author: MOTTO, J.,

text:
    Bank of America v. Ierino.

      Jeremy J. Kobeski, for plaintiff.

      L. Dawn Haber, for defendant.
    December 7, 2012
   MOTTO, J.,

Before the court for disposition is the plaintiff’s motion for summary judgment and the defendants’ cross motion for summary judgment. The plaintiff, Bank of America, N.A. as successor by merger to BAG Home Loans Servicing, L.P., f/k/a Countrywide Home Loans servicing, L.P., is the holder of a mortgage and promissory note executed by the defendants, Frank and Patricia Ierino, upon property located at 28 First Street, Ellwood City, Pennsylvania. The plaintiff alleges that the defendants have failed to make payments due on August 1, 2008, and each month thereafter, on the principal and interest of the mortgage. Due to the failure to make said payments, the plaintiff maintains that the mortgage is now in default, and seeks an in rem judgment against the defendants to foreclose the mortgage on the property. The defendants argue that the plaintiff’s Homeowner’s Emergency Mortgage Act, 35 P.S. §§ 1680.401(c) (hereinafter, Act 91) notice was deficient insomuch as that it failed to inform the defendants that they had the opportunity to have a face-to-face meeting with the plaintiff to attempt to resolve the default. The defendants maintain that since the Act 91 notice was deficient, the plaintiff’s suit must be dismissed for lack of subject matter jurisdiction.

On September 21, 2006, the defendants executed a mortgage and promissory note in the principal sum of $247,500.00, being payable in equal, consecutive, monthly installments of principal and interest of $2,027.53 on the property at 28 First Street. On or about May 30, 2008, the plaintiff sent a loan modification solicitation letter to the defendants. According to the terms of the letter, the plaintiff informed the defendants that it may be able to lower their monthly payments to approximately $1,616.94. The plaintiffs maintain that the defendants were advised that their payments would be approximately $1,616.94, but that amount could not be guaranteed, due to the fact that plaintiff had to perform an escrow analysis to ensure that all amounts for taxed and insurance would be covered upon modification of the loan. The defendants executed the loan modification and returned it to the plaintiff.

As a result of the loan modification, the principal and interest payment of the defendants’ loan was modified to $1,194.69, with a new maturity date of June 1, 2048. Plaintiff also found that it was necessary to include a monthly escrow payment of $513.54 to cover the taxes and insurance costs due on the defendants’ property. Defendants’ new monthly payment, including escrow, became $1,708.23. This amount was $91.29 over the approximated payment which was solicited to the defendants within the loan modification letter, but still $319.30 less than the amount of their original monthly mortgage payment.

The last payment made by the defendants on their mortgage was on or around August 1, 2008, in the amount of $1,616.94. Plaintiff applied this payment to defendants’ account for the delinquent July 1, 2008 payment, but maintains that the account remained due and owing for the August 1,2008 payment. On November 3, 2008, and January 9, 2009, plaintiff mailed defendants Act 91 notices that the account had entered default and that plaintiff intended to foreclose on the mortgage. Plaintiff filed the instant foreclosure action on May 18, 2009.

The defendants argue that the plaintiff’s Act 91 notice was deficient because it failed to inform the defendants that they had the opportunity to have a face-to-face meeting with the plaintiff to attempt to resolve the default. The defendants maintain that since notice requirements of Act 91 are jurisdictional, their deficient notice deprives this court of jurisdiction to hear the plaintiff’s foreclosure action. The defendants argue that since there are no other genuine issues of material fact, the plaintiff’s case must be dismissed as a matter of law for want of jurisdiction.

The plaintiff argues that since the defendants applied for mortgage assistance with the Pennsylvania Housing Finance agency and were denied, the defendants are estopped from asserting that the Act 91 notice was deficient. The plaintiff maintains that because the defendants availed themselves of the opportunity for mortgage assistance, the purpose of the Act 91 notice has been satisfied.

Any party may move for summary judgment in whole or in part as a matter of law whenever there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery. Pa.R.C.P. 1035.2(1). The moving party bears the burden of demonstrating that there are no genuine issues of material fact. Stimmler v. Chestnut Hill Hosp., 602 Pa. 539, 554, 981 A.2d 145, 154 (2009). A court may grant summary judgment only when the right to such judgment is clear and free from doubt. Sevastv. Kakouras, 591 Pa. 44, 53, 915 A.2d 1147, 1153 (Pa. 2007).

The notice requirements of Act 91 are jurisdictional, and, where applicable, a failure to comply therewith will deprive a court of jurisdiction to act. Philadelphia Housing Authority v. Barbour, 592 A.2d 47, 48 (Pa.Super. 1991). Since the allegations of a defective Act 91 notice in the defendants’ cross motion raises an issue of jurisdiction, the court will address it before considering any of the other issues raised by the parties.

