author: NEALON, /.,

text:
    Venosh v. Henzes

      C. P. of Lackawanna County,
    No. 11 CV 3058

      Gary Solomon and Justin L. Groen, for plaintiff.

      Eugene P. Feeney and Noah E. Katz, for defendants Jack Henzes, M.D. and Scranton Orthopedic Specialists.

      James A. Doherty, Jr., for defendant Cindy S. Anderson.

      Timothy E. Foley, for defendant Moses Taylor Hospital

      Paul K. Leary, Jr. and Matthew L. Bleich, for records deponents.
    Sept. 4, 2014
   NEALON, /.,

— Blue Cross of Northeastern Pennsylvania (“Blue Cross”) and First Priority Health (“First Priority”) have filed an application seeking (1) to amend our discovery order of August 8, 2014, for an interlocutory appeal pursuant to 42 Pa.C.S. § 702(b) and Pa.R.A.P. 1311, and (2) to stay the enforcement of that order pending appeal. (Docket entry no. 99). By order dated August 19, 2014, plaintiff, Ann Marie Venosh (“Venosh”), was directed to file an answer to that application on or before September 2,2014. (Docket entry no. 100). Venosh filed a timely response on September 2, 2014, (Docket entry no. 104), such that the application is now ripe for disposition.

During pre-trial discovery in this medical malpractice action, Venosh served records subpoenas upon Blue Cross and First Priority seeking copies of the “quality of care” reviews and investigations that Blue Cross had conducted with regard to the medical treatment that the named defendants provided to Venosh. Venosh v. Henzes, 2014 WL 3886854, at *4 (Lacka. Co. 2014). Blue Cross objected to the production of those materials on the ground that they are protected from discovery by the Peer Review Protection Act (“PRPA”), 63 P.S. §§ 425.1 — 425.4. Id. at *4-5. By memorandum and order dated August 8, 2014, we held that the discovery protections afforded by the PRPA apply only to peer reviews which are initiated and completed by organizations or individuals that provide health care services, as opposed to those entities that sell health insurance. Id. at *8-9. Since Blue Cross is a “hospital plan corporation” that provides hospitalization and related health insurance benefits to plan subscribers for a fee, and is neither a direct health care practitioner nor the administrator or operator of a health care facility, we concluded that its “quality of care” reviews, including its external peer reviews by third party specialists, are not immune from discovery under the PRPA. Id. at *9.

On August 15, 2014, Blue Cross and First Priority filed a “notice of appeal” of our discovery ruling to the Superior Court of Pennsylvania. (Docket entry no. 97). Three days later, Blue Cross and First Priority also filed the instant application to “amend the order pursuant to 42 Pa.C.S. § 702(b) and Pa.R.A.P. 1311(b) to make it eligible for a permissive appeal,” and to “stay the enforcement of the August 8, 2014 order pending appeal.” (Docket entry no. 99 at pp. 4, 7). Blue Cross and First Priority note that the discoverability of their “quality of care” reviews presents an issue of first impression in Pennsylvania, and that the Pennsylvania Supreme Court decision referenced in our ruling, McClellan v. Health Maintenance Organization of PA, 546 Pa. 463, 686 A.2d 801 (1996), is a plurality opinion having no precedential value. (Id. at p. 5). Venosh counters that since “there is no law supporting the protection from discovery of the [quality of care] reviews, there cannot be a finding that there is ‘substantial ground for difference of opinion’ on the matter,” as required by 42 Pa.C.S. § 702(b). (Docket entry no. 104 at pp. 7-8). Venosh further posits that “any appeal from the order regarding the discoverability of the [quality of care] review materials will have nothing whatsoever to do with the ultimate termination of this matter.” (Id. at p. 8).

Pennsylvania Rule of Appellate Procedure No. 1311 governs permissive appeals of interlocutory orders containing the statement prescribed by 42 Pa.C.S. § 702(b), and requires the appellant to file an application, within thirty days after the entry of the interlocutory order, seeking to amend the order to include the required statement. See Pa.R.A.P. 1311(b). The language specified by Section 702(b) of the Judicial Code is “that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter.” 42 Pa.C.S. § 702(b). Inclusion of the statement required by Section 702(b) does not entitle the appellant to file a notice of appeal, and instead merely serves as a condition precedent to the filing of a petition for permission to appeal pursuant to Pa.R.A.P. 1311. See Com. v. Yingling, 911 A.2d 572, 575 (Pa. Super. 2006); In re Kelly. 704 A.2d 172, 175 (Pa. Cmwlth. 1997).

In a prior discovery dispute in this case, we held that two incident reports that were prepared by defendant, Moses Taylor Hospital (“Moses Taylor”), were not protected from discovery by the PRPA, Section 311 of the Medical Care Availability and Reduction of Error (“MCare”) Act, 40 P.S.§1303.311, and S ection 299b-22 of the federal Patient Safety Quality Improvement Act of 2005 (“PSQIA”), 42 U.S.C. § 299b-22. See Venosh v. Henzes, 38 Pa. D. & C. 5th 411 (Lacka. Co. 2013). Since no appellate court had addressed the discoverability of hospital incident reports under the MCare Act or the PSQIA, Moses Taylor filed an application for amendment of that discovery order to include the statement specified in 42 Pa.C.S. § 702(b) so that it could file a petition for permission to appeal pursuant to Pa.R.A.P. 1311. (Docket entry no. 55). At the time, although several parties and witnesses had been deposed, discovery was not completed, nor had “any expert witness reports been secured and produced.” Venosh v. Henzes, 2013 WL 5701655, at *3 (Lacka. Co. 2013). After finding that the discovery ruling involved a controlling question of law as to which there was a substantial ground for difference of opinion and that an immediate appeal may materially advance the ultimate termination of this case, we granted Moses Taylor’s application on October 18, 2013. Id. at *3. OnNovember 13,2013, Moses Taylor filed a petition for permission to appeal with the Superior Court of Pennsylvania. (Docket entry no. 70). Less than eight months later, the Superior Court affirmed the discovery order compelling the production of Moses Taylor’s incident reports. See Venosh v. Henzes, No. 1498 MDA 2013 at pp. 5-6 (Pa. Super. July 11, 2014).

To warrant the proffered amendment of our latest discovery ruling pursuant to Pa.R.A.P. 1311 and 42 Pa.C.S. § 702(b), Blue Cross and First Priority must establish that (a) the order involves a controlling question of law as to which there is substantial ground for difference of opinion, and (b) an immediate appeal may materially advance the ultimate termination of this matter. The absence of any decisional precedent addressing the issue(s) being raised on appeal may demonstrate the requisite “substantial ground for difference of opinion.” See Com. v. Tilley, 566 Pa. 312, 317, 780 A.2d 649, 651 (2001) (holding “that the [trial] court abused its discretion in not certifying its discovery order for appeal,” and stating that “as evidenced by the respective arguments of the parties and the lack of Pennsylvania case law on this issue, there is a substantial ground for a difference of opinion regarding this issue.”). While it is true that the Supreme Court and Superior Court of Pennsylvania have considered the discoverability of peer reviews that are performed by IPA model FIMOs, see McClellan supra, and McClellan v. Health Maintenance Organization of PA. 442 Pa. Super. 504, 660 A.2d 97 (1995), aff’d, 546 Pa. 463, 686 A.2d 801 (1996), no appellate court has directly addressed the applicability of the PRPA to peer reviews conducted by a hospital plan corporation such as Blue Cross. In light of the dearth of any appellate authority determining the discoverability of peer reviews initiated by hospital plan corporations, Blue Cross and first priority have satisfied the “substantial ground for difference of opinion” criterion.

