author: LIEBERMAN, J.,

text:
    Commonwealth v. Carrero

      C.P. of Berks County,
    no. 0077-03.

      John T Adams, district attorney, for Commonwealth.

      Jimmy Lee Carrero, pro se.
    November 18,2010
   LIEBERMAN, J.,

The defendant appeals from the dismissal of his PCRApetition, which was meritless. After receiving notice of the defendant’s appeal, this court directed him to file a concise statement of errors complained of on appeal pursuant to Pennsylvania rule of appellate procedure 1925(b). The defendant complied with this court’s order on or about October 30,2010. In his appeal, the defendant alleges the following errors:

1. Did the PCRA Court err in dismissing the PCRA petition without scheduling an evidentiary hearing to hear testimony concerning the cognitive abilities of Juveniles?
2. Does the United States Supreme Court decision in Graham v. Florida provide an avenue of relief for juveniles who have been sentenced to life imprisonment, as a worldwide consensus has condemned the same?

(Concise statement of errors complained of on appeal, 10/30/10).

This court is bound by the principle of stare decisis and, therefore, follows precedent established by the United States Supreme Court and Pennsylvania’s appellate courts, as opposed to the vagaries of worldwide consensus.” Our July 27, 2010 order and notice of intent to dismiss, attached hereto as Exhibit “A,” thoroughly addressed the issues raised by the defendant in his appeal. We incorporate that document, adopt it as our opinion in this matter, and respectfully request that the defendant’s appeal be denied based upon the reasoning contained therein.

FACTUAL AND PROCEDURAL HISTORY

On July 19, 2002, during the commission of a home invasion robbery, the defendant executed Jaryd Runyans, who was simply lying on the floor and doing his best to comply with the defendant’s commands. The killing was completely senseless.

EXHIBIT “A”

On April 23, 2004, following a jury trial, the defendant was convicted of second-degree-murder and related offenses. The defendant was subsequently sentenced to an aggregate terms of life plus twenty-five and one-half to one hundred five years of imprisonment. The defendant filed a direct appeal to the Superior Court of Pennsylvania, which affirmed his judgment of sentence on February 3, 2005. The defendant then sought review in the Supreme Court of Pennsylvania, which denied allocator on June 10, 2005.

The defendant filed a timely pro se PCRA petition on March 28, 2006. Michael Dautrich, Esquire, the defendant’s court appointed attorney, filed a Finley petition on November 2, 2006 in which he asserted that there no meritorious issues that could be raised. This court issued an order and notice of intent to dismiss the PCRA petition on June 11,2007, and subsequently dismissed said petition on August 16, 2007. That order was never appealed.

On or about July 6,2010, the defendant filed the instant pro se PCRA petition in which he argues that the United States Supreme Court’s holding in Graham v. Florida, 130 S.Ct. 2011, entitles him to relief. This petition is manifestly untimely, and because none of the statutory exceptions to the PCRA time bar are applicable, this court lacks jurisdiction to reach the merits of the defendant’s petition.

APPLICABLE LAW

The Pennsylvania Supreme Court has “repeatedly stated that the PCRA timeliness requirements are jurisdictional in nature and, accordingly, a PCRA court cannot hear untimely PCRA petitions.” Commonwealth v. Robinson, 575 Pa. 500, 508, 837 A.2d 1157, 1161 (Pa. 2003). A PCRA petition must be filed within one year of the date that the judgment became final, unless the defendant alleges one of the statutorily enumerated exceptions. 42 Pa. C.S.A. §9545(b); Commonwealth v. Dickerson, supra. A judgment of sentence becomes final at the conclusion of direct review or at the expiration of the time for seeking such review. 42 Pa.C.S.A. §9545(b)(3).

Here, there is no question that the defendant filed his PCRA petition outside of the time requirements of the PCRA. The defendant’s petition for allocatur was denied on June 10, 2005. United States Supreme Court Rule 13 provides that “[a] petition for writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely when filed with the clerk within ninety days after entry of the order denying discretionary review.” U.S. Sup. Ct. Rule 13, 28 U.S.C.A. Under this rule, the defendant had ninety days, or until September 8, 2005, to file a petition for certiorari in the United States Supreme Court. See Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998). Since the defendant did not seek certiorari, his judgment of sentence became final on September 8, 2005. He therefore had one calendar year from that date, or until September 8, 2006, to file a PCRA petition. Commonwealth v. Fenati, 561 Pa. 106, 748 A.2d 205 (Pa. 2000). Consequently, the instant petition, which was filed on July 8, 2010, is manifestly untimely.

A PCRA court may only reach the merits of an untimely petition if the petition alleges and the petitioner proves that:

(i) the failure to raise the claim previously was the result of interference by government officials with presentation of the claim in violation of the constitution or laws of this Commonwealth or the constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively. 42 Pa. C.S.A. §9545(b) (l)(i-iii).

Furthermore, if a petitioner asserts one of these exceptions, he must file the petition within sixty days of the date that the exception could have been asserted. 42 Pa. C.S.A. §9545(b)(2).

In the instant matter, the defendant argues that the United States Supreme Court’s recent holding in Graham v. Florida entitles him to relief. In Graham, the Supreme Court held that the cruel and unusual punishment clause of the eighth amendment prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide. As Justice Kennedy eloquently wrote:

There is a line between homicide and other serious violent offenses against the individual. Serious nonhomicide crimes may be devastating in their harm ... but in terms of moral depravity and of the injury to the person and to the public...they cannot be compared to murder in their severity and irrevocability. This is because life is over for the victim of the murderer, but for the victim of even a very serious nonhomicide crime, life is not over and normally is not beyond repair. Although an offense like robbery or rape is a serious crime deserving serious punishment, those crimes differ from homicide crimes in a moral sense. Graham v. Florida, 130 S.Ct. 2011, 2027 (U.S. 2010).

Since the defendant in the instant case was convicted of second-degree-murder, the Supreme Court holding in Graham is obviously inapplicable. Therefore, because none of the statutory exceptions to the PCRA time bar apply, this court lacks jurisdiction to reach the merits of the defendant’s petition.

The defendant shall have twenty (20) days from the date of this notice to respond to the proposed dismissal. If this court receives no response within that time period, an order dismissing the defendant’s motion for post conviction collateral relief will be filed with the clerk of courts.

ORDER AND NOTICE OF INTENT TO DISMISS

And now, July 27, 2010, notice is hereby given by the undersigned, the Honorable Stephen B. Lieberman, of his intention to dismiss without a hearing the defendant’s petition for post conviction collateral relief, pursuant to Pennsylvania Rule of Criminal Procedure 907. After a careful review of the petition and the record, this court concludes that it is without jurisdiction to hear the substantive claims raised by the defendant as the petition was untimely filed and defendant has failed to prove that one of the statutory exceptions set forth in 42 Pa.C.S.A. § 9545(b)(l)(i)-(iii) applies. Commonwealth v. Dickerson, 900 A.2d 407, 410 (Pa. Super. 2006).


source: Caselaw Access Project

author: BOCCABELLA, J.,

license: Public Domain

text:
    Commonwealth v. Leininger

      C.P. of Berks County,
    no. 1630/10.

      Colin R. Boyer, assistant district attorney, for Commonwealth at trial.

      Alisa R. Hobart, assistant district attorney, for Commonwealth on appeal.

      John D. Bucolo, for defendant.
    November 17, 2010
   BOCCABELLA, J.,

On July 30, 2010, this court presided over an omnibus pretrial hearing concerning the defendant in the instant case. On September 13, 2010 this court granted the defendant’s motion for suppression of evidence.

On October 13, 2010, the Commonwealth, by and through counsel Alisa R. Hobart, Esquire, filed a notice of appeal to the Superior Court of Pennsylvania. On October 19, 2010, this court ordered the Commonwealth as appellant to file a concise statement of matters complained of on appeal pursuant to Pennsylvania rule of appellate procedure 1925. On October 25,2010, the Commonwealth filed its concise statement. The following issue has been set forth for appellate review:

1. Whether the trial court erred in suppressing evidence obtained as a result of a lawful traffic stop supported by reasonable suspicion that the defendant violated a provision of the motor vehicle code based upon information received from another police officer who observed the violation.

FACTUAL SUMMARY

Both parties have stipulated to the facts as stated in the affidavit for probable cause and paragraphs seven (7) to nine (9) in the defendant’s omnibus pretrial motion:

On January 24, 2009 at approximately 1:59 a.m., Sergeant Leon Grim and Officer Peter J. Purcell of the Wyomissing Borough Police Department were on a traffic stop in the 1200 block of Penn Avenue when they observed a black car with a vanity license plate that said AJMOBLE traveling westbound without its lights on. Sergeant Grim notified the Spring Township Police Department of the vehicle and requested that they stop the vehicle if it is seen. Officer Purcell stated that the vehicle was not pursued since he and Sergeant Grim were conducting another traffic stop and that the vehicle was heading towards Spring Township.

A few moments later, Sergeant Grim and Officer Purcell were notified by Officer Forina of the Spring Township Police Department that he had stopped the reported vehicle on Penn Avenue, just before Woodside Avenue and that the vehicle had its lights on. Officer Purcell left the traffic stop at approximately 2:07 a.m., and arrived on location with Officer Forina.