Under the notice requirements of Act 91 of 1983, a delinquent mortgagor has an opportunity for a face-to-face meeting with the mortgagee or a consumer credit agency to attempt to resolve the delinquency or default. 35 P.S. § 1680.403c(b)(l) (1983). In June of 2008, the notice requirements of Act 91 were amended, deleting the language that a mortgagor has an opportunity to meet with the mortgagee face-to-face. 35 P.S. § 1680.403c (2008) (July 8, P.L. 841 No. 60. § 2(effective in 60 days)). The amendment became effective on September 8, 2008. Id. The defendants argue that since their final payment was made in July 2008, the pre-amended version of the statute should be the applicable law in this matter.

The plaintiff does not dispute that the pre-amended version of Act 91 should be the applicable law in this matter. The plaintiff argues, however, that although it failed to comply with the requirements of Act 91 of 1983, the defendants have nevertheless availed themselves of the opportunity to apply for assistance with the Homeowners’ Emergency Mortgage Assistance Program (hereinafter, HEMAP). The defendants admit that they did in fact apply for assistance with HEMAP and were rejected. The plaintiff maintains that since the defendants had applied for assistance, the Act 91 notice had served its purpose, they are estopped from asserting that the plaintiff did not comply with the notice provisions of Act 91 of 1983.

In support of its contention, the plaintiff cites Wells Fargo Bank, N.A. ex rel. Certificate Holders of Asset Backed Pass-Through Certificates Series 2004-MCWI v. Monroe, 966 A.2d 1140 (Pa. Super. 2009). In Monroe, the mortgagors argued that the Act 91 notice sent by the mortgagee was deficient because it failed to identify the mortgagee, and therefore did not have the address of the note-holder where they could have sent items pursuant to the Real Estate Settlement Act or a Truth-in-Lending request. Id. at 1143. The mortgagors also asserted that the Act 91 notice did not provide for a place of cure within the county where the property was located. Id. Upon appeal, the mortgagors maintained that the trial court improperly required them to show that they were prejudiced by the deficient notice, asserting that since the notice was improper, prejudice should be presumed. Id. The Superior Court rejected this contention, holding that because the mortgagors availed themselves of the opportunity to pursue assistance with HEMAP, they were not prejudiced by a defective Act 91 notice. Id.

In support of their position, the defendants cite Beneficial Consumer Disc. Co. v. Vukmam, 37 A.3d 596 (Pa.Super. 2012). In Vukmam, the trial court set aside a judgment and sheriff’s sale after determining that the mortgagee’s Act 91 notice sent to the mortgagor was deficient and therefore the court lacked subject matter jurisdiction. Upon the mortgagee’s appeal, the mortgagor maintained its position that the mortgagee’s Act 91 notice was deficient because, as here, it failed to comply with the notice requirement of informing the mortgagor that she had the opportunity with a face-to-face meeting with the mortgagee. Id. at 601. The mortgagee, relying on the Superior Court’s decision in Monroe, supra, argued that the mortgagor must prove that she was prejudiced by the technical defect; otherwise, the technical defect would not deprive the court of jurisdiction. Id. at 602.

The Vukmam court held that at the time relevant to the matter, § 1680.403c of Act 91 clearly and unambiguously provided that before a mortgagee could commence a foreclosure action, the mortgagee was required to give a mortgagor notice as described in § 1680.403c, including the provision of a face-to-face meeting with the mortgagee. Id. The Superior Court noted that the legislature mandated that an Act 91 notice include all of the information outlined by the notice provision of § 1680.403c. Id. The Superior Court stated that the facts of Monroe, supra, were sufficiently distinguishable from the case at bar to have no impact upon its decision, essentially because Monroe did not implicate as a deficiency Act 91’s explicit requirement that the notice inform that the mortgagor can meet face-to-face with the mortgagee. Id.

In the case sub judice, the facts are distinguishable from the facts of Monroe, supra, and analogous to the facts of Vukmam, supra. Therefore, this court finds Vukmam to be controlling. The Act 91 notice was clearly deficient because it only informed the defendants that they had the opportunity to meet face-to-face with a consumer credit agency, and did not inform of the right to a face-to-face meeting with the plaintiff mortgagee itself. The fact that the defendants applied for assistance with HEMAP does not estop them from being able to assert that the Act 91 notice was deficient. Vukmam, supra. Vukmam clearly holds that failure to strictly comply with Act 91 by providing notice of the right to a face-to-face meeting with the mortgagee deprives the court of subject matter jurisdiction; that the defect is non-waivable, and that a showing of prejudice by defendants is not required. Since the plaintiff has failed to comply with the notice requirements of § 1680.403c of Act 91 of 1983, this court finds that it does not have subject matter jurisdiction to hear the plaintiff’s case. Philadelphia Housing Authority v. Barbour, supra, at 48.

Given that subject matter jurisdiction is lacking, the court does not reach the merits of any of the other issues raised by either of the parties in their respective motions. Accordingly, the plaintiff’s motion for summary judgment must be denied, the defendants’ cross motion for summary judgment must be granted, and the plaintiff’s suit is dismissed, for want of jurisdiction.