The parties’ submissions reflect that an immediate appeal of our discovery order of August 8, 2014, may materially advance the ultimate conclusion of this case and resolve comparable discovery disputes in pending or future malpractice actions. The court record indicates that the parties have not requested or secured a scheduling order under Pa.R.C.P. 1042.41 or a case management order pursuant to Lacka. Co. R.C.P. 4000.2 setting deadlines for the completion of discovery and the production of expert reports. Venosh avers that discovery is ongoing, that the exchange of expert reports is anticipated “in the near future,” and that “[tjhere is no trial date” set in this matter. (Docket entry no. 104 at p. 8). The production of Blue Cross’s “quality of care” review, including the statement that Blue Cross obtained from Dr. Henzes and which his counsel refused to permit him to discuss during his deposition, will warrant the re-deposition of Dr. Henzes on that matter. See Venosh v. Henzes, 2014 WL 3886854, at *3 n. 2 (Lacka. Co. 2014). Until all remaining discovery has been completed and the parties’ expert reports have been exchanged, a Certificate of Readiness may not be filed under Lacka. Co. R.C.P. 214 so that this case may be assigned to a judge to schedule a date certain for trial. See Fratzola v. Klepadlo, 26 Pa. D. & C. 5th 533, 537 n. 2 (Lacka. Co. 2012).

In short, the trial of this case is at least nine months away, regardless of whether the pending application of Blue Cross and First Priority is granted. Blue Cross and first priority have not requested a stay of all proceedings under 42 Pa.C.S. § 702(b), as a result of which the parties are free to conclude discovery, with the exception of the production of the “quality of care” review and Dr. Henzes’ re-deposition, during the pendency of any appellate review of the discovery order of August 8, 2014. Assuming arguendo that the Superior Court of Pennsylvania addresses an appeal by Blue Cross and First Priority as expeditiously as it decided Moses Taylor’s discovery appeal, the appeal of our latest discovery ruling will be decided well in advance of any anticipated trial date in this case. Consequently, an appeal of the order dated August 8, 2014, will not delay the ultimate disposition of this case.

Accordingly, the application of Blue Cross and First Priority to amend the order of August 8, 2014, pursuant to Pa. R.A.P. 1311 and 42 Pa. C.S. § 702(b) will be granted. Since the confidential nature of any allegedly privileged documents will be irreparably lost if the “quality of care” review materials are produced and the discovery ruling is later determined to be erroneous, see Dodson v. DeLeo, 872 A.2d 1237, 1241 (Pa. Super. 2005), the request to stay the enforcement of our discovery order pending appeal will likewise be granted.

And now, this 4th day of September, 2014, upon consideration of the “Application of Non-Parties Blue Cross of Northeastern Pennsylvania and First Priority Health to Stay the Enforcement of this Court’s August 8, 2014 Interlocutory Order Pending Appeal, and to Amend the Order Pursuant to 42 Pa.C.S. § 702(b) and Pa.R.A.P. 1311” and the plaintiff’s response thereto, and based upon the reasoning set forth above, it is hereby ordered and decreed that:

1. The “Application of Non-Parties Blue Cross of Northeastern Pennsylvania and First Priority Health to Stay the enforcement of this court’s August 8, 2014 interlocutory order pending appeal, and to amend the order pursuant to 42 Pa.C.S. § 702(b) and Pa.R.A.P. 1311” is granted;

2. The order of August 8, 2014, is amended to include the statement specified in 42 Pa.C.S. § 702(b) that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order of August 8, 2014, may materially advance the ultimate termination of this matter; and

3. Enforcement of the order dated August 8, 2014, is stayed pending the conclusion of the appeal by Blue Cross of Northeastern Pennsylvania and First Priority Health.


source: Caselaw Access Project

author: LOVECCHIO, J,

license: Public Domain

text:
    In the Matter of Flynn

      C.P. of Lycoming County,
    No. 41-12-0032

      James Malee, for petitioner.

      Bret Southward, for respondent.
    Sept. 5, 2014-
   LOVECCHIO, J,

OPINION AND ORDER

This matter came before the court on August 11, 2014 for a conference and argument on the petition to purchase property filed by Janine Hakes, executrix of the Joan E. Flynn Estate, and a motion for judgment on the pleadings filed by Diane Hoover.

Decedent, Joan E. Flynn, owned property at 338 Bastian Avenue in South Williamsport, Pennsylvania. On April 4, 2007, decedent executed a deed transferring the property from decedent to decedent and her daughter, Diane Hoover, as joint tenants with the right of survivorship. On that same date, decedent, Diane Hoover, and Albert Hoover (Diane Hoover’s spouse) executed a family agreement. The agreement stated that decedent executed a deed granting Diane Hoover an interest in her property as an inter vivos gift and as part of an estate plan which included long-term healthcare planning. Mrs. Hoover agreed not to use the property, except for purposes agreed upon unanimously by decedent and Mrs. Hoover. Mrs. Hoover also agreed that decedent could live on the property for as long as she desired. If decedent wanted to sell the property, the Hoovers agreed to execute any and all documents necessary to effectuate the transfer. The agreement also provided that at the death of decedent, the Hoovers agreed that the net proceeds of the sale of the property or the value of the property as determined by the fair market value (minus taxes and other expenses) on the date of decedent’s death shall be distributed or paid according to decedent’s Last Will and Testament.

Decedent died on January 8, 2012. On January 18, 2012, Janine Hakes was appointed executrix of decedent’s Estate.

On May 27, 2014, the executrix filed a petition to purchase real property. In her petition, the executrix claims that, despite the joint tenancy language in the deed, the property at 338 Bastían Avenue is property of the estate, which the executrix seeks to purchase pursuant to 20 Pa.C.S.A. §3356. Executrix argues that the parties did not intend to create a joint tenancy with the right of survivorship. Instead, “the designation of [jjoint [tjenancy was made in an attempt to avoid Medicaid Estate Recovery, but the property in substance remained a probate asset.” Petition, ¶ 12.

On or about July 28, 2014, Mrs. Hoover filed a motion for judgment on the pleadings, in which she asserted that the 338 Bastían Avenue property does not belong to the estate. She argued that the deed clearly and unequivocally granted title to her and the decedent as joint tenants with the right of survivorship. Moreover, the clear and unambiguous terms of the family agreement permit Mrs. Hoover to either sell the property and distribute the proceeds to the estate or keep the property and pay the estate the fair market value.

Following the conference and argument on August 11, 2014, counsel for the estate submitted a letter brief on August 12, 2014 in which he cited Galford v. Burkhouse, 478 A.2d 1328 (Pa. Super. 1984) and argued that the real estate was property of the estate due to an express or resulting trust. Counsel for Mrs. Hoover submitted a letter brief on August 19, 2014 in which she contended that the Galford case was clearly distinguishable and had no bearing on this case. The matter is now ripe for decision.

In her petition, the executrix contends that the family agreement clearly and convincingly establishes that the parties to the deed had not intended to create a right of survivorship, despite the designation in the deed, as evidenced by the fact that decedent had complete control, use and access of the property during her lifetime and upon her death the value of the property would be added back into her probate estate and distributed as a part thereof. Petition, ¶10. Relying on Galford, the executrix asserts that parol evidence is admissible to show that the legal title conveyed by the deed was bare legal title, not joint tenancy with the right of survivorship; therefore, Mrs. Hoover holds the title to the real estate subject to an express or resulting trust for the benefit of decedent and her estate.

The court finds Galford distinguishable from this case. In Galford, Karl, the child to whom the property was deeded, acknowledged that the transfer of the property to him had been a conveyance to him as a trustee, but he claimed that the terms of the trust were that the property would be maintained as a home for his father, Leonard, during his lifetime, if possible, or sold to provide for Leonard’s maintenance and care and upon Leonard’s death the property was to be divided equally among all of the children. Prior to Leonard’s death, he initiated an action against Karl in which he asserted that Karl had agreed to convey the property to Leonard’s daughter, Nancy, as Leonard wished because she had gave up her job and moved her family into the house with Leonard in order to take care of him. Leonard had executed a will naming Nancy as executrix and sole beneficiary of his estate. When Leonard died after his deposition had been taken but prior to a hearing on the matter, Nancy, as executrix of his estate, was substituted as plaintiff.

The court found that, while the claimed oral trust was void under the statute of frauds, the realty was subject to a resulting trust for the benefit of the estate of Leonard. Notably, the testimony of all parties to the case was in agreement that Leonard intended to transfer only bare legal title to Karl at the time he executed the deed to the realty. Furthermore, Karl executed a document attesting that he held title to the realty subject to a trust for the benefit of Leonard. Moreover, the deed did not purport to create a joint tenancy. Although the appellants sought to establish that the beneficial interest was otherwise effectively disposed of by oral evidence of Leonard’s intent at the time of the execution of the deed that the property would ultimately pass to his children, the court found that the evidence offered to establish such intent was so ambiguous and conflicting as to prevent any determination of Leonard’s intent concerning ultimate disposition of the realty.

