleged a cause of action for breach of contract under the house broker agreement for ECBM’s failure to pay her a commission for the BPG properties account as well as several other accounts.

After a five-day bench trial, this court found in favor of DiDomenico on her counterclaim and dismissed ECBM’s claims. Subsequent hearings were held limited to the issue of damages. At the conclusion of these hearings, this court issued an order dated August 31, 2010, finding that counterclaimant DiDomenico was entitled to damages for the following:

1. All outstanding amounts owed under the termination agreement for deferred commissions and additional deferred commissions in the principal amount of $405,041.51.
2. One-half the commission earned for the BPG Properties, Ltd. account in the principal amount of $ 111,772.00.
3. Other principal amounts totaling $ 16,593.62.
4. Pre-judgment interest on all principal amounts due at the statutory rate of six percent per annum totaling $106,513.50.
5. Post-judgment interest at the statutory rate of six percent per annum on the total award of $639,920.63.

This court also denied DiDomenico’s motion for counsel fees. The parties subsequently filed timely post-trial motions which this court denied by an order dated October 1, 2010.

ECBM now appeals this court’s order of August 31, 2010. DiDomenico filed a cross-appeal challenging this court’s determination that she was entitled to only one-half of the commission for the BPG Properties account and this court’s denial of her motion for counsel fees. No appeal has been filed to this court’s October 1, 2010 order denying the parties’ post-trial motions.

II. DISCUSSION

A. ECBM’s Appeal Should be Quashed.

Initially, it should be noted that ECBM’s appeal is procedurally improper. An appeal may only be taken from a final order of the trial court. See Rae v. Pennsylvania Funeral Directors Ass ’n, 602 Pa. 65, 71, 977 A.2d 1121, 1124-25 (Pa. 2009); see also Pa. R.A.P. 341(a). “A final order is any order that: (1) disposes of all claims and of all parties; or (2) is expressly defined as a final order by statute; or (3) is entered as a final order pursuant [to statute].” Pa. R.A.P. 341(b). “A trial court’s order at the conclusion of a trial...simply cannot become final for purposes of filing an appeal until the court decides any timely post-trial motions.” Chalkey v. Roush, 569 Pa. 462, 469, 805 A.2d 491, 496 (Pa. 2002); see Pa.R.C.P. 227.1(a). Notices of appeal to interlocutory orders of a trial court are considered untimely and will foreclose appellate review of those issues prematurely raised. See Pennsylvania Orthopaedic Soc. v. Independence Blue Cross, 885 A.2d 542, 546 (Pa. Super. 2005).

In the present case, this court entered an order dated August 31, 2010 finding in favor of DiDomenico and against ECBM. Thereafter, the parties filed timely post-trial motions to this court’s determinations. Before this court made a ruling on the parties’ post-trial motions, ECBM filed its notice of appeal to this court’s order of August 31, 2010. However, ECBM subsequently failed to appeal this court’s order of October 1, 2010 denying its post-trial motions. Accordingly, ECBM’s appeal should be quashed because it did not appeal the final order of this court.

B. The Trial Court’s Determinations are Clearly Supported by the Record.

The evidence of record provides clear support for this court’s award of damages on the counterclaims pursuant to the termination and house broker agreements. The trial court, sitting as the trier of fact in a bench trial, is the sole judge of credibility and conflicts in the evidence. See Miller v. Brass Rail Tavern Inc., 702 A.2d 1072, 1076 (Pa. Super. 1997). See also Mackay v. Mackay, 984 A.2d 529, 533 (Pa. Super. 2009) (“The weight afforded to the testimony of the witnesses as well as credibility determinations are within the exclusive province of the trial court.”). Therefore, “[t]he findings of fact of the trial judge must be given the same weight and effect on appeal as the verdict of a jury.” Amerikohl Mining Co. v. Peoples Natural Gas Co., 860 A.2d 547, 549-50 (Pa. Super. 2004). Thus, in an appeal from a decision after a bench trial, the appellate courts consider the evidence in the light most favorable to the verdict winner. Employers Mut. Cas. Co. v. Boiler Erection and Repair Co., 964 A.2d 381, 387 (Pa. Super. 2008).

The decision of the trial court in a non-jury trial will be reversed only where the trial court has abused its discretion or if its findings are premised on an error of law. Amerikohl Mining, 860 A.2d at 549-50. The trial court does not abuse its discretion where there is a mere difference of opinion regarding an interpretation of the facts. See Viener v. Jacobs, 834 A.2d 546, 556 (Pa. Super. 2003). Rather, an abuse of discretion is found only in flagrant cases where there is no reasonable ground for a difference of opinion. See Miller v. Krug, 386 A.2d 124, 127 (Pa. Super. 1978). Thus, the trial court’s findings are controlling and will not be reversed unless those findings are not based upon competent evidence. Viener, 834 A.2d at 554.