ORDER OF COURT

And now, December 7, 2012, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered, adjudged, and decreed:

1. Plaintiff’s motion for summary judgment is denied.

2. Defendants’ cross motion for summary judgment is granted.

3. The plaintiff’s complaint in mortgage foreclosure is dismissed, without prejudice.


source: Caselaw Access Project

author: COX, J.,

license: Public Domain

text:
    Wassel v. Heitzenrater

      Richard W Kelly, Jr., for plaintiff.

      James P. Sommers, Gene G. Dimeo, and George F. Young, III for defendant(s).
    December 10, 2012
   COX, J.,

Before the court for disposition are the preliminary objections to complaint filed on behalf of the defendant PPR Realty, t/d/b/a Prudential Preferred Realty (hereinafter “defendant PPR Realty”), which argues that Count V of the plaintiffs’ complaint fails to aver with sufficient specificity the deceptive acts or practices performed by defendant PPR Realty. In addition, defendant PPR Realty asserts that the plaintiffs’ negligence claim in Count III is legally insufficient as paragraphs 13,25 and 26 of the agreement of sale bars that type of recovery.

In March of 2005, the plaintiffs James J. Wassel and Gail L. Wassel employed defendant PPR Realty and its employee Randy Householder as buyers’ agent to aid them in purchasing a home. To solidify this relationship, the parties entered into a business relationship agreement. Defendant PPR Realty recommended that the plaintiffs view the interior and exterior of a residence at 1595 North Tower Road, Fombell, Pennsylvania. The plaintiffs viewed the property. On March 20, 2005, Eric M. Heitzenrater and Bonnie M. Heitzenrater (hereinafter “defendants Heitzenraters”), the individuals selling the property, completed a seller property disclosure statement that was provided to the plaintiffs pursuant to the Pennsylvania Real Estate Disclosure Act. The seller property disclosure statement informed the plaintiffs that there was water leakage in the basement, garage or crawl space and attempts to repair the issues were performed by Mathews Wall Repair by installing a French drain with a sump pump. That document also informed the plaintiffs that there was movement, shifting, deterioration or other problems with the walls, foundation or other structural components, which were repairedby Mathews Wall Repair. The seller property disclosure statement stated that the septic system leaked. After reviewing that statement, the plaintiffs offered to purchase the property from defendants Heitzenraters for the price of $137,000.00. At the same time, the plaintiffs discussed the septic system leaks with their mortgage lender, who informed them that the septic system would need to be repaired or replaced prior to receiving the mortgage. The plaintiffs informed defendants Heitzenraters, defendant PPR Realty and defendant Everest Consulting Group, L.P., t/d/b/a Northwood Realty Services (hereinafter “defendant Northwood Realty”) that the septic system would have to be repaired or replaced before the transaction could proceed. In response, defendants Heitzenraters rejected the Plaintiffs’ offer to purchase the property for $137,000.00 and made a counteroffer to the plaintiffs for the purchase price of $140,000.00 and they would repair the septic system. The plaintiffs agreed to that price and the parties entered into a standard agreement of the sale of real estate. On March 22,2005, defendants Heitzenraters had repairs performed on the septic system. The plaintiffs took possession of the property on May 6, 2005, and defendants Heitzenraters provided the plaintiffs with a General Warranty Deed in return for the payment of $140,000.00. Additionally, defendants Heitzenraters, defendant PPR Realty and defendant Northwood Realty represented that the septic system was repaired and functioning fully.

Shortly after taking possession of the property, the plaintiffs noticed several defects, which included waste water draining into the basement after members of the household showered, rain water and grey water flowing into the basement and sinkholes developing near the new septic tank. In response, the plaintiffs had to regularly drain, dry, clean and sanitize the basement from rain water and sewage. Additionally, the sinkholes grew larger and deeper. The plaintiffs engaged an excavator to dig around the septic tank to determine the source of the problems and it was discovered that the new septic tank was connected to the old septic tank and the pipes between the two were leaking. Moreover, the old septic tank’s inlet and outlet pipes were cracked and deteriorated, the baffles inside the old septic tank had broken off and the old septic tank was cracked. The plaintiffs also noticed that certain grey water flowed through a pipe that bypassed the septic system and ran underneath the road. That pipe caused the grey water to be discharged on a neighbor’s property.

As a result, the plaintiffs filed suit against defendant PPR Realty, defendants Heitzenraters and defendant North wood Realty. In Counts III and V of the complaint, the plaintiffs assert claims of negligence and unfair trade practices against defendant PPR Realty, who responded by filing these preliminary objections. The complaint avers that defendant PPR Realty was negligent in failing to advise the plaintiffs to retain their own sewer and septic expert and failing to advise the plaintiffs to have the septic and drainage system inspected. The plaintiffs also allege that defendant PPR Realty performed deceptive acts in violation of 73 P.S. §201-2(4)(xxi) by failing to disclose matters concerning water penetration, the defective septic system, the failure to properly repair the septic system and the discharge of grey water onto the neighbor’s property. Defendant PPR Realty contends the plaintiffs’ complaint fails to aver with sufficient specificity the deceptive acts or practices performed by defendant PPR Realty and the plaintiffs’ negligence claim in Count III is legally insufficient as paragraphs 13, 25 and 26 of the agreement between the parties bar that type of recovery.