Here, the deed executed on April 4, 2007 clearly and unequivocally states that the real estate was conveyed by decedent to herself and her daughter as joint tenants with the right of survivorship. The family agreement expressly states that decedent “has executed a deed granting Diane E. Hoover an interest in her property as an inter vivos gift.” It does not state that the property was conveyed to Hoover as trustee. Moreover, the family agreement clearly and unambiguously states decedent’s wishes regarding the property at her death. The agreement does not state that the real property shall be transferred to decedent’s estate nor that disposition thereof shall be controlled by executrix. Rather, the agreement states that at decedent’s death, Diane Hoover and her spouse agree that “the net proceeds of the sale of the property or the net fair market value (minus taxes and other expenses) on the date of [decedent’s] death is to be distributed or paid according to the last Will and testament of [decedent].” In other words, the family agreement gives the Hoovers the option of selling the property and paying the net proceeds to the beneficiaries under the Will or keeping the property and paying the net fair market value; it does not give that choice to the executrix.

The family agreement contains an integration clause; it expressly states: “This agreement represents the entire agreement between the parties and may be modified only upon unanimous written consent.” Pennsylvania law is well settled that when the parties enter a clear and unambiguous integrated agreement, parol evidence is not admissible to add to or alter its terms. As the Pennsylvania Supreme Court stated in Yocca v. Pittsburgh Steelers Sports, Inc., 578 Pa. 479, 854 A.2d 425 (2004):

Where the parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only evidence of their agreement. All preliminary negotiations, conversations, and verbal agreements are merged in and superseded by the subsequent written contract...and unless fraud, accident or mistake be averred, the writing constitutes the agreement between the parties, and its terms and agreements cannot be added to nor subtracted from by parol evidence.

854 A.2d at 436, quoting Gianni v. Russell & Co., 281 Pa. 320, 126 A. 791, 792 (1924).

The deed and family agreement are clear, and parol evidence is not admissible in this case. Upon decedent’s death, the real property passes to Diane Hoover as the surviving joint tenant. The Hoovers, however, are contractually obligated to distribute or pay the net proceeds of any sale or the net fair market value on the date of decedent’s death according to decedent’s last Will and testament. Since the real property itself is not an asset of the estate, the court will grant Hoover’s motion for judgment on the pleadings and dismiss the executrix’s petition to purchase the real property pursuant to 20 Pa.C.S.A. §3356.

ORDER

And now, this 5th day of September 2014, the court grants the motion for judgment on the pleadings and dismisses the executrix’s petition to purchase the real property. This ruling should not be construed as expressing any opinion regarding the agreement for the sale of the real estate attached to Diane Hoover’s answer to the petition or the availability of any other claims or relief to any of the parties.

      . There has been a signed agreement to sell the property since March. It is attached to Mrs. Hoover’s answer to the estate’s petition. The property is also up for sheriff’s sale on September 9, 2014 due to unpaid real estate taxes.


author: MASSIAH-JACKSON, J.,

text:
    Thach v. Abington Memorial Hospital

      Thomas J. Duffy, Jr. and Jamie L. Zadra, for plaintiff.

      Ralph A. Michetti, Joseph Leonard Hdynoski, III and E. Chandler Hosmer, IIII, for defendant.
    Sept. 9, 2014—
   MASSIAH-JACKSON, J.,

I. FACTUAL BACKGROUND and PROCEDURAL HISTORY

In the Spring of 2012, Ms. Lyah H. Thach, a resident of Philadelphia, was 33 years old and 28 weeks pregnant. Amended complaint, paragraphs 1 and8. OnMarch8,2012, Ms. Thach was admitted to Abington Memorial Hospital for several days where she underwent testing, diagnostic imaging, and various treatments. Upon discharge on March 14, 2012, Abington Memorial Hospital provided weekly home healthcare visits from March 15,2012 through April 17, 2012, in response to the hospital’s diagnosis of “strep viridans infective endocarditis with embolic events and CVA secondary to a history of rheumatoid fever, positive mitral valve thickening, and pregnancy.” Amended complaint, paragraphs 9 through 17.

On April 17, 2012, Ms. Thach was discharged from home healthcare. On April 18, 2012, Ms. Thach presented to Abington Memorial Hospital with worsening weakness and numbness. She became unconscious and began seizing. Amended complaint, paragraphs 12 and 24. Ms. Thach has suffered at least two strokes, permanent and irreversible brain damage, Locked-In Syndrome (eye movement only), is fed through a tube, and requires round-the-clock assistance in all activities of daily living. Amended complaint, paragraphs 12, 24 and 26.

As a result of serious and permanent injuries sustained, plaintiff-Thach initiated this medical malpractice civil action against defendant-Abington Memorial Hospital in March, 2014. On April 10, 2014, the attorney for plaintiff-Thach filed a certificate of merit pursuant to Rule 1042.3(a) and Rule 1042.10 of the Pennsylvania Rules of Civil Procedure. One week later a motion and memorandum to strike the certificate of merit was filed by counsel on behalf of Abington Memorial Hospital (Control no. 14042055). Responsive answers and memorandum in opposition to the motion to strike were filed by plaintiff-Thach. On July 10, 2014, this court denied the defendant’s motion to strike the plaintiff’s certificate of merit and stated in part:

“The certificate of merit filed by the plaintiff on April 10, 2014 is sufficient to support claims of vicarious liability against the defendant.”

On August 11, 2014, the defendant-Hospital filed a motion and memorandum, seeking appellate certification that this court’s July 10,2014 order involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter. 42 Pa. C.S. §702; Rule 1311 of the Pennsylvania Rules of Appellate Procedure. (Control no. 14081092).

Following the filing of plaintiff’s response in opposition, this court coordinated a telephone conference with counsel on September 4, 2014, seeking, inter alia, clarification of paragraphs 12 through 15 of defendant’s motion for appellate certification and pages 4-5 of defendant’s memorandum. Counsel for defendant-Hospital did promptly provide written clarification by identifying the medical professionals for whom defendant asserts separate certificates of merit should be filed where as here, the plaintiff based her claim on the vicarious liability of Abington Memorial Hospital. Defendant’s letter dated September 4, 2014, states in pertinent part:

“Defendants [sic] request certificates of merit for all identified agents listed in the amended complaint: (1) Victoria Myers, M.D.-OB/GYN; (2) Brad Klein, M.D.-Neurology; (3) Richard Borge, M.D.Cardiology; (4) Neely Nelson, M.D.-OB/GYN (Resident at the time); (5) Karan Hadley, RN-Home Health Nurse; (6) Bethany Perry, M.D.-OB/GYN; (7) Richela Stoddard, RN-Home Health Nurse; and (8) Frederick Bartlett, M.D.-OB/GYN. If plaintiff is critical of the care provided by Rochelle Krimker, OT and Mary Ann Pritchett, PT, two individuals that plaintiff deposed during venue discovery to secure venue in Philadelphia, certificates of merit should be filed supporting the allegations alleged against Abington Memorial Hospital for their actions. Defendants also request certificates of merit covering the medical specialties of any unidentified agents the plaintiff deems defendant vicariously liable and for whom the plaintiff’s expert has identified as providing negligent care during Lyah Thach’s admission to Abington Memorial Hospital on March 8, 2012, following her discharge at her home on Van Kirk Street and during her Abington Memorial Hospital admission beginning April 18, 2012. Defendant can provide samples regarding the certificates of merit for the unidentified agents upon request of the court.”

After careful consideration of the issues raised by the parties, the motion of defendant-Hospital to certify for appeal the interlocutory order dated July 10, 2014 is denied.