ECBM does not allege any error on the part of this court but simply disagrees with this court’s conclusion based on the evidence presented. The testimony and exhibits presented in this case provide sufficient evidence to support this court’s determination. Accordingly, this court’s awards pursuant to the termination agreement and house broker agreement were proper and should be affirmed.

C. This Court Properly Awarded Shelia DiDomenico Deferred Commissions and Additional Deferred Commissions Owed Pursuant to the Termination Agreement.

ECBM argues that DiDomenico breached the house broker and termination agreements, thereby justifying her termination for cause and the simultaneous cancellation of her deferred commissions and additional deferred commissions.

However, the house broker and termination agreements do not provide a basis for ECBM to suspend the payment of deferred commissions and additional deferred commissions.

As a house broker, DiDomenico was simply compensated for any new account she was able to procure for ECBM. Pursuant to the house broker agreement, DiDomenico was not formally obligated to perform any task or tasks for ECBM. The house broker agreement specifically provides that she was no longer an employee of ECBM and thus “had no obligation to work any particular hours or any particular amount of hours.” Exhibit D-5, house broker agreement, ¶ 10. The agreement further provides that DiDomenico merely had to act with “a view toward locating prospects and helping ECBM retain and expand its client base.” Exhibit D-4, termination agreement, ¶ 8. Indeed, the evidence at trial established that DiDomenico provided transitional assistance to her successor and repeatedly offered consultation which ECBM never accepted. (NT, 10/21/09, pp. 159-61, 164-71)

Furthermore, each party could terminate the house broker agreement with thirty (30) days prior written notice to the other. Exhibit D-5, house broker agreement, ¶ 5. Accordingly, under the facts of this case, the house broker agreement could not serve as a basis to nullify the termination agreement.

The termination agreement permitted ECBM to discontinue the payment of deferred and additional deferred commissions, but only if DiDomenico violated one of the restrictive non-compete covenants related to soliciting clients, providing information or recruiting employees of ECBM for a competitor. Exhibit D-3, employment agreement, ¶ 5. At trial, no evidence was presented that established these non-compete covenants were violated.

The testimony and exhibits presented in this case clearly provide sufficient evidence to support this court’s decision to award counterclaimant DiDomenico her outstanding deferred commissions and additional deferred commissions. DiDomenico was terminated without cause and ECBM improperly withheld the payment of her outstanding commissions. Accordingly, this court properly dismissed ECBM’s complaint in its entirety and found in favor of counterclaimant DiDomenico on her claim for breach of the termination agreement.

D. This Court Properly Awarded Sheila DiDomenico One-Half of the Commission Paid for the BPG Properties Account Under the House Broker Agreement.

The house broker agreement states that DiDomenico was entitled to commissions earned for “new insurance sold to the Berwind Group.” (NT, 10/22/09, pp. 16-17) DiDomenico contends that she was entitled to the full commission of $223,544.00 for the BPG Properties account because it was a “Berwind Group entity” under the house broker agreement. ECBM claims that she was not entitled to any commission for the BPG Properties account because she did not produce the account and, regardless, BPG Properties was not part of the “Berwind Group” under the house broker agreement. At trial, both parties presented significant evidence of record in support of their respective positions.

In support of her position, DiDomenico established that she made the initial contact with the Berwind Group on behalf of ECBM. (NT, 10/21/09, p. 119) It was further established that she continued to service the account until her retirement in 2004. (NT, 10/19/09, pp. 189-90)

On the other hand, the house broker agreement fails to define what accounts are encompassed under the “Berwind Group.” The Berwind Group is a diversified, multi-national conglomerate which owns businesses in a variety of industries. (NT, 10/21/09, p. 122) BPG Properties, Ltd., was created in 2005 as a separate and independent entity from the Berwind Group to serve as Berwind’s real estate management firm. (NT, 10/19/09, pp. 194,201)

Furthermore, BPG Properties had no contact with Sheila DiDomenico; rather, they dealt exclusively with another ECBM employee, Gloria Forbes. (NT, 10/19/09, p. 201) ECBM subsequently paid a commission to Gloria Forbes for producing the BPG Properties account. (NT, 10/19/09, p. 202)

This court thoroughly examined the record, evaluated the evidence and weighed the competing testimony. Based on the totality of the circumstances, this court properly decided DiDomenico was entitled to one-half of the commission paid, totaling $111,772.00, for ECBM’s sale of insurance to the BPG Properties account. This court, sitting as the trier of fact in a non-jury trial, was free to conclude that DiDomenico was entitled to all, some or none of the commission based upon the competent evidence presented. See Miller v. Brass Rail Tavern Inc., 702 A.2d 1072, 1076 (Pa. Super. 1997). Accordingly, this court’s decision to award one-half the commission for the BPG Properties account was proper and should be affirmed.