DISCUSSION

The Commonwealth’s appeal presents the sole issue of whether Officer Forina had reasonable suspicion that a violation of the motor vehicle code was occurring. “ ‘The appellate standard of review of suppression rulings is well-settled. This court is bound by those of the suppression court’s factual findings which find support in the record, but we are not bound by the court’s conclusions of law.’ Commonwealth v. Millner, 585 Pa. 237, 246, 888 A.2d 680, 685 (2005). See also Commonwealth v. Booze, 953 A.2d 1263, 1268-69 (Pa. Super. 2008) (“Where the record supports findings of the suppression court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.”).” Commonwealth v. Bostick, 958 A.2d 543, 550 (Pa. Super. 2008). This court, as fact-finder, is “entitled to believe all, part, or none of the evidence presented.” Commonwealth v. Santiago, 980 A.2d 659, 664 (Pa. Super. 2009); See also Commonwealth v. Fahy, 512 Pa. 298, 516 A.2d 689 (Pa. 1986); See also Commonwealth v. Costa-Hernandez, 802 A.2d 671, 675 (Pa. Super. 2002). Thus, this court is free to weigh the credibility of the witnesses. See Commonwealth v. Quiles, 619 A.2d 291, 292 (Pa. Super. 1993) citing Commonwealth v. Smith, 577 A.2d 1387, 1388 (Pa. Super. 1990).

Section 6308(b) of the motor vehicle code provides:

Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle upon request or signal, for the purpose of checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or engine number or the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.

75 Pa.C.S.A. § 6308(b) (emphasis added).

“ [Wjhen an officer has reasonable suspicion a violation of the vehicle code is occurring or has occurred, he may interrupt the privileged operation of a vehicle on the public highways and stop the vehicle for the investigative purposes stated therein.” Commonwealth v. Chase, 599 Pa. 80, 88, 960 A.2d 108, 112 (Pa. 2008). “To establish grounds for ‘reasonable suspicion’...the officer must articulate specific observations which, in conjunction with reasonable inferences derived from these observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and the person he stopped was involved in that activity.” Commonwealth v. Little, 903 A.2d 1269, 1272 (Pa. Super. 2006) citing Commonwealth v. Bennet, 827 A.2d 469, 477 (Pa. Super. 2003) (citing Commonwealth v. Cook, 558, Pa. 50, 61, 735 A.2d 673, 676 (Pa. 1999)).

A determination of whether reasonable suspicion exists is based on the totality of the circumstances. In the Interest of D.M., 566 Pa. 495, 449, 781 A.2d 1161, 1163 (Pa. 2001) citing United States v. Cortez, 449 U.S. 411, 417 (1981). In making this determination, we must give “due weight...to the specific reasonable inferences [the police officer] is entitled to draw from the facts in light of his experience.” Commonwealth v. Cook, 558 Pa. 50, 57, 735 A.2d 673, 676 (Pa. 1999) quoting Terry v. Ohio, 392 U.S. 1, 27 (Pa. 1968). Also, the totality of the circumstances test does not limit our inquiry to an examination of only those facts that clearly indicate criminal conduct. Rather, “[e] ven a combination of innocent facts, when taken together, may warrant further investigation by the police officer.” Commonwealth v. Cook, 735 A.2d 673, 676 (Pa.1999) quoting Terry v. Ohio, 392 U.S. 1, 22 (1968). “Reasonable suspicion sufficient to stop a motorist must be viewed from the standpoint of an objectively reasonable police officer.” Commonwealth v. Chase, 599 Pa. 80, 101, 960 A.2d 108, 120 (Pa. 2008) citing Ornelas v. United States, 517 U.S. 690, 696 (Pa. 1996).

To have reasonable suspicion, police officers need not personally observe the illegal or suspicious conduct. Commonwealth v. Lohr, 715 A.2d 459 (Pa. Super. 1998) citing Commonwealth v. Wright, 672 A.2d 826, 830 (Pa. Super. 1996). An identified caller, like a known police officer, is considered more reliable than an anonymous caller. Commonwealth v. Spencer, 888 A.2d 827 (Pa. Super. 2005). For an officer to make a valid stop, “someone in the police department must possess sufficient information to give rise to reasonable suspicion.” Commonwealth v. Barber, 889 A.2d 587, 594 (Pa. Super. 2005) citing Commonwealth v. Wiley, 858 A.2d 1191, 1197 n.4 (Pa. Super. 2004). The officer, usually the dispatcher, “need not convey all of this background information to the officer who actually effectuates the stop.” Commonwealth v. Barber, 889 A.2d 587, 594 (Pa. Super. 2005) citing Commonwealth v. Wiley, 858 A.2d 1191, 1197 n.4 (Pa. Super. 2004).

When dealing with a known third party, the information provided must be specific enough to support a stop. Commonwealth v. Barber, 889 A.2d 587, 593-94 (Pa. Super. 2005) citing Commonwealth v. Korenkiewicz, 743 A.2d 958, 964 (Pa. Super. 1999) (en banc). “Both quantity and quality of information are to be considered when assessing whether a stop is justified.” Commonwealth v. Anthony, 977 A.2d 1182, 1187 (Pa. Super. 2009) quoting Commonwealth v. Albert, 767 A.2d 549, 552 (Pa. Super. 2001).

In this case, Sergeant Grim and Officer Purcell observed the defendant’s black car with a vanity license plate that said AJMOBLE pass them without its lights on while they were conducting a traffic stop. See affidavit of probable cause, filed April 29, 2010. p. 1; See also defendant’s omnibus pretrial motion, filed June 22,2010, p. 2. Sergeant Grim notified the Spring Township Police Department of the vehicle’s direction of travel and requested that they stop the vehicle if it was seen. Id. Within minutes, Officer Forina observed a vehicle that matched the description in the dispatch but the vehicle’s lights were on. Id. He initiated a vehicle stop. Id.

This court notes that there was no evidence describing the tip, a description of how long the lights were off, what the lighting in the area was where the car was seen driving without its lights on, or if there were any other circumstances indicating criminal activity. B ased on this lack of testimony, this court, as fact finder, finds that there was no reasonable suspicion that criminal activity was afoot. This court finds that seeing a vehicle’s lights off momentarily at night, without more testimony regarding the circumstances does not constitute reasonable suspicion. A so-called educated guess or hunch does not constitute reasonable suspicion and should never be treated as such; nor do the facts here justify further investigation. See Commonwealth v. Bailey, 947 A.2d 808, 812 (Pa. Super. 2008); See Commonwealth v. Zook, 851 A.2d 178, 181 (Pa. Super. 2004) (emphasis supplied). If a stop such as this is found valid, there will no longer be any threshold for police to effectuate a stop; they will be able to stop any vehicle at any time for any perceived violation. The tip from Sergeant Grim should be viewed akin to a heads-up, expressing that if the vehicle continues to travel with its lights off, that a further investigation would be prudent. As such, this court finds that under the totality of the circumstances, Officer Forina did not have any reasonable suspicion of criminal activity, and that neither did Sergeant Grim or Officer Purcell have such reasonable suspicion. Consequently, the stop was not based on reasonable suspicion and was violative of the defendant’s Constitutional rights.

For the foregoing reasons this court respectfully requests that the Commonwealth’s appeal be denied.


author: SIBUM, J.,

text:
    Ducas v. Pinecrest Dev. Corp.

      C.P. of Monroe County,
    no. 7014 CIVIL 2010.

      John P. Rodgers, for plaintiffs.

      Marshall E. Anders, for defendant.
    October 27, 2010
   SIBUM, J.,

Plaintiffs Michael Ducas (“Ducas”), Wild Pines Enterprises, LLC. (“WPE”), and Wild Pines Management, Inc. (“WPM”) (collectively “plaintiffs”) commenced this action against defendant Pinecrest Development Corporation (“PDC”) for breach of contract, or in the alternative, unjust enrichment. Plaintiffs filed a four count amended complaint on September 4, 2009 arguing two counts of breach of contract and two counts of unjust enrichment. PDC then filed preliminary objections to plaintiffs’ amended complaint raising one motion to transfer for improper venue and five motions to dismiss for legal insufficiency of a pleading (demurrer). This case was argued before the Court of common pleas of Lackawanna County and subsequently transferred to Monroe County, now rendering PDC’s preliminary objection to venue moot. Both parties have submitted briefs and oral arguments were heard before this court on September 7, 2010 as to PDC’s remaining preliminary objections. We are now prepared to decide this matter.

DISCUSSION

Preliminary objections may be filed by any party to any pleading on several grounds, including legal insufficiency of a pleading (demurrer). Pa.R.C.P. § 1028(a)(4). In ruling on preliminary obj ections, we recognize that the court must accept as true “all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences deducible therefrom....” Wurth by Wurth v. City of Philadelphia, 584 A.2d 403, 407(Pa. Cmwlth. 1990). The court need not accept as true, however, “conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion.” Myers v. Ridge, 712 A.2d 791, 794 (Pa. Cmwlth. 1998). When ruling on a preliminary objection that would dismiss the action, we are mindful to sustain the objection only in the cases which are clear and free from doubt. King v. Detroit Tool Co., 682 A.2d 313, 314 (Pa. Super. 1996).

Reviewing the facts of record in the light most favorable to plaintiffs, the non-moving party, the record reveals the following. Defendant PDC is a Pennsylvania corporation and the developer of the Pinecrest Lake Development located in Pocono Pines, Monroe County, Pennsylvania, amended complaint, ¶5. Edward P. Carroll (“Carroll”) is the president and sole voting stock holder of PDC. Id. at 6, 7. In the summer of 2003, Carroll approached plaintiff Ducas and began discussions regarding the sale of PDC to Ducas. Id. at 8. On February 5, 2004, Carroll and Ducas entered into a contract of sale whereby Ducas was to purchase all of the outstanding shares of voting and non-voting stock of PDC in exchange for payment of $1,500,000.00 and the assumption of certain liabilities. Id. at 9.