II. LEGAL DISCUSSION

A. Defendant-Hospital Has Chosen the Wrong Forum to Seek Changes To the Pennsylvania Rules of Civil Procedure

Rule 1042.3(a)(2) of the Pennsylvania Rules of Civil Procedure was adopted by the Supreme Court of Pennsylvania on January 27, 2003. The form of a certificate of merit is set forth in Rule 1042.10, which was initially adopted by the Supreme Court of Pennsylvania on January 27, 2003. The words are clear and without ambiguity.

If this defendant-Hospital or its counsel propose new forms or new wording or other amendments, the proper forum for such recommendations is the Supreme Court’s Civil Procedural Rules Committee. Instead, defendant sets forth in its memorandum dated April 17, 2014, pages 16 through 20, the proposed language for a certificate of merit which does not appear in the Pennsylvania Rules of Civil Procedure and has not been endorsed or adopted by the Supreme Court of Pennsylvania. The Hospital’s bald suggestions are not a proper legal basis to support its motion to strike plaintiff-Thach’s certificate of merit.

It is not the role of this trial court to second-guess what justice Thomas Saylor termed a “subtext” in Pennsylvania’s medical malpractice litigation practice. In his dissenting opinion in Freed v. Geisinger Medical Center, 5 A.3d 212 (Pa. 2010), Justice Saylor commented on the relationship of the Supreme Court to the legislature and the certificate of merit requirement. 5 A.3d at 225-228. Clearly, the Supreme Court’s Civil Procedural Rules Committee provided the language and template for Rule 1042.10 with a wisdom which far out-weigh’s this trial court or the defendant-Hospital.

B. This Trial Court May Not Usurp the Policy Concerns Addressed By the Pennsylvania Supreme Court Since 2003.

Former chief justice Ralph J. Cappy and current chief justice Ronald D. Castille have consistently expressed the expectation that pre-certification of medical malpractice litigation will ensure that the plaintiff in a medical malpractice action has met certain standards to establish a cause of action against the entity against whom a claim is asserted. (Prior to 2003, there were no standards) See, court exhibit “A” collectively attached hereto. In this case it is only the named defendant, Abington Memorial Hospital, which is the entity against whom a claim has been asserted. Defendant-Hospital is alleged to be vicariously liable for actions of several identified and unidentified medical professionals.

Defendant-Hospital contends that because in other cases, certain plaintiffs have filed multiple certificates of merit, then this trial court is bound by those “precedents.” This court does not agree. The words of the Supreme Court at Rule 1042.10 requires that the plaintiff name the defendant against whom the claim has been asserted:

“Certificate of merit as to_ (Name of Defendant)
the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm;”

There is no suggestion expressed or implied in the Pennsylvania Rules of Civil Procedure that a plaintiff must file 36 certificates of merit when there is only one defendant. See, defendant’s memorandum, dated April 17, 2014, page 15.

The policy and rules were adopted as the first step to weed out certain litigation early in the process. Chief justice Cappy provided the background of the Certificate of Merit (“COM”) in Womer v. Hilliker, M.D., 908 A.2d 269 (Pa. 2006) at 266:

“The procedure we provided in the professional liability action rules centers on the filing of a COM. On the one hand, the presence in the record of a COM signals to the parties and the trial court that the plaintiff is willing to attest to the basis of his malpractice claim; that he is in a position to support the allegations he has made in his professional liability action; and that resources will not be wasted if additional pleading and discovery take place. See Pa.R.C.P. No. 1042.4, Pa.R.C.P. No. 1042.5. On the other hand, the absence from the record of a COM signals to the parties and the trial court that none of this is so and that nothing further should transpire in the action, except for the lawsuit’s termination. See Pa.R.C.P. No. 1042.6.” (footnotes omitted).

The Supreme Court commented that Rule 1042.10 (formerly Rule 1042.8) “displays a sample COM that shows precisely what Rule 1042.3 requires.” 908 A.2d at 278:

“Rule 1042.3 is clear and unambiguous in its mandate that in every professional liability action a specific representation about the plaintiffs claim must be filed in the official record in a document called a ‘certificate of merit’ at the time the complaint is filed or within sixty days thereafter. Pa.R.C.P. No. 1042.3(a). Pa.R.C.P. no. 1042.8 provides that ‘the certificate required for filing by Rule 1042.3(a) shall be substantially in the following form....,’ and displays a sample COM that shows precisely what Rule 1042.3 requires.”

During pre-trial discovery, after expert trial witness reports are exchanged, and, after dispositive motions are ruled on, the parties have continuing opportunities to assess the cause of action. Chief justice Castille commented after ten years of these certification rules that the Supreme Court’s Rules of Civil Procedure balanced “new requirements for filing medical malpractice claims with the need for access and fairness in the state court system.” See, court exhibit “A”, June 20, 2014.

C. Notes and Explanatory Comments Have Not Been Adopted By the Supreme Court

Rule 129(e) of the Pennsylvania Rules of Civil Procedure states:

“(e) A note to a rule or an explanatory comment is not a part of the rule but may be used in construing the rule.”

See also, Laudenberger v. Port Authority of Allegheny County, 436 A.2d 147, 151 (Pa. 1981).

Rule 127(b) of the Pennsylvania Rules of Civil Procedure states:

“(b) Every rule shall be construed, if possible, to give effect to all its provisions. When the words of a rule are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.”

In the case at bar defendant-Hospital is faced with Rule 1042.3(a)(2) and Rule 1042.10 which are clear and free from all ambiguity. This defendant’s attempts to add impediments to the litigation only days after the commencement of the civil action and prior to normal pretrial discovery, appear to be a pretext designed to delay Philadelphia Case Management protocols.

III. CONCLUSION

Only the Supreme Court of Pennsylvania may amend or modify its Rules of Civil Procedure or the policy decisions relating to certificates of merit. Defendant-Hospital has failed to articulate how an immediate appeal will materially advance the ultimate termination of this litigation. For all of the reasons set forth above, the motion of Abington Memorial Hospital for appellate certification of the July 10, 2014 order is denied.

ORDER

And Now, this 9th day of September, 2014, after consideration of defendant Abington Memorial Hospital’s motion to amend this court’s order of July 10, 2014, and to certify that the issue involves a controlling question of law as to which there is substantial grounds for difference of opinion and that an immediate appeal from the order may materially advance the ultimate determination of this case, and plaintiff Lyah H. Thach’s Response thereto, it is hereby ordered that the defendant’s motion is denied.


author: HERTZBERG, J.,

text:
    Towne v. Sensible Home Warranty, LLC

      C.P. of Allegheny County,
    No. AR 12-6409; 537 WDA 2014

      Gretchen E. Moore, for plaintiff.

      Kenneth P. McKay, for defendant.
    June 3, 2014
   HERTZBERG, J.,

— Defendant Sensible Home Warranty, LLC (“Sensible”) has appealed to the Superior Court of Pennsylvania from my decision against resolving its dispute with plaintiff William Towne with the American Arbitration Association in Washoe County, Nevada. This opinion provides the reasons for my decision. See Pa. R.A.P. No. 1925(a).

In August of 2010 Mr. Towne paid Sensible to warrant his home located in the City of Pittsburgh against repairs from malfunctioning components. Mr. Towne paid an extra premium amount to obtain a “Limited Roof Leak” warranty. Sensible’s warranty requires the contract holder to notify it when a warranted component malfunctions, with Sensible then providing a contractor to repair or replace the component. In February of 2012 Mr. Towne notified Sensible of a roof leak. Sensible then provided a contractor. However, after receiving the contractor’s repair estimate, Sensible decided the repair was not covered by the warranty and informed Mr. Towne that his claim was rejected.

Mr. Towne sued Sensible via a Magisterial District Judge in July of 2012. The Magisterial District Judge found in favor of Mr. Towne in the amount of $2,850, but Mr. Towne appealed the decision to the Court of Common Pleas. Sensible filed preliminaiy objections to Mr. Towne’s complaint on the basis that the warranty mandated dispute resolution via the American Arbitration Association (“AAA”). The warranty was attached to the preliminary objections and provides: “In the event that a controversy or claim arises that is related to or out of this subjective [sic] agreement, it must be submitted to the AAA in the state of Nevada, Washoe Country [sic] regardless of contract holder residency.” The Honorable Judge R. Stanton Wettick, Jr. found the arbitration clause unconscionable and therefore overruled the preliminary objections. See 4/13/2013 order. A three attorney Court of Common Pleas compulsory arbitration board awarded Mr. Towne $14,393, and Sensible appealed.