The specificity of a pleading is governed by Pa.R.C.P. No. 1019, which states, “(a) The material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Pennsylvania is a fact-pleading jurisdiction, which requires the plaintiff to provide the defendant with notice of what the plaintiff’s claim is and the grounds for the claim. Unified Sportsmen of Pennsylvania v. Pennsylvania Game Com ’n (PGC), 950 A.2d 1120, 1134 (Pa. Cmwlth. 2008) (quoting Sevin v. Kelshaw, 417 Pa. Super. 1, 611 A.2d 1232, 1235 (1992)). Additionally, the plaintiff must summarize the facts essential to support the claims. Id. “The rule requires a plaintiff to plead all the facts that he must prove in order to achieve recovery on the alleged cause of action. The pleading must be sufficiently specific so that the defending party will know how to prepare his defense.” Commonwealth ex rel. Pappert v. TAP Pharmaceuticals Products, Inc., 868 A.2d 624, 635 (Pa. Cmwlth. 2005) (citing Department of Transportation v. Shipley Humble Oil Co., 29 Pa. Cmwlth. 171 370 A.2d 438 (1977)). The purpose behind the rules of pleading is to enable parties to ascertain, by utilizing their own professional discretion, the claims and defenses that are asserted in the case. Krajsa v. Keypunch, Inc., 424 Pa. Super. 230, 236, 622 A.2d 355, 357 (1993). “The pleadings must adequately explain the nature of the claim to the opposing party so as to permit him to prepare a defense, and they must be sufficient to convince the court that the averments are not merely subterfuge.” In re Estate of Schofield, 505 Pa. 95, 477 A.2d 473 (1984) (citing Sokoloff v. Stride, 404 Pa. 343, 172 A.2d 302 (1961); Homsby v. Lohmeyer, 364 Pa. 271, 72 A.2d 294 (1950); Rice v. Braden, 243 Pa. 141, 89 A. 877 (1914)).

In other words, the court must examine “whether the plaintiff’s complaint informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense.” Id. The court must also read all of the averments of the complaint and consider the nature of the case to determine if the complaint lacks specificity. Hock v. L.B. Smith, Inc., 69 Pa. D. & C. 2d 420, 423 (Pa. Com. Pl. Columbia 1974) (citing Roberts v. Peoples Cab Co., 7 Pa. D. & C. 2d 632 (Pa. Com. Pl. Allegheny (1955)). “It is enough that, considering the complaint as a whole, it contains sufficient material facts to show the existence of a cause of action.” Id. “In determining whether a particular paragraph in a complaint is stated with the necessary specificity, such paragraph must be read in context with all the allegations in the complaint. Only then can a court determine whether the defendant is put on adequate notice of the claim against which it must defend.” Unified Sportsmen of Pennsylvania v. Pennsylvania Game Com’n (PGC), 950 A.2d 1120, 1134-1135 (Pa. Cmwlth. 2008) (citing Yacoub v. Lehigh Valley Med. Assocs., 805 A.2d 579 (Pa. Super. 2002)).

Plaintiffs allege a violation of 73 P.S. §201-2(4)(xxi). That statute, otherwise known as the catchall provision of the Unfair Trade Practices And Consumer Protection Law (hereinafter “UTPCPL”), defines an unfair trade practice as “Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or misunderstanding.” To set forth a cause of action under 73 P. S. §201 -2(4)(xxi), the plaintiffs must prove the elements of common law fraud. Booze v. Allstate Ins. Co., 750 A.2d 877 (Pa. Super. 2000). The plaintiffs must prove the following elements: (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. Skurnowicz v. Lucci, 798 A.2d 788 (Pa. Super. 2002) (citing Bortz v. Noon, 556 Pa. 489, 729 A.2d 555 (1999)). The UTPCPL is to be liberally construed to effectuate its objective of protecting consumers from unfair business practices. Commonwealth by Creamer v. Monumental Properties, Inc., 459 Pa. 450, 329 A.2d 812 (1974). However, allegations of fraud must be averred with particularity. Pa.R.C.P. No. 1019(b). In order to aver fraud with sufficient particularity, the following two conditions must be met: “(1) the pleadings must adequately explain the nature of the claim to the opposing party so as to permit the preparation of a defense, and (2) they must be sufficient to convince the court that the averments are not merely subterfuge.” Martin v. Lancaster Battery Co., Inc., 530 Pa. 11, 18, 606 A.2d 444, 448 (1992) (citing Bata v. Central-Penn National Bank, 423 Pa. 373, 380, 224 A.2d 174, 179(1996)).