On October 1, 2004, Carroll and Ducas entered into a revised contract of sale whereby Ducas was to purchase all of the outstanding shares of voting and non-voting stock of PDC in exchange for payment of $3,958,000.00. Id. at 10. Pursuant to the agreements of sale, Ducas paid to PDC deposits totaling $404,180.00 as contingent down payments for the purchase of PDC. Id. at 11. At the special request and insistence of Carroll in his official capacity as president of PDC, Ducas wrote five checks payable to Carroll and one check payable to Titan Custom Homes, Inc. Id. at 12.

The five checks written to Carroll were inscribed in the “for” line of the check as “1st Installment — purchase PDC” or as “6/30 Dep” and were intended as contingent down payments for the purchase of PDC. AC, ^l(a)-(e); Exhibit C. The check written to Titan Custom Homes was inscribed “EPC Deposit.” Id. Paragraph 11(e) of plaintiffs’ amended complaint provides that the check was for the purchase of property from Titan Homes by Carroll and was to be considered as the fifth contingent down payment for the purchase of PDC. AC, ¶11(e). One check dated October 1, 2004 was specifically endorsed “pay to the order of Pinecrest Dev. Corp.” Id. at 11(f), Exhibit C. Plaintiffs aver that all checks made payable to Carroll were deposited into bank accounts which were in the name of the defendant, PDC. Id. at 14.

Between May 1, 2003 and September 6, 2005, at the request of Carroll in his official capacity as president of PDC, Ducas loaned to PDC for its benefit a total of $411,394.63. Id. at 15, 18, Exhibit D. Carroll stated these loans were to be used for the payment of PDC’s operational expenses and to pay entities which directly benefited PDC. Id. at 15; Exhibit D.

On December 22, 2005, plaintiffs Ducas, WPE and WPM entered into an agreement of sale with PDC whereby PDC was to purchase plaintiffs’ golf course operations in exchange for $12,000,000.00. Id. at 19. Pursuant to this agreement of sale, WPM and WPE were to enter into a long term lease with PDC whereby all plaintiffs were to turn over management of the golf course to PDC and sign a document that forgives all loans made to PDC by plaintiffs, in exchange for the payment of a minimum of $12,000,000.00. Id. at 20.

After signing the agreement of sale on December 22, 2005, PDC took over management of the golf course pursuant to an oral lease agreement. Id. at 44. Pursuant to the oral agreement, PDC agreed to pay the property taxes for the golf course. Id. at 45.

On March 31, 2008, plaintiffs and PDC agreed to terminate the December 22, 2005 agreement pursuant to a written termination agreement (“termination agreement”). Id. at 21, Exhibit F. Pursuant to paragraph 4 of the termination agreement, PDC reaffirmed the obligation to repay the plaintiffs for monies owed. Id. at 22. However, despite agreeing to repay the plaintiffs, PDC has failed to make payment. Id. at 29. In addition, after the signing of the termination agreement, Ducas learned from the Monroe County Tax Claim Bureau that PDC failed to pay the real estate taxes on the golf course in the amount of $129,463.00. As aresult, onApril 1,2008, Ducas made the real estate tax payment to the Bureau. Id. at 46.

1. Demurrers to Count 1 - Breach of Contract

PDC first argues in its demurrer to count I (breach of contract) of the amended complaint that, because PDC was not a party to the contract of sale and revised contract of sale for the sale of PDC’s stock, the plaintiffs cannot set forth a cause of action against PDC for monies owed. We disagree.

A demurrer tests the legal sufficiency of the pleading. In determining whether the factual averments of a complaint are sufficient to state a cause of action, all doubts must be resolved in favor of the sufficiency of the complaint. Slaybaugh v. Newman, 479 A.2d 517, 519 (Pa. Super. 1984). A demurrer will be sustained only where the complaint demonstrates with certainty that under the facts averred within, the law will not permit a recovery. Id.; see also Cianfrani v. Commonwealth, State Employees’ Retirement Bd., 505 Pa. 294, 297, 479 A.2d 468, 469 (Pa. 1984). If any theory of law will support the claim raised by the complaint, dismissal is improper. Slaybaugh, supra; Cianfrani, supra.

Here, the critical fact is that PDC was a party to the termination agreement. In the termination agreement, PDC agreed to repay Ducas any and all monies owed by PDC to Ducas, the amount which was yet to be determined.

The termination agreement acknowledges that plaintiffs made loans to PDC. The termination agreement specifically provides:

Notwithstanding anything in this agreement to the contrary set forth herein, this termination shall not relieve buyer’s obligation to repay Michael J. Ducas monies owed to Michael J. Ducas by PDC.

It is PDC’s failure to repay this debt as required by the termination agreement that constitutes a cause of action. Plaintiff’s amended complaint states a claim for which relief can be granted due to the fact that the termination agreement specifically provides for PDC to reimburse Ducas for monies owed to Ducas by PDC.

In addition, the December 22,2005 agreement of sale for the golf course contemplates plaintiffs forgiving all loans made to PDC. Additionally, plaintiff’s amended complaint alleges that all payments, which total $404,180.00, were made on behalf of PDC at the request of Carroll for the benefit of PDC. Pursuant to the allegations in plaintiff’s amended complaint, no payments were made to Carroll in his individual capacity. The monies were either paid to Carroll on behalf of PDC as payment for the promissory notes PDC owed to Carroll or were issued in order to benefit PDC. The termination agreement, moreover, specifically provides that PDC shall be responsible for repayment of any monies it owes to Ducas.

As such, we find the parties intended for PDC to repay the deposits to plaintiff Ducas. Plaintiffs’ amended complaint states a valid claim for which relief can be granted. PDC’s preliminary objection will be denied.

PDC also demurs to count I (breach of contract) that the amended complaint fails to set forth the specific terms of the loan agreement and therefore, fails to allege any cause of action for a breach of a loan agreement or loan contract. Again, we disagree.

In order for a valid, enforceable contract to exist, there must be an offer, acceptance, consideration or mutual meeting of the minds. Jenkins v. County of Schuylkill, 658 A.2d 380, 383 (Pa. Super. 1995). In Pennsylvania, parties may bind themselves orally even when contemplating a later written contract. Kistler, Inc. v. O’Brien, 464 Pa. 475, 493, 347 A.2d 311, 315 (Pa. 1975).

Here, we find that plaintiff’s amended complaint sets forth an offer, acceptance, and valuable consideration. We also find that plaintiff’s amended complaint demonstrates a mutual meeting of the minds. Twenty-three checks totaling $411,394.63 were issued by plaintiffs on behalf and for the benefit of PDC. Such checks are evidence of the mutual understanding between the parties involved and consideration for the loan. The references to the loan in the December 22, 2005 golf course agreement of sale and to the repayment of same in the termination agreement are further evidence of the loan’s existence. A demurrer will be sustained only where the complaint demonstrates with certainty that under the facts averred within, the law will not permit a recovery. Slaybaugh, supra.; see also Cianfrani, supra. PDC’s preliminary objection will be denied.

2. Demurrers to Count II— Unjust Enrichment

In the alternative to breach of contract, plaintiffs are suing PDC for unjust enrichment. PDC argues in its demurrers to count II (unjust enrichment) that contract payments were made payable directly to Carroll or other third parties and not PDC and therefore, PDC could not be unjustly enriched by the checks. As such, defendant asserts that the amended complaint fails to set forth a cause of action for unjust enrichment against PDC. We disagree.

Where there is no expressed contract between the parties, the plaintiff can still recover under, quasi-contract. “Unjust enrichment is an equitable doctrine.” Styer v. Jugo, 619 A.2d 347, 350 (Pa. Super. 1993). “Where unjust enrichment is found, the law implies a contract, referred to as a quasi contract or a contract implied at law, which requires that the defendant pay to plaintiff the value of the benefit conferred.” Schenck v. K.E. David, Ltd., 666 A.2d 327, 328-29 (Pa. Super. 1995). The three elements necessary to prove unjust enrichment are: 1) benefits conferred on the defendant by the plaintiff; 2) appreciation of such benefits by the defendant; and 3) acceptance and retention of such benefits under such circumstances that it would be inequitable for the defendant to retain the benefit without the payment of value. Mitchell v. Moore, 729 A.2d 1200, 1203 (Pa. Super. 1999). Unjust enrichment will only lie where the transaction between the parties is not otherwise governed by an express contract. Villoresi v. Femminella, 856 A.2d 78, 84 (Pa. Super. 2004).

For the reasons stated above, we find that plaintiffs’ amended complaint sets forth facts evidencing that twenty-three checks totaling $411,394.63 were issued by plaintiffs on behalf and for the benefit of PDC. As further stated above, we find that plaintiffs’ amended complaint sets forth facts evidencing how PDC was benefitted by the issuance of the checks and how PDC reaffirmed its obligation to repay monies owed by it to Ducas. This repayment has not occurred and is the reason for the instant action. As such we find that plaintiff has alleged a valid cause of action for unjust enrichment. PDC’s preliminary objection will be denied.