Sensible then filed a motion for summary judgment arguing that Mr. Towne had no proof of a breach of the warranty. I denied Sensible’s motion for summary judgment (see 12/18/2013 order), and the dispute was assigned to me for anon-jury trial onMarch 6,2014. Before testimony began, I received oral argument on motions in limine filed by Mr. Towne and Sensible, including a motion to dismiss for lack of jurisdiction filed by Sensible that again argued the dispute should be decided by the AAA. I denied Sensible’s motion to dismiss, presided over the trial and rendered a verdict in favor of Mr. Towne for compensatory damages of $2,889, double damages of $2,889 under the unfair trade practices and consumer protection law (see 73 P.S.§201-1, et. seq.) and attorney fees of $12,000 for a total of $17,778.

My non-jury verdict was dated and filed of record on March 11, 2014. Sensible filed a motion for post-trial relief on March 26, 2014. By order dated March 27, 2014 and filed of record on March 28, 2014, I ordered “that defendant’s motion for post-trial relief is denied and that judgment is entered on my verdict dated March 11,2014.” Sensible, however, filed a praecipe to withdraw motion for post-trial relief also on March 28, 2014. On April 4, 2014 Sensible then filed a notice of appeal to the Superior Court.

Sensible raises a singular issue in its appeal to the Superior Court. Sensible argues that I should have ruled the dispute must be decided by the AAA. See Sensible’s concise statement of errors complained of on appeal under PA. R.A.P. 1925(b).

Before addressing that issue, there is the preliminary matter of whether Sensible’s filing of the praecipe to withdraw post-trial motion effects a forfeiture of its appeal to the Superior Court. Sensible sets forth in the praecipe to withdraw that its reasons for withdrawing the post-trial motion are “...the cost of prosecuting the motion to both parties and the impact upon the disposition of an appeal....” Unarguably there is no right to appeal to the Superior Court from any decision of the Court of Common Pleas following a trial unless a party has filed a motion for post-trial relief. See Krystal Development Corp. v. Rose, 704 A.2d 1102, 1103 (Pa. Super. 1997) and Lenhart v. Cigna Companies, 2003 PA Super 195, 824 A.2d 1193. Since it is clear from its praecipe that Sensible’s intention was to terminate any potential appeal, the motion for post-trial relief was a nullity. Therefore, Sensible forfeited its right to appeal to the Superior Court.1 next address the merits of Sensible’s argument that the AAA should have decided the dispute, but this issue is moot if Sensible forfeited its right to appeal to the Superior Court.

One reason my decision to prohibit resolution of the dispute by the AAA is correct is that small claims court is the appropriate forum for such consumer disputes. The AAA recognizes that disputes arising from consumer transactions “...often involve relatively small amounts of money....,” with judicial small claims procedures the best-suited for their resolution. Consumer Due Process Protocol, American Arbitration Association, 2007 WL 4965566, Principle 5, Reporter’s Comments. The AAA National Consumer Disputes Advisory Committee therefore “concluded that access to small claims tribunals is an important right of consumers which should not be waived by a pre-dispute ADR Agreement.” Id. The Pennsylvania Rules of Civil Procedure establish small claims procedures (see Pa.R.C.P. nos. 1301-1313) for Common Pleas Court compulsory arbitration and de novo appeal to a judge that are inexpensive and efficient, making the entire process “small claims court.” Since the AAA agrees that Mr. Towne should have the right to this small claims court process, my decision not to have the dispute resolved by the AAA was correct.

Another reason my decision to prohibit resolution óf the dispute by the AAA is correct is the arbitration clause in the warranty is unconscionable. Sensible admits that the AAA will not compel a plaintiff to go to Nevada and that the “requirement to go to Nevada is unenforceable.” Transcript, March 6,2014 trial, p. 20. Sensible’s argument is that the remainder of the clause is enforceable and I therefore should have ordered the dispute to be resolved by the AAA in a location other than Nevada. A term of a contract “is unconscionable, and therefore avoidable, when there was a lack of meaningful choice in the acceptance of the challenged provision and the provision unreasonably favors the party asserting it.” Salley v. Option One Mortgage Corp., 592 Pa. 323, 925 A.2d 115 (2007). The warranty Sensible provided Mr. Towne is a standardized contract form offered to consumers of goods and services on a ‘take it or leave it’ basis. See Black’s Law Dictionary (5h ed. 1979). Accordingly, it cannot be disputed that Mr. Towne lacked a meaningful choice. See Denlinger, Inc. v. Dendler, 415 Pa. Super 164 at 174-175, 608 A.2d 1061 at 1066-1067 (1992).

The arbitration clause in Sensible’s warranty also unreasonably favors Sensible. Sensible offered no justification for a clause that discourages customers from initiating meritorious disputes with it (unless they are Nevada residents). The clause deters a customer in Pittsburgh, Pennsylvania by the expenses of travel and lodging and the time commitment for AAA arbitration in Nevada. It appears Sensible’s goal in having this clause in the warranty is to avoid disputes with customers without regard to whether or not they have merit. This is an improper goal. Therefore Sensible must not be permitted to have its choice of a forum, AAA, forced upon a customer with a meritorious dispute who chooses resolution via the court system. Additionally, the Nevada venue and the AAA forum are too closely connected for severance of one from the other. Together they comprise an arbitration clause that unreasonably favors Sensible and therefore is unconscionable.

      . It appears Mr. Towne raised this procedural issue with the Superior Court by the filing on April 28, 2014 of an application to quash appeal. As of the date of this opinion, the Superior Court had not ruled on Mr. Towne’s application.


author: VARRICCHIO, J.,

text:
    Column Realty, LLC v. Zoning Hearing Board of the City of Allentown

      C.P. of Lehigh County,
    No. 2013-C-3859

      William G. Malkames, for appellant.

      David Vaida, for appellee.

      Frances Ann Fruhwirth, for intervenor.
    Aug. 20, 2014 —
   VARRICCHIO, J.,

The Zoning Hearing Board of the City of Allentown (Board) issued a Decision on October 9, 2013, denying Column Realty L.L.C.’s (Column Realty) request for a variance for God’s Grace Adolescent Treatment Center to convert a vacant Lehigh County Corrections Center, located at 324-330 North 6th Street (property), into a drug and alcohol rehabilitation center for teenage males, and to erect a non-illuminated, free-standing sign in front of the facility. On October 24, 2013 Column Realty filed an appeal from the Board’s decision. Column Realty argued for a change from one non-conforming use to another, pursuant to the 1988 court-approved settlement with the City of Allentown. Alternatively, Column Realty argued the Board should have approved the use on the basis of a use or validity variance.

The City of Allentown intervened in Column Realty’s appeal.

All parties briefed their respective positions and argument was heard on this matter.

FACTS

Column Realty owns the property located at 324-330 North 6th Street, in the City of Allentown, Lehigh County, Pennsylvania (the property). The property is about 15,000 square feet of habitable space on three floors. The property is located in an area zoned “Medium High Density Residential” (R-MH). Located within 1,000 feet of the property are the 6th Street Shelter, the Lehigh Valley Mental Health Clinic, and the Salvation Army.

From 1988 to 2011, the property was used as a Lehigh County work release facility housing female residents. This particular use for the property resulted from litigation between Lehigh County, the City of Allentown, and Allentown’s Zoning Hearing Board. After the litigation, a settlement was entered through which Lehigh County would use the property as a work release facility. On December 7, 1988, the court ordered, “The use of said premises as a work release facility shall be temporary. Said use shall terminate four (4) years after date hearafter or thirty (30) days after the completion of the new proposed prison facility at 4th and Linden Streets, Allentown.” On January 9, 1990, the work release facility was allowed to continue, without restriction, beyond the four-year limit. The property was used as a Lehigh County Corrections facility until late 2011.