In the current case, the plaintiffs’ claim for a violation of the UTPCPL lacks the requisite level of specificity as required by Pa.R.C.P. No. 1019. Although, the plaintiffs have presented several averments alleging the elements of fraud, there are no specific allegations concerning the acts of each defendant, In paragraph 87 of the complaint, the plaintiffs aver that defendants Heitzenraters, defendant PPR Realty and defendant Northwood Realty knowingly failed to disclose the defective condition of the septic system, the inadequate repairs and the discharging of grey water on the neighbors’ property. However, there are no specific allegations concerning defendant PPR Realty’s knowledge of the defective condition prior to closing or whether it knew that the repairs were not done properly. The plaintiffs have not attributed any specific acts to defendant PPR Realty in their complaint. They merely state that all three defendants performed acts that were deceptive. There is no explanation as to defendant PPR Realty’s knowledge of the defective conditions of the property or how defendant PPR Realty became aware of the improper repairs to the septic tank. The plaintiffs have merely averred the elements of fraud in general terms and failed to plead any specific fraudulent or deceptive acts performed by defendant PPR Realty as required by Pa.R.C.P. No. 1019(b). Therefore, the plaintiffs have failed to set forth a claim pursuant to the UTPCPL with sufficient specificity and Count V of the complaint is dismissed without prejudice regarding defendant PPR Realty.

Next, defendant PPR Realty claims that paragraphs 13, 25 and 26 of the standard agreement of the sale of real estate bar recovery for the claim of negligence in Count III. Paragraph 13 of that agreement provided the plaintiffs with the option, at their expense, to have a professional inspection of the septic system within 15 days of the execution of that agreement. Paragraph 25 explains that the plaintiffs released from liability all brokers, their licensees, employees and officers of a firm or corporation who may be liable to them for any defects in the individual on-lot sewage disposal system or deficiencies in the on-site water service system. Also in paragraph 26, the plaintiffs agreed that they inspected the property or waived the right to do so and agreed to purchase the property in its condition at that time. Further, the plaintiffs acknowledged that the brokers did not make an independent examination of the property, including a mechanical inspection of any of the systems contained on the property. Defendant PPR Realty contends that the language of those paragraphs bars recovery for negligence; however, the plaintiffs claim that the parol evidence rule concerning integration clauses in contracts for the sale of real estate permits parol evidence of negligent inducement for conditions that are not readily apparent to the purchasers.

Negligent misrepresentation “applies only to those businesses which provide services and/or information that they know will be relied upon by third parties in their business endeavors, and it includes a foreseeability requirement.” Bilt-Rite Contractors, Inc. v. The Architectural Studio, 581 Pa. 454, 479, 866 A.2d 270, 286 (2005). In Bilt-Rite, 581 Pa. at 479, 866 A.2d at 286, the court noted that Pennsylvania law has adopted the restatement (second) of torts §552, which states: “(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.” A plaintiff must prove the following to establish a claim for negligent misrepresentation: “(1) a misrepresentation of a material fact; (2) made under circumstances in which the misrepresenter ought to have known its falsity; (3) with an intent to induce another to act on it; and (4) which results in injury to a party acting in justifiable reliance on the misrepresentation.” Bortz v. Noon, 556 Pa. 489, 500, 729 A.2d 555, 561 (1999) (citing Gibbs v. Ernst, 538 Pa, 193, 210, 647 A.2d 882, 890 (1994)). The difference between negligent misrepresentation and intentional misrepresentation is that the speaker does not need to know his or her words are untrue, but merely failed to make a reasonable investigation into the truth of his or her words to be held liable for negligent misrepresentation. Id.

In Pennsylvania, the admissibility of parol evidence is barred when the parties have deliberately placed their agreement in writing, unless there is evidence of fraud or mistake. Gianni v. Russell & Co., 281 Pa. 320, 323, 126 A. 791, 792 (1924). The purpose of the parol evidence rule is to maintain the integrity of written contracts by refusing to permit the contracting parties to alter their contract with contemporaneous oral declarations. LeDonne v. Kessler, 256 Pa. Super. 280, 286, 389 A.2d 1123, 1126 (1978) (quoting Rose v. Food Fair Store, Inc., 437 Pa. 117, 120-121, 262 A.2d 851, 853 (1970)). In determining whether the parol evidence rule applies to oral representations contemporaneous with a contract for the sale of real estate that contains an integration clause, the court must:

[Bjalance the extent of the party’s knowledge of objectionable conditions derived from a reasonable inspection against the extent of the coverage of the contract’s integration clause in order to determine whether that party could justifiably rely upon oral representations without insisting upon further contractual protection or the deletion of an overly broad integration clause. Id., 256 Pa. Super, at 294, 389 A.2d at 1130.

The parol evidence rule may be rendered inoperable where the seller in areal estate contract makes oral representations that induce the buyer to enter into the contract. Id., 256 Pa. Super, at 291, 389 A.2d at 1129. InLeDonne, the court ruled that the parol evidence rule barred evidence of oral representations regarding water leakage problems with the residence’s sundeck and cellar because those conditions could have been discovered upon an inspection of the premises, but did not bar evidence concerning the septic system as that could not be discovered by inspection of the premises. Id., 256 Pa. Super, at 298, 389 A.2d at 1132.