3. Legal Insufficiency of a Pleading (Demurrer) — Breach of Contract: Count III

PDC finally argues in its demurrer to count III (breach of contract) that they did not have a contractual obligation to pay the real estate taxes and although the agreement of sale contemplates the parties entering into a written lease, they did not. As such, PDC argues that the plaintiffs’ amended complaint fails to set forth a cause of action for breach of the lease. We disagree.

The parties formally entered into an agreement of sale on December 22,2005 by executing the document with the intent to memorialize an oral agreement between plaintiffs and PDC. The document, attached to plaintiffs’ amended complaint states that:

At the execution of this agreement the seller will sign a long term lease with the buyer which turns over all golf course operations of WPM and WPE and in turn, seller will sign a document that forgives all loans made to buyer (to be determined) in exchange for a minimum future obligation in the amount of $12.0 million (including debt payoff) plus additional contingent funds which will be paid as indicated below.

Although the parties did not enter into a written lease, the amended complaint provides that the parties entered into an oral lease and the plaintiff took control of the golf course operations.

Accepting as true all well-pleaded allegations and material facts averred in the amended complaint, plaintiffs have sufficiently averred that PDC took over management of the golf course pursuant to the oral lease agreement which required PDC to pay all property taxes. The amended complaint further avers that PDC agreed to pay all the property taxes yet failed to do so.

The plaintiffs also specifically allege that after signing the termination agreement, plaintiff Ducas learned from the Monroe County Tax Claim Bureau that PDC failed to pay real estate taxes in the amount of $129,463.00. Accepting these averments as true, as we must, plaintiffs’ amended complaint sets forth a claim for breach of contract for which relief can be granted as a result of PDC’s failure to pay the property taxes. PDC’s preliminary objection will be denied.

Accordingly, we enter the following order.

ORDER

And now, October 27, 2010, upon consideration of defendant’s preliminary objections to plaintiffs’ amended complaint, it is ordered as follows:

1. Defendant’s preliminary objection to improper venue is dismissed as moot.
2. Defendant’s preliminary obj ections in the nature of demurrers as to count I, breach of contract, are denied.
3. Defendant’s preliminary objections in the nature of demurrers as to count II, unjust enrichment, are denied.
4. Defendant’s preliminary objection as to count III, breach of contract, is denied.
5. Defendant is hereby given 20 days in which to file an answer to plaintiffs’ amended complaint.

      . Reference to plaintiffs’ amended complaint will be cited as [AC, ¶--.]


author: FOX, J.,

text:
    Ali v. Southeast Transportation Transit Authority

      George R. Szymanski, Jr., for plaintiffs.

      Sean Kirby, Michael Sklaroff, Burt M. Rublin, Charles L. Rombeau, Richard C. Geer, and Cecelia Isaacs-Blundin, for defendant.
    December 14, 2010
   Facts and Procedural History

FOX, J.,

Plaintiffs appeal this court’s June 7,2010 order which granted partial summary judgment in favor of defendant. This case was initiated by complaint filed January 31, 2008. The complaint alleged fraud and various other claims related to the damages allegedly incurred as a result of the Market Street El Reconstruction Project. The complaint names SEPTA, the City of Philadelphia, Cornell Company, Inc., Baker and Company, Market Street Construction, PKF Mark III, Inc., and the Commonwealth of Pennsylvania Department of Transportation as defendants (“defendants”). On August 5, 2008, this court sustained certain preliminary objections which left plaintiffs with two claims for relief: 1) count I for fraud against SEPTA and Baker and Company and 2) count V for “outrageous conduct” against all defendants except the Commonwealth of Pennsylvania, Department of Transportation.

On December 18, 2009, this case was tried before an arbitration panel, which found unanimously in favor of defendants. Plaintiffs appealed. On May 3, 2010, all defendants except for SEPTA (“remaining defendants”) filed a motion for summary judgment on the remaining counts. Plaintiffs did not file a response. On June 7,2010, after a review of the motion and exhibits, and finding no genuine issue of material fact, this court granted summary judgment. The day this court entered its decision, plaintiffs filed a response to the motion for summary judgment. Thereafter, plaintiffs filed for reconsideration. This court considered the untimely response filed by plaintiffs. The reconsideration was denied on July 1, 2010. This appeal followed.

Discussion

Summary judgment is warranted because. plaintiffs have failed to demonstrate the existence of any genuine issue of material fact. The trial court will be overturned on the entry of summary judgment only if there has been an error of law or a clear abuse of discretion. Hetrick v. Apollo Gas Co., 608 A.2d 1074 (Pa. Super. 1992). The standard of review for a motion for summary judgment is set forth in Rule 1035.2 of the Pennsylvania Rules of Civil Procedure:

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

Here, under the facts, plaintiffs cannot recover for fraud or outrageous conduct.

First, plaintiffs cannot recover on their claims against SEPTA because of sovereign immunity. According to 74 Pa. Const. Stat. Ann § 1711, SEPTA “shall exercise the public powers of the Commonwealth.” Thus, SEPTA “shall continue to enjoy sovereign and official immunity.” Id. § 1711(c)(3). 42 Pa. Const. Stat. Ann. § 8522 sets forth the nine exceptions to sovereign immunity. The nine exceptions are as follows: (1) Vehicle Liability, (2) Medical-Professional Liability, (3) Care, Custody or Control of Personal Property, (4) Commonwealth Real Estate, (5) Potholes and other Dangerous Conditions, (6) Care, Custody or Control of Animals, (7) Liquor Store Sales, (8) National Guard Activities, and (9) Toxoids and Vaccines. Id. Fraud and outrageous conduct are not included in the exceptions. Therefore summary judgment is proper.

Second, with respect to Baker, plaintiffs are unable to recover for fraud. Under Pennsylvania law, a plaintiff must prove the following to prevail on a fraud claim:

1) A representation;
2) which is material to the transaction at hand;
3) made falsely, with knowledge of its falsity or
recklessness as to whether it is true or false;
4) with the intent of misleading another into relying on it;
5) justifiable reliance on the misrepresentation; and
6) the resulting injury was proximately caused by the reliance.”

Gibbs v. Ernst, 538 Pa. 193, 207, 647 A.2d 882, 889 (1994) (footnote and citations omitted).

There is no dispute that plaintiffs’ fraud claim is premised entirely on alleged misrepresentations by SEPTA and Baker Company about the anticipated completion date of the reconstruction project. The failure to complete the project by the initial anticipated completion date does not constitute fraud. “The breach of a promise to do something in the future is not fraud.” Edelstein v. Carole House Apartments, Inc., 286 A.2d 658, 661 (Pa. Super. 1971) (citation omitted). Moreover, “[a]n unperformed promise does not give rise to a presumption that the promisor intended not to perform when the promise was made.” Fidurski v. Hammill, 328 Pa. 1, 3, 195 A. 3,4 (1937). Here, even upon consideration of the untimely response, plaintiffs have failed to point to any evidence to establish that the date projections of the anticipated completion of the reconstruction project were knowingly false. It is not in dispute that SEPTA and Baker kept the public, including plaintiffs, fully and accurately informed about construction delays and the resulting changes in the completion dates. Therefore, plaintiffs’ fraud claim must fail.

Additionally, plaintiffs cannot prove “justifiable reliance” on the alleged misrepresentations by Baker and SEPTA in 2000 about the anticipated completion date. Although plaintiffs contend that misrepresentations about the projected completion date were made in 2000, plaintiffs did not take any action “in reliance” on these alleged misrepresentations until sometime in 2004. In fact, Mr. Ali testified at his deposition that he would have gone ahead with the construction regardless of the anticipated completion date.

Plaintiffs’ claim for outrageous conduct must also fail. Plaintiffs contend that punitive damages are appropriate for torts sounding in negligence when the conduct at issue is beyond mere negligence and the behavior is willful, malicious or so careless as to indicate wanton disregard for the rights of the parties injured. In support of this argument, plaintiffs point to the Pennsylvania Standard Jury Instructions. This court agrees that punitive damages are proper if the factual circumstances of a particular case reveal conduct that has passed into the level of outrageous conduct, even if mere ordinary negligence is all that was required to sustain a separate claim for compensatory damages (citing Restatement (Second) of Torts § 908 (1979); Moran v. G. & W.H. Corson, Inc., 586 A.2d 416 (Pa. Super. 1991)). However, the factual circumstances in this case clearly do not rise to this level. Plaintiffs have not adduced any evidence that any of the remaining defendants’ conduct was outrageous or reckless.

Thus, for the foregoing reasons, this court’s order of June 7, 2010 should be affirmed.

      . The appeal was filed after Final Judgment was entered against PennDot.


author: HODGE, «/.,

text:
    Mazzarini v. Mazzarini

      C.P. of Lawrence County,
    no. 10253 of 2002, C.A.

      Michael J. Dougherty, for Huntington Bank.

      Daniel Herman, for defendant and Keystone Research Inc.
    December 30, 2010
   HODGE, «/.,

This opinion is issued pursuant to Pa.R.A.P. 1925(a) in support of the order of court dated January 4,2010. The plaintiff asserts that this court abused its discretion in finding that the defense of laches applied in the above captioned case; the trial court disagrees and supports its decision for the reasons set forth below.

The plaintiff, Donna J. Mazzarini, and the defendant, Stephen A. Mazzarini, are currently involved in a divorce proceeding, initiated on May 1, 2002. A petition for emergency relief was later filed on behalf of the defendant, and a subsequent order was issued on May 12, 2003, by the Honorable Judge Thomas M. Piccione, requiring the affairs and business of Dana Robert Trucking Incorporated (hereinafter “truck company”) to be placed under the supervision and control of a trustee, namely Richard H. Miller (hereinafter “trustee”) acting as president and representative of Keystone Research, Inc.