On May 1, 2012, Column Realty, LLC purchased 324-330 North 6th Street from Lehigh County and the property has remained vacant ever since. Column Realty requested a variance for God’s Grace Adolescent Treatment Center to convert the property into a secured, teen drug and alcohol treatment center consisting of eighty-seven beds for males, ages twelve to eighteen, who would stay for in-patient rehabilitation cycles of twenty-eight day. All meals, recreation, therapy, and counseling would be provided at the facility and no visitors (family or friends) would be permitted during treatment. The proposal also included erecting a freestanding, non-illuminated sign in front of the facility.

On August 26, 2013 the Zoning Hearing Board of the City of Allentown (the Board) held a hearing on Column Realty’s appeal and, by way of a written decision dated October 9, 2013, the Board denied Column Realty both a change from one non-conforming use to another and a use or validity variance. In rendering its decision, the Board explained that the property, which had been vacant for almost two years, was located in an R-MH district and the change, even from a Lehigh County Corrections Facility to a drug and alcohol rehabilitation center, would be detrimental to the neighborhood. Decision of the Board, October 9, 2013. Further, the Board found that Column Realty had not established adequate grounds to grant a variance. Id.

STANDARD OF REVIEW

Where the trial court does not take additional evidence, its scope of review is to determine if the zoning board committed an error of law or an abuse of discretion. Valley View Civic Association v. Zoning Bd. of Adjustment, 462 A.2d 637 (1983). A zoning hearing board abuses its discretion when its essential findings of fact are not supported by substantial evidence. Id. “Substantial evidence” sufficient to support a decision of the zoning hearing board is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Lantos v. Zoning Hearing Bd., 621 A.2d 1208 (1993). The court will not substitute its judgment of that of the zoning board unless the board manifestly abused its discretion. Nascone v. Ross Township Zoning Hearing Bd., 473 A.2d 1141 (1984); Ramondo v. Zoning Hearing Bd., 434 A.2d 204 (1981).

DISCUSSION

The issue raised in this appeal is whether the Board erred in denying Column Realty’s application on the basis of a change from one nonconforming use to another or on the basis of a use or validity variance. Before we get to the merits of the variance we must address the change from one nonconforming use to another under the 1988 court settlement between Lehigh County, the City of Allentown, and the Board, which resulted in the property’s use as a Lehigh County Corrections facility.

For a nonconforming use, Allentown Zoning Ordinance provides:

1329.04 NONCONFORMING USES. A lawfully existing nonconforming use shall meet the following provisions:
C. Discontinuance of Use. If the area occupied by a nonconforming use becomes unoccupied or unused and remains unoccupied or is not used by the nonconforming use during any continuous period of 12 months, the use shall be presumed to be abandoned, unless sufficient evidence is presented to the Zoning Hearing Board to determine said use was not abandoned. Once abandoned, such property or structure shall only be occupied by a use which conforms to this ordinance. This 12 month period shall be extended to 24 months for a lawful commercial nonconforming use in a residential district.

In the present case, the property was unoccupied from late 2011 to present, which exceeds the statutory requirement for abandonment. Moreover, the Board found that Column Realty presented no testimony which indicated the County conveyed the rights to use the property as a penal institution. In argument, the Board did not assert that the nonconforming use had been abandoned, instead, the Board highlighted that the proposed use is different from the pre-existing nonconforming use.

The Commonwealth Court has held, where a legal use exists the right to continue such use is afforded the constitutional protections of due process Smalley v. Zoning Hearing Bd. of Middletown Twp., 834 A.2d 535 (2003). Thus, “a property owner’s right to continue operating a legal nonconforming use on its property is an interest that runs with the land, so long as the use is not abandoned.” Pietropaolo v. Zoning Hearing Bd. of Lower Merion Twp., 979 A.2d 969 (Pa. Cmwlth. 2009). In order to prove abandonment, a challenging party bears the burden to establish a period of discontinuance and an intent to abandon. Action Audio Serv., Inc. v. Zoning Hearing Bd. of Upper Darby Twp., 699 A.2d 1375 (Pa. Cmwlth. 1997). In the present case, by not asserting that the nonconforming use had been abandoned, the Board could not have met the required burden of proving intent to abandon.

Accordingly, we next examine whether the Board erred in denying Column Realty’s application on the basis of a change from one nonconforming use to another. Column Realty asserts that the proposed use is no more detrimental to the neighborhood and surroundings than the use which it replaces, a work release facility. However, the Board points out that Column Realty did not meet the requirements under the zoning ordinance for a change from one nonconforming use to another and, upon review; the Board denied Column Realty’s application by a decision dated October 9, 2013.

The relevant ordinance provides:

1329.04 NONCONFORMING USES. A lawfully existing nonconforming use shall meet the following provisions:
B. Change of Nonconforming Use. A nonconforming use all or partially conducted in a structure(s) may be changed to another nonconforming use only upon determination by the Zoning Hearing Board as a special exception that the proposed new use will be no more detrimental to its neighborhood and surroundings than the use it is to replace (except as provided in “2.” below). In determining such relative detriment, the Board shall review any written report of the Zoning Officer.
1. The Board may consider the following factors, among others: traffic generated; traffic safety; nuisance characteristics, such as emission of noise, dust, odors and smoke; creation of vibrations and fire hazards; waste generation; storage characteristics; public health and safety hazards; and the hours and manner of operation.
2. The Zoning Officer may issue a permit for a change from one nonconforming establishment to another nonconforming establishment, without requiring approval by the Zoning Hearing Board, provided that:
a) the same general type of use is involved (such as from one retail store to another retail store, or from one personal service business to another personal service business);
b) the operator of the new establishment agrees in writing as a condition of the permit to abide by any applicable conditions that were established for the previous use of the property;
c) the new use involves similar or less intensive characteristics compared to the previous use, such as hours and manner of operation, types of merchandise or service, and waste generation; and
d) the new use does not involve the sale of alcohol unless the previous use also involved the sale of alcohol in a similar manner.

The Board highlights that one could argue the use to be replaced is that of a vacant building. However, taking the position that the nonconforming use to be replaced is that of a Lehigh County Corrections Facility, the Board determined that the new nonconforming use would be more detrimental to the neighborhood.

The Board’s Decision included the following Findings of Fact:

13. The neighborhood in which the subject premises is located is residential in character. It is located in a neighborhood with varied housing units consisting of single family homes to an 8 unit apartment building located across the street from the property.
24. Mr. Peter A. Terry, a licensed professional civil engineer specializing in traffic and transportation engineering, testified that because the patients being treated at the subject facility would not have visitors nor leave the facility during the course of their treatment, that the average daily trips experienced by the facility in the coming and going of traffic to it would be significantly less than that experienced when the facility was utilized by the County of Lehigh as a work release facility. As a work release facility, Mr. Terry estimated the average daily trips to be 73 and as a treatment center to be 34.
25. No testimony was presented to indicate that the Applicant had made any effort to introduce a use to the structure which would be in compliance with the provisions of the Zoning Ordinance applicable to this Zoning District (R-MH).
27. Several objectors testified that the neighborhood is to some degree in transition and stabilizing after many years of problems with crime, density, traffic and parking concerns. The reintroduction of this use at this time would adversely affect the residents of this largely residential neighborhood many of who are owner occupants of the houses in which they , reside.

The Board explained that the new use would be more detrimental to the neighborhood because the property is located in a highly urbanized section of Allentown fronting North 6th Street, which is heavily traveled and most of the properties have little or no off-street parking. Thus, the Board denied Column Realty’s application for a change from one nonconforming use to another pursuant to Zoning Ordinance § 1329.04, which permits such a change, “Only upon determination by the Zoning Hearing Board as a special exception that the proposed new use will be no more detrimental to its neighborhood and surroundings than the use it is to replace.”

Finally, Column Realty asserted a claim for either a use or validity variance to use the property as proposed. Zoning Ordinance § 1307.03 governs both types of variances and provides:

Variances and Special Exceptions. The Zoning Hearing Board shall serve the following functions:
A. Variances
1. The Board shall hear requests for variances where it is alleged that the provisions of the Zoning Ordinance inflict unnecessary hardship upon the applicant. The Board may by rule prescribe the form of application and may require preliminary application to the Zoning Officer. The Board may grant a variance, provided that all the following findings are made where relevant in a given case:
a) That there are unique physical circumstances or conditions, including irregularity, narrowness or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property, and that the unnecessary hardship is due to such conditions and not the circumstances or conditions generally created by the provisions of the Zoning Ordinance in the neighborhood or district in which the property is located;
b) That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the Zoning Ordinance and that the authorization of a variance is therefore necessary to enable the reasonable use of the property;
c) That such unnecessary hardship has not been created by the appellant;
d) That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare; and
e) That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.