This issue was also addressed in Myers v. McHenry, 398 Pa. Super. 100, 580 A.2d 860 (1990). In that case, the appellants were taken to view the sellers’ residence by a real estate agent. During their inspection, there was no discussion regarding the water flow rate and the appellants decided to make an offer to buy the house. The appellants were aware at that time that the water was supplied by a well and they wanted the well and septic tank to be tested ensuring the well was not going dry. At the same time, a contract was drafted containing a clause that the appellants would have the water and septic system approved at their expense. The contract also stated that the appellants inspected the property or waived their right to do so and agreed to purchase the property based upon their inspection and did not rely on other representations. The sellers accepted the appellants’ offer and the agreement of sale was executed. The appellants made a second visit to the residence and were informed that the well was a “slow recovery well,” but were assured by the sellers that they could use it like a normal house, except they could not do five loads of laundry and expect the well to keep up with that pace. Subsequently, the veterans’ administration, who was providing financing for the transaction, required that the sellers bear the burden and cost of the water test. A substitute agreement of sale was executed by the parties. However, one of the sellers informed the appellants that he was unaware of a test for water flow and the appellants relied upon that representation. After closing, the appellants moved into the residence and began cleaning the house, but, within a few hours, the well ran dry. The appellants attempted additional drilling to increase flow rate and storage capacity, but they were still unable to perform normal living activities like flushing the toilet after each use, using the washing machine and taking a shower without having to turn the water on and off between soaping and rinsing. It must be noted, at the closing, the appellants signed an agreement which stated that they were aware that it was a slow recovery well; however, they did not understand the exact meaning of a slow recovery well. The appellants filed suit asserting claims of fraud and misrepresentation on behalf of the sellers. The trial court granted the sellers’ motion for summary judgment, citing to LeDonne, reasoning that the parol evidence rule would bar testimony regarding the sellers’ misrepresentations. The appellants filed an appeal and the Superior Court of Pennsylvania reversed and remanded the case for further proceedings.

Th sMyers courtnotedthatthe allegedmisrepresentations were made prior to or contemporaneously with the agreement. Id., 398 Pa. Super, at 107, 580 A.2d at 863. The court reiterated that it must balance the extent of the party’s knowledge of the objectionable condition derived from reasonable inspection against the coverage of the contract’s integration clause. Id., 398 Pa. Super, at 107, 580 A.2d at 864 (citing LeDonne, supra.). The Myers court reasoned, “We disagree with the views of the trial court that the problems with the well’s flow rate were readily ascertainable. Because the well is underground, the [appellants] could not detect a flow rate or storage capacity problem through visual inspection alone.” Id., 398 Pa. Super, at 108, 580 A.2d at 864. Hence, the court held that, even though the contract contained a clause in which the appellants acknowledged that it was a “slow recovery well”, the limitations of the well were not readily ascertainable and the appellants were permitted to provide the court with parol evidence regarding the misrepresentations of the sellers. Id., 398 Pa.Super. at 109, 580 A.2d at 865.

In the case sub judice, the plaintiffs were informed by the seller property disclosure statement that there was water leakage in the basement, garage or crawl space; movement, shifting, deterioration or other problems with the walls, foundation or other structural components; and the septic system leaked. The plaintiffs’ mortgage lender required the septic system to be repaired before the transaction could proceed. The price of the residence was increased from $137,000.00 to $140,000.00 and it was represented to the Plaintiffs that the septic system was repaired. Upon moving into the residence, the plaintiffs noticed several defects, which included waste water draining into the basement after members of the household showered, rain water and grey water flowing into the basement and sinkholes developing near the new septic tank. The plaintiffs had to routinely drain, dry, clean and sanitize the basement from rain water and sewage. In addition, grey water would leak onto a neighbors’ property through a pipe which ran from the plaintiffs’ house onto their property. The plaintiffs employed an excavator to investigate the sinkholes and discovered that the new septic tank was connected to the old septic tank and the pipes between the two were leaking. The old septic tank’s inlet and outlet pipes were cracked and deteriorated, the baffles inside the old septic tank had broken off and the old septic tank was cracked.

Those defects were not readily ascertainable by the plaintiffs prior to moving into the residence as they involve the septic system, which is located underground. These issues were known to the plaintiffs through the seller property disclosure statement, but it was later represented by defendants Heitzenraters that the septic system was repaired. It must be noted that the standard agreement of the sale of real estate contains clauses limiting defendant PPR Realty’s liability. However, in accordance with LeDonne and Myers, integration clauses cannot be utilized to shield a seller of real estate from liability for defective conditions that are not readily ascertainable from routine inspection. Clearly, the defective condition of the septic system could not be ascertained by merely inspecting the property as it would require excavating around the septic tanks to inspect the condition of that system. Thus, the plaintiffs are not barred by the parol evidence rule from presenting evidence of any alleged misrepresentations regarding the condition of the septic tanks that induced them into purchasing the residence.