Thereafter, trustee provided notice to Sky Bank of the court order appointing him as trustee and granting him the sole ability to open, close and manage any and all bank accounts on behalf of the truck company. Sky Bank was later succeeded by Huntington National Bank. The date on which trustee provided Sky Bank with notice is disputed. It was during the disputed dates when plaintiff withdrew monies from the accounts owned by the truck company totaling almost $70,000. A master’s hearing was held on March 24,2004 where all the economic issues surrounding the parties’ divorce were addressed. In an order of court dated September 2, 2004, this court affirmed the master’s award, but directed that plaintiff assume responsibility for all of the marital debt, including the $69,591.80 she converted from the business account.

Trustee now petitions this court to find Huntington B ank in civil contempt of court for disobeying the May 12,2003 order by allowing plaintiff to withdrawal said monies. Briefs were filed on trustee’s petition for civil contempt on behalf of Huntington bank as well as Keystone Research Inc. and oral argument was held on November 17, 2009. Plaintiff was not present for argument on November 17, 2009, nor was she represented by her counsel of record. After taking into consideration trustee’s petition, supplemental briefs and oral argument, this court entered an order on January 4, 2010 denying trustee’s request after determining that the defense of laches barred any claim by trustee against Huntington National Bank and that Huntington National Bank lacked sufficient notice of the contempt proceeding. Additionally, this court believed that the petition for civil contempt filed against Huntington National Bank is more appropriately filed under a different case heading involving the defendant, Steve Mazzarini, and Huntington National Bank at case number 10604 of 2006, in the court of common pleas, Lawrence County, Pennsylvania.

Trustee subsequently appealed the January 4,2010 and claimed that this court abused its discretion in finding that the defense of laches applies. The test for applying the doctrine of laches has been stated as follows:

The party asserting laches must first show a delay arising from the other party’s failure to exercise due diligence, and second, prejudice from the delay. It is not enough for a party to only show delay arising from failure to exercise due diligence, as the doctrine of laches will not be imputed where no injury has resulted to the other party by reason of the delay. Pattern v. Vose, 590 A.2d 1307, 1309 (Pa. Super. 1991).

“Prejudice is an essential element of laches; in the absence of prejudice, the doctrine of laches will not be applied.” Jackman v. Pelusi, 550 A.2d 199, 203 (Pa. Super. 1988). The types of prejudice that may be shown, include but are not limited to: unavailability of potential witnesses; lost or destroyed records; or a change in a party’s position in anticipation of claims having been waived. Leedom v. Thomas, 473 Pa. 193, 201, 373 A.2d 1329, 1333 (Pa.1977). Thus, the burden of proof with respect to the doctrine of laches is upon the party asserting the defense, and as previously stated, in order to meet this burden, the party alleging the delay must demonstrate prejudice.” Lipschutz v. Lipschutz, 571 A.2d 1046, 1051 (Pa. Super. 1990) (citing Kay v. Kay, 460 Pa. 680, 334 A.2d 585 (Pa. 1975). “[Djelay alone, no matter how long, does not itself establish laches.” Jackman v. Pelusi, 550 A.2d at 203.

In the case sub judice, the court finds that Huntington National Bank has been severely prejudiced by trustee’s failure to exercise due diligence in filing this contempt petition. In reaching this conclusion the court relies on the fact that the plaintiff has consistently avoided the authority of this court, and renders Huntington National Bank now subject to liability for her wrongful conduct. This court also believes that the issue of liability regarding the misappropriated funds has already been addressed by the master and subsequently by this court, whereby said funds were assessed against the plaintiff. To hold Huntington National Bank in contempt for the plaintiff’s disobedience is unjust, as Huntington National Bank is not an appropriate revue to compensate the defendant for the actions of the plaintiff. The court also notes that Steve Mazzarini filed a writ of summons against Huntington National Bank at case number 10604 of 2006 seeking reimbursement for these same monies. To find Huntington National Bank in contempt now has the possibility of rendering them responsible for the same monetary amounts at two different case numbers, whereby defendant would be unjustly enriched.

Additionally, the issue of when Huntington National Bank was provided notice of the May 12, 2003 order is analogous to the issue of prejudice. It is the contention of Trustee that Notice was provided to Huntington National Bank on May 26, 2003. Counsel for Huntington National Bank refutes Trustee’s argument by explaining that May 26, 2003 was Memorial Day, a national holiday, when banks generally are not open. Huntington National Bank does acknowledge that they did get notice of the May 12, 2003 order, but claim that said notice was provided on June 6, 2003. It was during this eleven day gap when plaintiff converted the largest amount of funds from the truck company’s financial accounts. Obviously, Huntington National Bank is prejudiced by the passing of almost six years before the filing of this petition, insomuch that neither party can properly establish for this court when notice was actually given.

Consistent with the opinion set forth above, the court supports its order of court dated January 4, 2010, and believes the same should be affirmed.

ORDER OF COURT

And now, December 30,2010, the court having received a memorandum opinion ordering this court to issue a supplemental opinion in support of the order of court dated January 4, 2010, and the court having complied with the Superior Court’s directions, it is hereby ordered and decreed that the record in this matter be forwarded to the prothonotary of the superior court, along with a copy of this order and opinion.

The prothonotary shall properly serve notice of this order and opinion by regular mail or personal service upon counsel of record and any party not represented by counsel at their last known address as contained in the court’s file.

      . The truck company was a business owned by the parties and constituted a large portion of the economic assets subject to the divorce proceedings.


author: SPRECHER, J.,

text:
    Rader v. Martin Stone Quarries, Inc.

      C.P. of Berks County,
    no. 09-14403.

      Jeffrey D. Servin, for plaintiff.

      Terry L. Parish and Paul R. Ober, for defendants.
    November 5, 2010
   SPRECHER, J.,

Plaintiff, Curtis H. Rader, appeals the order dated July 21, 2010, that imposed legal fees on him due to his dilatory, obdurate, and vexatious conduct. This opinion is filed pursuant to Pa. R.A.P. 1925.

FACTS

Plaintiff filed pro se a complaint and a document entitled “argument court” on November 5, 2009, to the above docket number. The complaint does not comply with the Pennsylvania Rules of Civil Procedure, especially Pa. R.C.P. 1022, and begins with “I, Curtis H. Rader, plaintiff in case Docket #09-6679 do completely dis-agree’ with Judge Lash’s conclusion and decisions made on October 20 2009 regarding the argument court hearing held on October 19 2009 by this judge.” In that case, the Honorable Scott E. Lash sustained the preliminary objections of all the defendants and dismissed plaintiff’s complaint. After plaintiff recites the order he then gives his “analysis of, and response to this ‘order.’” This “analysis and response” is a rambling diatribe about the courts in general and Judge Lash in particular. The relief requested, as stated by the plaintiff in the complaint, is the rescission of Judge Lash’s order, the filing of answers by defendants, Judge Lash’s reasons for the order, and Judge Lash’s explanation for his harassment and intimidation of a witness and defendant.

Defendants filed a joint motion to quash complaint. They alleged that this action involved the same issues as the prior action. In 2008 plaintiff filed a land use appeal. Plaintiff’s appeal was not sustained. On May 29, 2009, plaintiff filed a complaint with the same issues as the appeal. Defendants filed preliminary objections to the prior complaint which were sustained based on the doctrine of res judicata. On November 5, 2009, plaintiff filed the complaint in the above captioned proceeding. Defendants also contend in their motion that this complaint contains improper and scandalous averments, including statements which impugn the credibility of public officials and businesses without evidentiary support. Defendants sought counsel fees and a prohibition against plaintiff’s filing of any more documents without prior court approval. This case was assigned to Senior Judge Albert A. Stallone and was subsequently reassigned to the undersigned. On April 21, 2010, this court quashed the action and directed the prothonotary of Berks County to refuse to accept and to file any documents on behalf of plaintiff regarding the instant subject matter unless this court gives express prior approval to the filing of each document. The order also provided that counsel should prepare a rule if they wanted to pursue counsel fees.

All defendants filed a joint motion for counsel fees. This court presided over a hearing to determine costs. The parties testified to the costs that each incurred. Following the hearing and argument, this court found that all of the prior actions between the parties had been resolved adversely against plaintiff and that all the present litigation also concerned issues that had previously been resolved. It further found that the second and third actions had been brought in bad faith, resulting in damages to the defendants in the form of costs and legal fees to defend the frivolous actions. This court asked plaintiff how much time was needed by him to pay the costs and fees. Plaintiff replied that he did not intend to pay the money because he was appealing the order. This court therefore ordered plaintiff to pay the legal fees owed to the various parties within sixty days.

ISSUES

Plaintiff raises the following issues in his concise statement of errors complained of on appeal:

1. This court erred when it ruled that the litigation was dilatory, frivolous, and in bad faith and ordered plaintiff to pay defendants’ attorney fees and costs; as plaintiff’s lawsuits were not dilatory, nor frivolous, nor in bad faith, as defendants’ actions constituted a nuisance and hazard to plaintiff’s and other’s property, health, and welfare.

2. This court erred when it ruled that the litigation was dilatory, as set forth above, as defendants in this case were in violation of Washington code rules and zoning regulations, specifically paragraphs § 139-79 etseq., which states that no land, building, structure, or premises can be altered or occupied in such a manner as to be dangerous, injurious, noxious, or otherwise a hazard. Defendants violated the above as set forth in that section. Because of these violations the lawsuits filed by defendant were not frivolous and therefore the awarding of attorney fees is neither justified nor valid.