Column Realty relies upon the Commonwealth Court’s holding in Laurel Point Associates v. Susquehanna Township Zoning Hearing Board:

A validity variance “is based on the theory that an otherwise valid ordinance is confiscatory when applied to a particular tract of land, in that it deprives the owner of any reasonable use of his property.” A & D, Inc. v. Zoning Hearing Board, 379 A.2d 654, 656 (1977). In such a case, the issuance of a variance is necessary to permit a reasonable use of the land and, thus, prevent an unconstitutional taking of the applicant’s property. Shohola Falls Trails End Property Owners Association, Inc. v. Zoning Hearing Board, 679 A.2d 1335 (Pa. Cmwlth. 1996), appeal denied, 695 A.2d 788 (1997).

The court goes on to explain:

This court has held that, to obtain a validity variance, the applicant must establish that: (1) the effect of the regulations complained of is unique to the applicant’s property and not merely a difficulty common to other lands in the neighborhood; and (2) the regulation is confiscatory in that it deprives the owner of the use of the property. Chrin Brothers, Inc. v. Williams Township Zoning Hearing Board, 815 A.2d 1179 (Pa. Cmwlth. 2003); Shohola Falls; Hersh v. Zoning Hearing Board, 493 A.2d 807 (1985). “A validity variance differs from a ‘normal’ variance in that the normal variance is granted to adjust the zoning regulation to the particular property.” Shohola Falls at 1341.

In the present case, the Board determined there was no showing that there were any unique physical circumstances or conditions related either to the building or the lot. Moreover, the Board determined that no such physical circumstances or conditions foreclose the possibility that the property could be developed in strict conformity with the provisions of the zoning ordinance. In fact, § 1313.01 provides a list of residential uses permitted as a matter of right in the R-MH Zoning District.

The only testimony on this point came from Mickey Thompson, chief operating officer of Column Realty, who stated that the property had been continuously marketed since Column Realty’s acquisition in May 2012. Notes of Testimony, August 26, 2013, p. 86. Yet, no additional testimony was presented that this property, due to the lot, the building, or some other physical condition, cannot be used in compliance with uses permitted in this Zoning District.

Because we find that the Board did not err in denying the application for a change from one nonconforming use to another or in denying a variance, we affirm the Board’s decision and deny Column Realty’s request to construct a drug and alcohol treatment center on the property.

ORDER

And now, this 20th day of August, 2014, upon consideration of the October 24, 2013 Appeal by Column Realty L.L.C. of the October 9, 2013 Decision of the Zoning Hearing Board of the City of Allentown, the response thereto filed March 11, 2014 by Appellee and Intervenor, and after argument thereon;

It is hereby ordered that, for the reasons set forth in the accompanying opinion, said appeal is denied.

      . Docket number 2013-C-3859.

      . Docket number 1988-C-1543.


author: MINORA, J.,

text:
    Custom Designs & Manufacturing Co. Inc. v. Atlantic States Insurance Co.

      C.P. of Lackawanna County,
    No. 2006-CV-2790

      Michael R. Mey, for plaintiff.

      John D. Brinkman, for defendant.
    Aug. 27, 2014
   MINORA, J.,

— Before the court are defendant Atlantic States Insurance Co. (“defendant” or “Atlantic States”)’s preliminary objections to plaintiffs complaint. For the reasons discussed below, defendant’s preliminary objections are overruled.

FACTUAL AND PROCEDURAL SUMMARY

This action was initially commenced by Plaintiffs’ filing of a Praecipe for Writ of Summons on June 6, 2006.

Plaintiff’s factory was completely lost due to a fire in November 2002. At the time of the loss, plaintiff carried an insurance policy with defendant Atlantic States, a subsidiary of Donegal Insurance Companies (“Donegal”). The insurance policy maintained plaintiff as the only named insured. First Union National Bank, Wachovia Bank, N.A.’s predecessor, was named as a loss payee. At the time of plaintiffs’ loss, Wachovia Bank, N. A. owned the factory property of plaintiff via the Alexander J. Tarapchak Trust Agreement. In addition to 2006-CV-2790, plaintiff filed a separate lawsuit regarding this fire under docket number 2003-CV-3260, where Wachovia Bank, N.A. and Donegal were named defendants. Simultaneous with filing the complaint in 2003-CV-3260, plaintiff made a claim for the maximum of insurance coverage as well as a claim for additional leasehold improvements, betterments, and fixtures within the damaged property. Wachovia Bank, N.A. also made a claim with Donegal for the loss of the building. See memorandum and order, 2003-CV-3260 at 1-2 (Nov. 29, 2011).

Plaintiff’s Business Interruption Loss from the Fire

Defendant Atlantic States initially calculated plaintiff’s business interruption loss from the fire at $1,294,098. Payment was made to plaintiff for this amount. Both parties appointed appraisers to recalculate plaintiff’s business interruption loss. On November 22, 2010, a neutral umpire determined that plaintiff was entitled to an award of $2,190,278.00. This award differed from defendant Atlantic State’s experts’ initial calculation of business interruption loss by $896,180.00.

Under docket number 2006-CV-2790, plaintiff thereafter filed a petition for award of prejudgment interest on the appraisal award rendered November 22, 2010. By letter dated November 29, 2010, plaintiff demanded that Atlantic States pay prejudgment interest on the $896,180.00 due and owing. Defendant refused to pay prejudgment interest on the amount. However, defendant did pay the $896,180.00 difference to the plaintiff on or about December 13, 2010. On October 21, 2011, this honorable court entered a memorandum and order denying and dismissing plaintiff’s petition for award af pre-judgment interest.

On December 23, 2013, plaintiff filed a complaint in 2006-CV-2760 sounding in bad faith and breach of contract. For the bad faith claim, plaintiff alleges that (1) in adjusting, evaluating and apportioning the payments to plaintiff, defendant Atlantic States failed to investigate plaintiffs claims, promptly acknowledge them or offer payment; (2) that defendant failed to make a payment of interest to plaintiff; (3) that defendant acted frivolously in breach of the fiduciary duties to plaintiff; and (4) that defendant caused plaintiffs business severe and permanent financial harm. See plaintiff’s complaint, 2006-CV-2790 at paragraphs 9-11 (Dec. 23,2013). For breach of contract, plaintiff alleges that defendants deliberately, intentionally, and purposefully refused to pay the coverage under the policy sold to plaintiffs, even though plaintiffs supplied defendants with all of the information necessary to evaluate those claims. See plaintiff’s complaint, 2006-CV-2790 at 16.

On January 7, 2014, Atlantic States filed preliminaiy objections pursuant to Pa.R.C.P. 1028(a)(2) in the nature of a motion to strike, asserting that plaintiff’s complaint filed December 23, 2013, was an amended complaint filed in violation of Pa.R.C.P. 1033 (emphasis added). Defendant also filed a memorandum in support of the preliminary objections. Defendant claims that plaintiff violated Pa.R.C.P. 1033 by filing this amended complaint without seeking consent of defendant or leave of court. See defendant’s preliminary objections to plaintiff’s complaint at paragraph 2 (Jan. 7, 2014). However, defendant does not specify when plaintiff’s original complaint was allegedly filed. Moreover, defendant seems to suggest that plaintiffs December 2013 complaint is an amended complaint stemming from other proceedings regarding the fire. Defendant asserts in its preliminaiy objections that there have been three proceedings in the matter and that the amended complaint seeks new claims for coverage and bad faith. See defendant’s preliminary objections at paragraphs 2, 9.

Plaintiff’s answer to the preliminary objections and brief in opposition thereto were filed April 2, 2014. Plaintiff argues in response to defendant’s preliminary objections that the complaint filed December 23, 2013 is not an amended complaint. The matter is now ripe for disposition.