For the reasons set forth in this opinion, the court sustains defendant PPR Realty’s first preliminary objection and Count V of the complaint is dismissed without prejudice. In addition, defendant PPR Realty’s second preliminary objection is overruled as there are sufficient allegations in the complaint to aver a claim for negligent misrepresentation regarding the condition of the septic tank.

ORDER OF COURT

Now this December 10, 2012, this case being before the court on October 29, 2012, for oral argument on the preliminary objections to complaint filed by the defendants PPR Realty, t/d/b/a Prudential Preferred Realty, with the plaintiffs James J. Wassel and Gail L. Wassel, husband and wife, appearing through counsel, Richard W. Kelly, Jr., esquire and the defendant PPR Realty, t/d/b/a Prudential Preferred Realty, appearing through counsel, James P. Sommers, esquire and after consideration of the arguments and briefs presented and submitted by counsel and a complete and thorough review of the applicable record, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

1. In accordance with the attached opinion, the preliminary objection to Count V of the plaintiffs’ complaint in the nature of lack of specificity as to the deceptive acts or practices performed by the defendant PPR Realty t/d/b/a Prudential Preferred Realty is hereby sustained.

2. Count V of plaintiffs’ complaint as it relates to defendant PPR Realty, t/d/b/a Prudential Preferred Realty is hereby dismissed, without prejudice.

3. In accordance with the attached opinion, the preliminary objection in the nature of legal insufficiency to Count III of plaintiffs’ complaint is hereby overruled.

4. Plaintiffs may file an amended complaint as to Count V within thirty (30) days after notice of this order of court.

5. The prothonotary is directed to serve a copy of this order of court upon counsel of record.

      . Northwood Realty through its agent, Gina Coast, was acting as the seller’s agent for defendants Heitzenraters.


author: BUCCI, J,

text:
    Morganti v. Morganti.

      Jacquelyn R. Mark, for plaintiff.

      Lisa D. Gentile, for defendant.
    February 14, 2013
   BUCCI, J,

Findings of Fact

1. Plaintiffs Donna and Daniel Morganti, husband and wife (hereinafter referred to as “maternal grandparents”) are the natural parents of defendant, and the paternal grandparents ofthe child who is the subjectofthis litigation: Christian Henry, bom October 13, 2004 (hereinafter referred to as “the child”).

2. Plaintiff, Vicki Brown, (hereinafter referred to as “paternal grandmother”) is the mother of the child’s deceased father.

3. Defendant, Danielle Wenger (formerly Danielle Morganti, hereinafter referred to as “mother”), is the natural mother of the child.

4. Mother is currently married to Eric Wenger (hereinafter known as “stepfather”), and they have been married since December 12, 2009.

5. The natural father of the child (hereinafter referred to as “father”) is deceased.

6. Mother is a full-time, stay-at-home mother.

7. Mother has two other children from her present marriage, ages 4 years and 2 months, respectively, who are the child’s half-siblings.

8. The child is very close to his half-siblings.

9. The child is very close to mother and stepfather.

10. Mother has had primary custody of the child since August 5, 2011 by agreement of the parties. Said agreement was adopted as an order of court on that same day (the “August 5, 2011 custody order”).

11. Maternal grandparents have two weekends of custody per month with the child per the August 5, 2011 custody order.

12. Attimes duringthe child’s life, maternal grandparents have had primary custody of him, and during most of those time periods mother resided in their house.

13. The initial custody order in this case, dated February 15, 2007, gave maternal grandparents primary custody of the child. At that time, mother was residing with maternal grandparents. Mother was told by maternal grandparents that they would not deny custody of the child to her.

14. Maternal grandparents failed to properly care for the child when they had custody, for example they failed to obtain necessary immunizations, failed to provide dental care, and failed to dress him appropriately.

15. Mother repeatedly attempted to regain primary custody of the child from maternal grandparents, and she was promised that they would give her full custody in three to six months if she would drop the then-pending custody action, which mother did do prior to this current proceeding. However, maternal grandparents refused to give custody back to mother until the day of the pretrial conference on August 5, 2011.

16. Four days later, on August 9, 2011, maternal grandparents filed a “petition to recant oral agreement” stating thattheir oral agreement on the record andunder oath to give custody back to mother was not made voluntarily. The petition was denied. Maternal grandparents then filed an appeal to Superior Court, which was denied as well.

17. Maternal grandparents had filed a petition to modify during the pendency of the appeal which was held in abeyance pending the outcome of the appeal.

18. It is only as mother has gotten older and matured that she has been able to defend herself against maternal grandparents.

19. Maternal grandparents have historically controlled mother through fear and intimidation. Maternal grandparents have a toxic, harmful, estranged relationship with mother, which inures to the detriment of the child.