3. This court erred when it ruled that the prior litigation was dilatory, as defendants’ lawsuits were totally justified, and in addition to the above, the actions of defendants were also in violation of the agreement among the Township of Washington and the defendants dated December 23,1991, and in particular paragraph 15, which specifies that casing contamination to the water supply and/or the surrounding water rights of defendant is a violation of the agreement; all of which justify the valid attempts at prior litigation by plaintiff; who at least had a prima facie position on this and the other matters set forth above. Therefore the awarding of attorneys’ fees to defendants was neither justified nor valid.

4. This court erred as a matter of law as plaintiff at least had a prima facie legal position in connection with all prior litigation pursuant to the equity powers and the jurisdiction of the court. Therefore, this court abused its discretion in granting the defendants’ motion for attorneys’ fees and costs.

DISCUSSION

This court found that plaintiff was obdurate and vexatious in filing the instant action. Plaintiff did not like the resolution of his land use appeal. Apparently, he did not file an appeal. Instead, he filed a new action with a complaint filled with slurs, insinuations, and aspersions against the court, defendants, attorneys, and anyone else who disagreed with plaintiff. The first complaint was dismissed. Plaintiff did not file an appeal. Again, he initiated a brand new action raising the same issues. At this point in time, the issues are res judicata. Plaintiff is not asserting any new cause of action. He is just obdurately pursuing the same issues and vilifying everyone who disagrees with his position. This court awarded the fees and costs because plaintiff brought the actions in bad faith, causing the parties additional attorneys’ fees and costs.

Plaintiff’s concise statement attempts to raise substantive issues that should have been raised in the prior land use appeal. Plaintiff perceives defendants’ actions as a nuisance and hazard to his property, health, and welfare. He argues that defendants are in violation of Washington Township’s rules and zoning regulations so the various lawsuits have not been frivolous. Again, plaintiff does not understand that these issues have been addressed with final orders. If plaintiff was not satisfied with the resolution of his land use appeal, then his remedy was an appeal to the appellate court as he did in the case sub judice. The solution was not to rehash all his issues in the filing of repetitious complaints until he obtains a decision that he likes. Moreover, this court did not make the rulings in the other cases because those cases were assigned to other judges. The coordinate jurisdiction rule mandates that judges of coordinate jurisdictions sitting in the same court and in the same case should not overrule the decisions of each other. Fred E. Young, Inc., v. Brush Mountain, 697 A.2d. 984 (Pa. Super. 1997). If new issues arise, then plaintiff may file a new action without the inclusion of scandalous and impertinent material.

In accordance with the foregoing opinion, this court submits that plaintiff’s appeal should be dismissed and its order sustained.


author: CHERRY, J,

text:
    Park v. Nichols

      C.P. of Clearfield County,
    no. 2010-395-CD.

      Gregory Bazylak, for plaintiff.

      Rebecca Ardoline, for defendants.
    September 1, 2010
   CHERRY, J,

This case involves a custody dispute between Shirley J. Park, (hereinafter “grandmother”) and Tracy C. Nichols, (hereinafter “mother”) and James B. Park, (hereinafter “father”), over the minor child, Nathan James Park, d.o.b. 8-21-97. On November 6, 2009, grandmother filed a petition for custody and for emergency special relief in Jefferson County. An order was entered that same day granting custody of the minor child to grandmother. The case was subsequently transferred to Clearfield County after a finding that jurisdiction was properly in Clearfield County. The February 9, 2010, order regarding the transfer also provided that temporary custody was to remain with grandmother until an order was entered by this court.

On March 12, 2010, mother filed a petition for special relief and modification of custody order. On June 15 and July 26, 2010, a custody trial was held pursuant to this matter, with each party presenting evidence and testimony. By order of this court, the parties’ submitted letter briefs, which were timely received, and the matter is now ripe for decision.

A court’s overriding concern in awarding custody is the overall best interest of the child. “The paramount concern in a child custody case is the best interest of the child, based on a consideration of all factors that legitimately affect the child’s physical, intellectual, moral and spiritual well being.” Swope v. Swope, 698 A.2d 264, 265 (Pa. Super. 1997). The determination is to be made on a case-by-case basis. Myers v. DiDomenico, 652 A.2d 956, 957 (Pa. Super. 1995). Each case is unique and as such the court must make each decision as to what is in the best interest of the child on a case-by-case basis considering all factors which impact the child. Lee v. Fontine, 594 A.2d 724 (Pa. Super. 1991).

Additionally, in cases where a grandparent seeks custody, the requirements of 23'Pa.C.S.A. § 5313(b) must also be satisfied. The statute requires a grandparent show she (1) has a genuine care and concern for the child; (2) had a relationship with the child that began with parental consent or by order of the court; and (3) has assumed the role and responsibilities of the child’s parent for twelve months or has assumed or deemed it necessary to assume responsibility of the child, who is at substantial risk of parental abuse, neglect, drug or alcohol abuse or mental illness. 23 Pa. C.S.A. § 5313(b).

The court has carefully considered various factors and has determined that it is in the child’s best interests not to be in the custody of either mother or father and to grant primary physical custody to grandmother. The court finds that grandmother can provide a more stable environment, one superior to that of either parent.

The court is satisfied that grandmother can assure the child will be raised in a loving, stable environment. Grandmother has had primary custody since November 2009, and has consistently taken care of the child’s daily needs, schedules, and various appointments. Since residing with grandmother, the child has missed significantly less school than when he resided with mother. According to testimony, during the 2008-09 school year, child missed 39.5 days, whereas during the 2009-10 school year, the majority of which the child was in grandmother’s custody, he missed just two days.

In addition, evidence established that mother moved thirty-nine times in the past eleven years, which averages out to more than three relocations per year. Mother’s most recent move occurred earlier this year. Likewise, father is not an ideal candidate to be awarded custody because of his alcohol abuse and criminal conduct, which has led to recent incarceration.

Taken as a whole, the child’s best interests will be served by granting primary physical custody to grandmother with periods of partial custody awarded to mother, as set forth in the court’s custody order. The court finds that grandmother shall have primary physical custody of the child as she has a stable and nurturing relationship with the boy. Additionally, grandmother has a genuine care and concern for the child, has a relationship with the child beginning with parental consent, and has assumed responsibility of the child, who was at substantial risk of parental neglect. 23 Pa. C.S.A. § 5313(b). Furthermore, the best interests of the child are paramount and grandmother must prevail in this matter.

Based upon the foregoing, the court enters the following:

ORDER

And now, September 1, 2010, following custody hearing, the timely receipt of briefs, the presentation of issues before the court and upon consideration of the same, it is the order of this court as follows:

1. Shirley J. Park, (hereinafter “grandmother”) and Tracy C. Nichols, (hereinafter “mother”) shall share legal custody of minor child, Nathan James Park, d.o.b. 8-21-1997.
a. Legal custody is defined as the legal right to make major decisions affecting the best interests of the minor child, including, but not limited to medical, religious and educational decisions and wherein each party shall have equal access to any and all medical, dental, ocular, mental health, school and legal records. Medical, dental, ocular and mental health providers and school administrators shall accept a copy of this order as authorization to release to either party any documentation and/or records as may be requested. In addition, it is understood by both parties that they shall communicate fully with the other in an effort to ensure that all directives pertaining to the minor child from physicians, dentists and teachers are followed absolutely and all information pertaining to any prescriptions the child is on is exchanged between the parties.
2. Grandmother shall have physical custody of the minor child, subject to mother’s periods of partial custody as follows:
a. Every other weekend from Friday at 5:00 p.m. until Sunday at 8:00 p.m.;
b. On each and every Wednesday, mother shall have partial custody from 5:00 p.m. until 8:00 p.m.
3. Holidays shall be shared as follows:
a. Thanksgiving: In even numbered years, mother shall have custody of the child from 4:00 p.m. the day before Thanksgiving until 2:00 p.m. Thanksgiving Day. Grandmother shall have partial custody from 2:00 p.m. on Thanksgiving Day until 8:00 p.m. the Sunday following Thanksgiving. In odd numbered years, grandmother shall have custody of the child from 4:00 p.m. the day before Thanksgiving until 2:00 p.m. Thanksgiving Day. Mother shall have partial custody from 2:00 p.m. on Thanksgiving Day until 8:00 p.m. the Sunday following Thanksgiving.
b. Christmas: In even numbered years, grandmother shall have custody of the child from December 24th at 4:00 p.m. until December 25th at 2:00 p.m., and mother shall have custody of the child from December 25th at 2:00 p.m. until December 28th at 6:00 p.m. grandmother shall then have custody from 6:00 p.m. on December 28th until 6:00 p.m. on December 31st. In odd numbered years, mother shall have custody of the child from December 24th at 4:00 p.m. until December 25th at 2:00 p.m., and grandmother shall have custody of the child from December 25th at 2:00 p.m. until December 28th at 6:00 p.m. mother shall then have custody from 6:00 p.m. on December 28th until 6:00 p.m. on December 31st.
c. Easter: In even numbered years, grandmother shall have custody of the child from the Friday before Easter at 4:00 p.m. until Easter Sunday at 2:00 p.m. mother shall have custody from 2:00 p.m. until 8:00 p.m. on Easter Sunday. In odd numbered years, mother shall have custody of the child from the Friday before Easter at 4:00 p.m. until Easter Sunday at 2:00 p.m. grandmother shall have custody from 2:00 p.m. until 8:00 p.m. on Easter Sunday.
d. Other Holidays: The parties shall alternate the minor holidays of New Years Day, Memorial Day, Independence Day (Fourth of July) and Labor Day. In odd numbered years, mother shall have custody on New Years Day and the Fourth of July, and grandmother shall have custody on Memorial Day and Labor Day. In even numbered years, grandmother shall have custody on New Years Day and the Fourth of July, and mother shall have custody on Memorial Day and Labor Day. The party entitled to possession shall have the child from 9:00 a.m. until 8:00 p.m. In the event that a party is entitled to possession if the child on a holiday which falls on a Monday and that party is also entitled to the immediately preceding weekend, that party shall then be able to maintain the child over Sunday evening.
e. Mother shall always have custody of the child for the weekend of Mother’s Day, and grandmother shall always have custody of the child for the weekend that includes Father’s Day. Said weekends shall include Friday evening through Sunday evening.
f. Summer: Grandmother and mother shall have alternating one-week periods of exclusive custody during each of the summer months, beginning the first Sunday following the last day of school and ending on the last Sunday preceding the start of the new school year, with mother having the first full week of summer visitation.
i. For purposes of exchanging custody during the summer months, the parties shall meet and exchange custody of the minor child at 12:00 p.m., unless otherwise agreed.
g. The holiday, Mother’s/Father’s Day, and summer visitation schedule shall take precedence over regular periods of custody.
4. The parties shall communicate with each other to confirm, postpone, cancel or otherwise change any scheduled period of partial custody. Any changes should be made no less than twenty-four (24) hours in advance.
5. Unless otherwise agreed upon by the parties, the parties shall share transportation in that the party who is to obtain custody of the child shall provide transportation. This may be the party or that party’s adult designee(s), with the designee(s) being required to have an established relationship with the child.
6. Each party, at all times, shall inform the other party of her current address and telephone number.
7. Both mother and grandmother shall communicate directly with each other with regard to the well-being and best interest of the child and shall not communicate through the child.
8. Each party shall keep the other informed of the progress of the child’s education, medical care and social activities.
9. Neither party shall malign or speak in a derogatory fashion about the other in the presence of the child nor will they permit anyone else to do so. Each party will exercise her best efforts to promote a healthy relationship between the child and the other party and the other party’s family. The parties are directed to conduct themselves in a reasonable and appropriate manner at all times during their interactions with each other and their family members concerning custody of the child and issues relating to the child’s care and nurturance.
10. Neither party shall restrict telephone contact between the child and the party not in possession of the child. The party who is not in possession of the child may have reasonable telephone contact with the child, which means up to three (3) telephone calls per week providing the same is done by and no later than 8:00 p.m.
11. The parties shall ensure continuity of care for the child during extended periods of custody so that any physical therapy, medical treatment or mental health therapy are not interrupted and is coordinated so as to ensure maximum benefit for the child.
12. During either party’s possession of the minor child, if the minor child has a serious illness or injury which requires medical attention, that party shall immediately notify the other party.
13. Neither party shall consume alcoholic beverages prior to or during the periods the child is in their custody.
14. The parties shall not smoke nor shall they permit anyone else to smoke in the presence of the child. In the presence of the child shall mean in any residence or structure where the child is located and/or in any automobile in which the child is transported.
15. This order shall supersede all previous orders and shall remain in foil force and effect until further order of court.
16. The parties may modify this schedule if they mutually agree to do so.


author: TERESHKO, J.,

text:
    Robinson v. Madden Law Firm, P.C.

      Erik T. Robinson, pro se.

      Paul C. Troy, for defendant.
    December 1, 2010
   TERESHKO, J.,

PROCEDURAL HISTORY

Plaintiff appeals this court’s order dated July 2, 2010, granting defendant Madden Law Firm’s preliminary objections dismissing plaintiff’s complaint.

FACTUAL BACKGROUND

Prior to commencing the action that is the subj ect of this appeal, on April 16, 2008, plaintiff Erik Robinson filed a complaint againstAmeritoner.com, citing violations of the Federal Junk Fax Prevention Action (FJFPA), 47 U.S.C. §227(b)(l)(C) because of junk faxes he was allegedly receiving at his place of employment, University of Pennsylvania (complaint, ¶6-7). A default judgment was entered for plaintiff on August 11, 2009. (Complaint, ¶7). On October 21, 2009, Attorney Waverly Madden, through her law firm, Madden Law Firm, P.C., filed a petition to open the default judgment on behalf of Fiducia, Inc. d/b/a Toner Dome, Inc. (TDI), a cross-claimant in the FJFPA action. (Defendants’ preliminary objections, ¶3) Fiducia, Inc.’s basis for opening the default judgment was that it had never received notice of the complaint. (Defendants’ preliminary objections, ¶6)

On December 31, 2009, Honorable Esther Sylvester granted defendant Fiducia’s motion to open the default judgment as to Ameritoner.com and also permitted Fiducia (cross-claimant) to file an answer to plaintiff’s complaint. On April 1, 2010, Ms. Madden was permitted by leave of court to withdraw as attorney for Fiducia. Litigation of this case continues in this court.

Plaintiff thereafter commenced this action against defendant, Madden Law Firm, P.C., by filing his complaint on May 11, 2010. Plaintiff alleged that Ms. Madden d/b/a Madden Law Firm, P.C. made falsified statements about him in court filings and defamed plaintiff to his former employer, the University of Pennsylvania, as well as to the police in violation of 42 Pa. C.S. §§ 8341-8345 and 42 Pa. C.S.A. §8355. (Complaint, ¶8-11)

On June 7,2010, defendant filed preliminary objections to plaintiff’s complaint under Pa.R.C.P. 1028(a)(4) for legal insufficiency of a pleading. (Defendants’ preliminary objections, ¶24) Defendant alleged plaintiff could not meet the standard for defamation under the Uniform Single Publication Act, 42 Pa. C.S. §§ 8341-8345 because: 1) plaintiff’s complaint failed to allege acts of malice or negligence committed by the defendant as required under 42 Pa. C.S.A. §8344; 2) none of the alleged defamatoiy communications were published by defendant; and 3) any statements defendant made in court filings were considered privileged communications. (Defendants’ preliminary objections, ¶26-29) Furthermore, defendant argued plaintiff’s claim for the making of falsified court filings under Pa. C.S.A. § 8355 should be dismissed because the statute had been suspended absolutely and replaced with Pa. R.C.P. 1023.1. (Defendants’ preliminary objections, ¶35-36)

On June 10, 2010, plaintiff filed his response to defendant’s preliminary objections, withdrawing his claim under 42 Pa. C.S.A. § 8355, but maintaining that he could meet the requirements for a defamation cause of action under the Uniform Single Publication Act, 42 Pa. C.S. §§ 8341-8345. (Plaintiff’s response to defendant’s preliminary objection, ¶26-38)

On June 18,2010, defendant filed a reply memorandum of law to plaintiff’s response in opposition to preliminary objections. Plaintiff then filed a motion to amend the complaint under Pa.R.C.P. 1033 on June 21,2010 in which he sought to withdraw his claim under suspended statute, 42 Pa. C.S.A. § 8355. (Plaintiff’s motion to amend the complaint, pg. 1) Plaintiff attached his proposed amended complaint to his motion.

By order dated July 2,2010, this court granted defendant, Madden Law Firm’s preliminary objections and denied plaintiff’s motion to amend the complaint.

On July 6,2010, plaintiff filed his notice of appeal from the July 2, 2010 order and subsequently issued his 1925 statement of errors alleged on appeal.

The issues before this court are:

Whether this court committed an error of law in denying plaintiff’s motion to amend the complaint where the amended complaint did not correct the fatal errors of the original complaint.
Whether this court committed an error of law or abused its discretion in and granting defendant’s preliminary objections for legal insufficiency of pleading pursuant to Pa.R.C.P. 1028(a)(4), where plaintiff’s pleadings failed to prove that he was entitled to recover for defamation under 42 Pa.C.S.A.§§8341-8345.

LEGAL ANALYSIS

A preliminary objection in the nature of a demurrer tests the legal sufficiency of the plaintiff’s complaint. Smith v. Wagner, 588 A.2d. 1308 (Pa. Super. 1990). The standard of review in granting preliminaiy objections is that “all material facts set forth in the complaint, as well as all inferences reasonably deductible therefrom, are admitted as true.” Youndt v. First Nat’l Bank, 868 A.2d 539, 542 (Pa. Super. 2005). “A preliminary objection in the nature of a demurrer must be sustained where it is clear and free from doubt that the law will not permit recovery under the facts alleged.” Petsinger v. Dept. of Labor & Indus., 988 A.2d 748, 753 (Pa. Cmwlth. 2010) (citing Africa v. Horn, 701 A.2d 273 (Pa. Cmwlth. 1997)).

In Pennsylvania, the trial court is vested with broad discretion to determine whether or not to allow an amendment to the pleadings. Geiman v. Board of Assessment and Revision of Taxes, 412 Pa. 608, 614, 195 A.2d 352, 355-56 (Pa. 1963). Provided that the trial court’s decision to grant or deny an amendment is not a clear abuse of discretion in light of the record, it will not be overturned. Daley v. John Wanamaker, Inc., 464 A.2d 355, 361 (Pa. Super. 1983).