E. This Court Properly Used the Legal Rate of Six Percent to Calculate Pre-judgment Interest.

This court properly awarded pre-judgment interest at the statutory rate of six percent on her damages for commissions owed under the termination agreement. Under the law of this commonwealth, pre-judgment interest is a matter of right in breach of contract cases. See Fernandez v. Levin, 519 Pa. 375, 378, 548 A.2d 1191, 1193 (Pa. 1988); see also Osial v. Cook, 803 A.2d 209, 215 (Pa. Super. 2002) (a plaintiff is also entitled to post-judgment interest on an award for a specific sum of money from the date of the verdict). The right to pre-judgment interest begins at the time payment is withheld after it has been the duty of the debtor to make such payment. Id. The statutory rate of interest used to calculate pre-judgment interest is fixed at six percent per annum. 41 P.S. § 202. In anticipation of non-payment of money due, parties to a contract may modify the legal rate of interest by clearly expressing the intention to apply a different rate. See, e.g., Pittsburgh Const. Co. v. Griffith, 834 A.2d 572, 593 (Pa. Super. 2003) (a contract’s explicit language — “shall bear interest at the rate of 18% per annum from the date such final was due until paid” — indicates the parties intended this increased rate to apply to pre-judgment interest calculations). Absent an express contractual agreement to the contrary, the interest rate fixed by law attaches to the wrongful detention of a principal sum. Dasel Min. Corp. v. Industrial Fuels Corp., 473 A.2d 584, 595 (Pa. Super. 1984).

The contractual provision at issue in this case, paragraph four of the termination agreement, clearly was not intended to establish the rate of pre-judgment interest. Paragraph four of the termination agreement provides the following:

All payments of deferred commissions will include interest at the applicable Federal rate described in Section 1274 of the internal revenue code of 1986 or any successor provision of similar import (“applicable federal rate”) determined for each calendar year in the December preceding such calendar year. Thus, the applicable interest rate for each month in 2004 shall be the said Federal rate established in December, 2003.
In connection with premium billings for policies forming part of the book of business which were in effect at December 31, 2003 and which are now being paid in future installments, ECBM will pay [DiDomenico] additional deferred commissions [over a period of sixty-months in monthly installments], which monthly payments already include interest at the rate of five 5% per annum.

Exhibit D-4, termination agreement, ¶ 4.

Nothing in this language covers this situation in which ECBM wrongfully refused to pay the commissions which were due and owing to DiDomenico under the termination agreement. Instead, this language explicitly provides for the inclusion of interest atthe time commissions are paid under the contract. In contracts which bear an interest rate higher or lower than the legal rate, the parties must state that this contractual rate will be the rate applied after the debt matures. Smith v. Mitchell, 616 A.2d 17, 21 (Pa. Super. 1992); Daset Mining Corp., 473 A.2d at 595. In this instance, the termination agreement fails to contain any language expressing the intent to apply the applicable federal rate of five percent to the untimely payments of commissions. Accordingly, this court properly awarded pre and post-judgment interest at the statutory rate.

F. This Court Properly Denied Sheila DiDomenico’s Motion for Counsel Fees.

Counsel fees may be available to a prevailing party if they can demonstrate the opposing party’s conduct in commencing an action was arbitrary, vexatious, or in bad faith. 42 Pa.C.S. §2503(9). The grant or denial of counsel fees lies within the sound discretion of the trial judge. See Maurice A. Nernberg & Associates v. Coyne, 920 A.2d 967, 971 (Pa. Commw. 2007). Absent an abuse of discretion, the decision of a trial judge to deny counsel fees will not be reversed by an appellate court. Shearer v. Moore, 419 A.2d 665, 669 (Pa. Super. 1980).

In the present case, DiDomenico has failed to demonstrate ECBM’s conduct in commencing this action was arbitrary, vexatious, or in bad faith. Although this court did not agree with ECBM’s legal position, there was no basis for the award of counsel fees.

Accordingly, this court clearly did not abuse its discretion in denying the motion for counsel fees.

III. CONCLUSION

Based upon the foregoing analysis, this court’s determinations were proper and should be affirmed.