LEGAL STANDARD

Preliminary objections may be filed by any party to any pleading of record, including both complaints and other preliminary objections. Pa.R.C.P. 1017; Pa.R.C.P. 1028; Daniel v. City of Philadelphia, 2013 WL 4502724 (Ct. Com. Pl. Aug. 2, 2013) (citing Pa.R.C.P. 1017, Pa.R.C.P. 1028). Preliminary objections may be filed for failure of a pleading to conform to law or rule of court. Pa.R.C.P. 1028(a)(2).

Pa.R.C.P. 1033: Amended Pleadings

Leave to file an amended pleading must be done by either consent of the adverse party or by obtaining leave of court. Pa.R.C.P. 1033. In Pennsylvania, the trial court is vested with broad discretion to determine whether or not to allow an amendment to the pleadings. Robinson v. Madden Law Firm, PC., 2010 WL 8354851 (Trial Order) (Ct. Com. Pl. (Dec. 1, 2010) (internal citations omitted).

Pa.R.C.P. 1017: Pleadings Allowed

According to Pa.R.C.P. 1017, except as provided by Rule 1041.1, the pleadings in an action are limited to:

(1) a complaint and an answer thereto,
(2) a reply if the answer contains new matter, a counterclaim or a cross-claim,
(3) a counter-reply if the reply to a counterclaim or cross-claim contains new matter,
(4) a preliminary objection and a response thereto.

See CDI-Infrastructure, LLC v. Navtech, Inc., 2013 WL 1845859 (Trial Order) (Ct. Com. Pl.) (Apr. 17, 2013); Daniel v. City of Philadelphia, 2013 WL 4502724 (trial order) (Ct. Com. Pl., Aug. 2, 2013). In its definition of pleading, Pa.R.C.P. 1017 does not include a petition, an answer to a petition, or a motion (emphasis added). See CDI-Infrastructure, LLC, 2013 WL 1845859, supra. Nor does the definition of pleading include a writ of summons. See Pa.R.C.P. 1017.

LEGAL ANALYSIS

Whether Defendant May File Preliminary Objections to the December 2013 Complaint

Since plaintiff filed a complaint on December 23,2013, defendant may file preliminary objections to this pleading. See Pa.R.C.P. 1028(a)(2); Pa.R.C.P. 1017; Daniel, 2013 WL 4502724, supra. In response to defendant’s inquiry that the December 23, 2013 complaint was an amended pleading, we hold that this filing was not an amended pleading, but rather, plaintiffs original complaint.

Plaintiff’s Complaint filed December 2013 is the Original Complaint in 2006-CV-2760.

Plaintiff did not file a complaint in 2006-CV-2790 prior to the filing the December 23, 2013 complaint. Plaintiff initiated this action by filing writ of summons. Plaintiff also filed a petition for pre-judgment interest at that time.

A writ of summons is not a complaint. See e.g. Crane v. Karagiannis, 2004 WL 5281021 (Pa. Com. Pl. Feb, 23, 2004); Salomoni v. Philllips, 2003 WL 23314556 (Pa. Com. Pl. June 09, 2003). Nor is a petition for prejudgment interest a complaint. As noted above, a writ of summons and a petition for pre-judgment interest are not pleadings. See Pa.R.C.P. 1017. Therefore, since neither the writ of summons nor the petition for pre-judgment interest are complaints, or pleadings, the original complaint filed by plaintiff, in 2006-CV-2760, plaintiff’s December 23, 2013 Complaint, was not an amended pleading filed in violation of Pa.R.C.P. 1033. Defendant improperly refers to the December 23,2013 filing as an amended complaint, defendant’s preliminary objection pursuant to Pa.R.C.P. 1033 is overruled.

Plaintiff’s Complaint from December 2013 is Not an Amended Complaint Extending From Any Other Litigation in this Matter

As we noted above, defendant, in their preliminary objections, also seems to suggest that the December 2013 complaint in 2006-CV-2790 may be an amended pleading improperly extending from one of the other lawsuits filed regarding the fire at plaintiff’s factory. This argument is without merit. The December 2013 complaint in 2006-CV-2790 is not an amended complaint from the other actions regarding the fire. A complaint is the initial pleading on the part of a plaintiff in a civil action. See “complaint,” Black’s Law Dictionary, 3rd Edition at 123 (2006). Therefore a complaint filed in 2006-CV-2790 cannot be considered an amended complaint from another case related to the fire. Moreover, plaintiff’s complaint filed in 2006-CV-2790 does not involve a prior lawsuit. See Kindig v. Smith, 38 Pa. D. & C.3d 137, 1984 WL 2592 (Pa. Com. Pl. August 14, 1984).

In 2003-CV-3260, another case filed in Lackawanna County regarding the fire, plaintiff initiated a law suit against Donegal and Wachovia Bank, N.A., requesting the balance of the insurance proceeds to be released. See 2003-CV-3260 memorandum and order (Nov. 29, 2011). In another case related to the fire before the Orphan’s Court in Lackawanna County, the beneficiaries of Plaintiff’s trust raised the issue of the adequacy of insurance coverage on the building which housed Custom Designs and Manufacturing, Inc. We noted in November 2011 that the Orphan’s Court case did not involve the same causes of action in 2003-CV-3260.

Nor does plaintiff’s complaint in 2006-CV-2790 involve the same causes of action as the issues in 2003-CV-3260 and the Orphan’s Court case. The complaint in 2006-CV-2790 does not ask whether plaintiff was required to maintain insurance coverage on the business property like in 2003-CV-3260. Nor does it seek to know the adequacy of the insurance coverage, like in the Orphan’s Court case. See this opinion, at notes 2-3. Instead, the complaint in 2006-CV-2790 involves whether Atlantic States, a different defendant, breached its fiduciary duties to plaintiff when investigating and paying plaintiff’s claims. See this opinion at p.3. Plaintiff’s complaint in 2006-CV-2790 does not seek to amend a complaint from a prior lawsuit. See Kindig, 38 Pa. D. & C.3d 137, supra.

Plaintiff Has Not Filed an Amended Complaint In Violation of Pa.R.C.P. 1033

Plaintiff’s complaint, filed December 23, 2013 is the original complaint filed under 2006-CV-2790. Plaintiffs have not violated Pa.R.C.P. 1033 by filing an amended complaint without seeking permission or leave of court. Defendant’s preliminary objections are overruled. An appropriate order follows.

ORDER

And now, this 27th day of August 2014, upon consideration of defendant’s preliminary objections to plaintiff’s complaint and brief in support thereof, and plaintiff’s answer and brief in opposition to the preliminary objections, the defendant’s preliminary objections to plaintiff’s complaint are overruled.

      . See Custom Designs & Manufacturing Co., Inc. v. Donegal Insurance Companies and Wachovia Bank, N.A., defendants, Carolee Tarapchak, Intervenor, memorandum and order, 2003-CV-3260 (Minora, J.) (Nov. 29, 2011).

      . The parties to the Orphan Court’s case included Wachovia as Trustee of Settlor Alexander Tarapchak II, the decedent’s spouse and primary beneficiary, Carolee Tarapchak (the intervenor in 2003-CV-3260) and the decedent’s three children as remaindermen. See Memorandum and order, 2003-CV-3260 at 8 (Minora, J.) (Nov. 29, 2011).

      . In 2003-CV-3260, Wachovia filed preliminary objections in 2003-CV-3260 arguing that this court did not have jurisdiction in the matter because of a parallel action pending in Monroe County. See 2003-CV-3260, memorandum and order at 3 (Nov. 29, 2011). This court denied the preliminary objections and also denied and dismissed Wachovia’s second motion for summary judgment, which was based on Wachovia’s claim that the disputed issues of material fact in 2003-CV-3260 had been decided in another proceeding. We held that Wachovia failed to show res judicata or collateral estoppel, because although whether Plaintiff was required to maintain insurance was decided in a portion of the other proceedings before Judge Harhut, resolution of that issue was not essential to any causes of action before Judge Harhut. Therefore there existed neither identity of the thing sued upon nor identity of the cause of action in 2003-CV-3260. See memorandum and order 2003-CV-3260 (Minora, J.) (Nov. 29, 2011).