The Supreme Court has described the heavy burden facing an appellant from a discretionary trial court determination: “[I]t is not sufficient to persuade the appellate court that it might have reached a different conclusion if, in the first place, charged with the duty imposed on the court below; it is necessary to go further and show an abuse of the discretionary power.” Id. (citing Mackarus’s Estate, 431 Pa. 585, 596, 246 A.2d 661,666-67 (Pa. 1968). If there is any basis for the trial court’s decision, the decision must stand.

Brown v. Delaware Valley Transplant Program, 371 Pa. Super. 583, 587, 538 A.2d 889, 891 (Pa. Super. 1988).

An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence or the record, discretion is abused. Brown, 538 A.2d at 891.

On appeal, plaintiff contends that this court erred in denying his motion to amend the complaint pursuant to 1028(c)(1) and by failing to declare defendant’s preliminary objections moot after receipt of the motion to amend the complaint. Plaintiff further argues that this court should have granted the motion to amend the complaint without evaluating the merits thereof.

Pennsylvania Rule of Civil Procedure 1028(c)(1) establishes the right of a party to file an amending pleading as of course:

A party may file an amended pleading as of course within twenty days after service of a copy of preliminary objections. If a party has filed an amended pleading as of course, the preliminary objections to the original pleading shall be deemed moot.

Pursuant to the Pa.R.C.P. 1028(c)(1), plaintiff filed a response to the preliminary objections. In addition, plaintiff also petitioned this court for leave to file an amended complaint.

Pennsylvania Rule of Civil Procedure 1033 states that leave to file an amended pleading must be done by either consent of the adverse party or by obtaining leave of court.

The right of a party to file an amended pleading is subject to the discretion of the trial court as set forth in Pa.R.C.P.1033. Stempler v. Frankford Trust Co., 311-12, 529 A.2d 521, 524 (Pa. Super. 1987).

Plaintiff did not comply with the requirements set forth in Pa.R.C.P. 1028(c)(1) allowing him to file an amended complaint without obtaining leave of court. Instead, plaintiff filed a motion requesting leave to amend the complaint within the 20-day response period. Because plaintiff chose to seek leave to amend his complaint by moving this court to grant him permission to do so, he waived applicability of Pa.R.C.P. 1028(c)(1), and the submission of an amended complaint fell within the discretion of this court pursuant to Pa.R.C.P. 1033.

Despite plaintiff’s error, this court reviewed the motion to amend the complaint and the proposed amended complaint to determine if the amended complaint had cured the problems that plagued his original complaint. (Order 7/2/10, pg.l)

“Where the initial pleading reveals that the complaint’s defects are so substantial that amendment is not likely to cure them, and that the prima facie elements of the claim or claims asserted will not be established, the right to amend is properly withheld.” Feingold v. Hill, 521 A.2d 33 (Pa. Super. 1987). Where an amendment would be futile, judicial efficiency requires that the amendment be properly denied. Id.

In this case, the purpose of plaintiff’s amendment was to withdraw his claim for falsification of court filings under suspended statute 42 Pa. C.S.A. § 8355. (Plaintiff’s motion to Submit amended complaint, pg. 1) When comparing both submissions, this court found that the amended complaint was the same as the original complaint except for the removal of certain claimed damages under a repealed statute (42 Pa.C.S.A. §8355). The amended complaint, had this court permitted it to be filed, would not have cured the fatal defects that plagued the defamation claim in original complaint. Therefore, the court denied plaintiff’s motion to amend. Had plaintiff filed the amended complaint attached to his motion to amend, it would have contained the same fatal errors which were the subject of defendant’s preliminary objections that were granted by this court.

This court examined the defendant’s preliminary obj ections based on legal insufficiency of pleading pursuant to Pa.R.C.P. 1028(a)(4) and the responses thereto.

Under Pennsylvania’s Uniform Single Publication Act, 42 Pa. C.S. §§ 8341-8345, a plaintiff claiming defamation has the burden of proving:

1) the defamatory nature of the alleged communication(s);
2) the publication of the communication(s) by the defendant;
3) the application of the communication to the plaintiff;
4) the recipient’s understanding of the communication’s meaning;
5) the recipient’s understanding that the communication is intended to be applied to plaintiff;
6) special harm resulting to the plaintiff; and,
7) abuse of a conditionally privileged occasion.

According to caselaw, “A communication is defamatory if it tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Maier v. Maretti, 671 A.2d 701, 704 (Pa. Super. 1995). See also Rybas v. Wapner, 457 A.2d 108 (Pa. Super. 1983). In determining whether or not the communication at issue is capable of a defamatory meaning, the court must consider such factors as, the likely effect of the communication on average recipients, taking into account their knowledge and expertise, and the nature of the audience. Id. at 282-83, 704.

Plaintiff’s complaint alleges that Ms. Madden d/b/a Madden Law Firm, P.C. defamed him by contacting his former employer, the University of Pennsylvania, and threatening the University with litigation unless plaintiff was terminated. Plaintiff was indeed terminated from his position. Plaintiff alleges his termination was as a result of these communications, but does not allege any facts in support thereof. The case of Maier v. Maretti, describes a similar course of events. Maier, 671 A.2d at 704. In that case, the court concluded that the communication from appellant’s immediate supervisor to her branch manager that appellant was crude, vulgar and insubordinate did not relate to appellant’s fitness for employment, nor did it affect her opportunity to be hired for a similar position elsewhere; therefore, it was not defamatory, even though appellant was fired immediately after the statement was attributed to her. See Maier v. Maretti, 448 Pa. Super. 276, 671 A.2d. 701 (Pa. Super. 1995).

In this case, plaintiff does not suggest that the alleged defamatory communications hindered his ability to gain employment following his termination.

Because plaintiff has not alleged any facts that demonstrate that the communications by Ms. Madden either harmed his reputation in the community or caused his employer to believe he was unfit for his position. Therefore, the communications cannot be considered defamatory.

In Rose v. Constantino, 766 A.2d 1265 (Pa. Super. 2001), the Superior Court found that a complaint was properly dismissed for failure to state a claim when statements made to an employer were incapable of defamatory meaning. A faculty member and chairperson at a nursing school wrote a letters to the dean of the nursing school advising the dean that plaintiff was unfit for her job. Id. In affirming the trial court, the Superior Court found that the letters were not capable of defamatory meaning because the communications were directed to a particular audience whose professional duties included evaluating university employees’ performance and assessing their merit as teachers; and therefore, this audience would have been less likely than the general public to be affected by any derogatory inference in the letters. Id. (citing Beckman v. Dunn, 419 A.2d 583, 586 (Pa. Super. 1980).

In this case, the communications from defendant were directed to the University of Pennsylvania and involved plaintiff’s conduct while he was an employee for University of Pennsylvania. Plaintiff’s employers in this case were also responsible for determining his fitness as an employee. The facts that gave rise to this action also occurred at plaintiff’s place of work — where he was allegedly receiving the junk faxes. Thus, defendant’s communications to the University of Pennsylvania were not considered defamatory.

Plaintiff argues that defendant defamed him by filing criminal charges against him for harassment. In direct contradiction to plaintiff’s accusations, plaintiff states in his complaint that he was never contacted by the police about any charges allegedly filed by Ms. Madden. Thus, he cannot substantiate any element of 42 Pa. C.S. §§ 8341-8345 as to these facts. Additionally, if defendant had contacted police and filed a police report, this would be a privileged communication. Pawlowski v. Smorto, 588 A.2d 36 (Pa. Super. 1991). Statements made solely to law enforcement officials in which an accusation of a crime is made for the purpose of inducing those officials to bring criminal charges against the accused are absolutely privileged. Id. at 81-82.

In addition to allegations of false and derogatory statements made to plaintiff’s employer and to the police, plaintiff also argues that defendant made false and derogatory statements about the plaintiff in public court filings, (complaint, ¶11). Statements set forth in pleadings are privileged. As stated in Greenberg v. Aetna Insurance Company.

When alleged libelous or defamatory matters, or statements, or allegations and averments in pleadings or in the trial or argument of a case are pertinent, relevant and material to any issue in a civil suit, there is no civil liability for making any of them. Moreover, if questioned or challenged by the opposite party, all reasonable doubts (if any) should be resolved in favor of relevancy and pertinency and materiality. 427 Pa. 511, 514-15, 235 A.2d576, 577-78(Pa. 1967).

Because the privilege acts as an absolute bar to libel actions arising out of statements contained in pleadings, it extends so far as to permit statements made falsely or maliciously and without reasonable and probable cause. Id. The privilege exists in light of public policy considerations, promoting unhindered communications in judicial proceedings without fear of consequences. Id. at 516, 578. The privilege is necessary for the administration of justice, even if it may sometimes be abused. Id. Thus, the communications to plaintiff’s employer, the police and the courts are privileged communications not actionable under the prevalent caselaw.

Plaintiff has not set forth any facts in his pleadings explaining how the communications, which were directed to plaintiff’s former employer, the police and the courts, constitute a publication in light of the limited audience to which each communication was allegedly made. Further, plaintiff fails to set forth evidence indicating that members of the community were deterred from associating with him as a result of the alleged publication of defamatory communications.

CONCLUSION

For the foregoing reasons, this court respectfully requests that its decision to grant defendant Madden Law Firm’s preliminaiy objections to the complaint of Erik T. Robinson be affirmed.

      . A review of the docket in this case does not indicate when Ms. Madden entered her appearance.

      . Robinson v. Ameritoner.com, April Term, 2008, No. 1654.