20. It is believed that maternal grandparents are currently subject to a Berks County Children and Youth Services (“BCCYS”) investigation concerning issues with the child while in their care, and concerning reports of abuse against their own children (including mother) while their children were growing up.

21. Mother recently disclosed that she was sexually abused by paternal grandfather while growing up, and that she was physically and verbally abused by maternal grandmother.

22. Mother’s brother Derrick Morganti also disclosed to BCCYS that he had been severely physically abused by maternal grandparents while growing up.

23. Mother’s sister Desiree also disclosed that she was sexually abused by paternal grandfather while growing up.

24. Mother kept a diary as a child, and in this diary she detailed one of the incidents of abuse against her brother.

25. The child reported taking baths with paternal grandfather and has made other comments that concern inappropriate behavior.

26. The child has informed mother that if he “tells pop-pop’s (meaning maternal grandfather’s) secret, then pop-pop is going to jail” and the child will never see him again.

27. Maternal grandparents have engaged a systemic campaign to alienate the child from mother, which justifies limiting contact between maternal grandparents and the child.

28. The child has reported that maternal grandparents have told him that mother is a “liar”, that their home is his real home, that stepfather is “mean”, that mother caused father to die, etc.

29. When they had primary custody, maternal grandparents failed to keep mother informed of medical and dental and educational appointments.

30. Maternal grandparents consistently try to interfere in the relationship between mother and the child, which justifies limiting maternal grandparents’ partial custody.

31. Limiting maternal grandparents’ partial custody is in the child’s best interests.

32. Maternal grandparents make custody exchanges difficult for the child. They have admitted to videotaping the exchanges over 20 times.

33. In the past year, paternal grandfather offered to buy the child from his mother for $10,000.

34. Maternal grandparents have told the child that he is not allowed to love his paternal grandmother.

35. The child and his mother have a very close and loving relationship.

36. The child has a very close and loving relationship with paternal grandmother and her family.

37. Mother and paternal grandmother cooperate and communicate regarding the child, and have a healthy relationship with each other.

38. The child has a very close and loving relationship with stepfather and his family, including stepfather’s mother who testified as a character witness for mother.

39. When the child returns from visits with maternal grandparents, he has behavioral issues and repeats negative comments made to him by maternal grandparents about mother.

40. The child has made the comment that he can “smile” when he is with his mother at her house. The inference is that he does not smile while he is in the partial custody of maternal grandparents.

41. It is not in the best interests of the child to have any contact with maternal grandparents at this time according to the child’s counselor, RanaDimmig, MSS, MLSP, LSW of A New Dawn Family Solutions, LLC.

42. Maternal grandparents actions justify limiting or even terminating maternal grandparents’ partial custody rights.

43. Maternal grandparents’ relationship with mother is harmful to the child’s emotional development and is not in the child’s best interest.

44. Maternal grandparents say they “love” the child, but have demonstrated over several years that the manner in which they express their love is unhealthy and detrimental to the child’s best interests.

DISCUSSION

This most recent custody trial is the latest chapter in the long saga of a very contentious child custody dispute between maternal grandparents and mother. Father is deceased.

Paternal grandmother and mother long ago have amicably resolved paternal grandmother’s partial custody rights and have demonstrated that they are more than capable of cooperation and communicating with each other in a reasonable manner. On the other hand, mother and maternal grandparents have been locked in a contentious, vitorlic dispute for over six years. When the child was approximately two-and-a-half years old, maternal grandparents were granted primary custody of the child. At that time, mother was permitted to be at maternal grandparents’ residence at all times and father was awarded periods of partial custody as agreed to between father and maternal grandparents. In 2008 this order was modified, upon petition of maternal grandparents, to limit mother’s access to maternal grandparents’ residence. Maternal grandparents’ filed a petition to modify and eventually a custody order was entered in 2009 wherein maternal grandparents retained primaiy physical custody of the child, but mother was granted partial custody Monday, Wednesday and Friday evenings, as well as every weekend from Saturday to Sunday, and Thursday evenings (if her work schedule changed to allow for that). Eventually, mother married, moved into her marital home, and sought primary custody of the child.

On March 14, 2011, mother filed a petition to modify the current custody order, seeking primary custody of the child. The custody master recommended that mother have primary custody and that maternal grandparents shouldhave regular periods of partial custody. Maternal grandparents filed exceptions to the master’s recommendation, which brought the case to this court’s docket for the first time. We held a pretrial conference on August 5, 2011, at which time maternal grandparents and mother were each represented by counsel. Paternal grandmother was pro se. Following an off-the-record, in-chambers conference with counsel for the parties, (paternal grandmother did not participate as her rights of partial custody were not impacted), counsel consulted with their respective clients. After conferring with their clients, counsel informed the court that all parties had reached an amicable agreement. Counsel for the parties, in open court and in the presence of their clients, stated the agreement on the record and all parties, under oath, stated on the record that they agreed to the terms outlined by counsel. The agreement provided that mother would have primary custody and maternal grandparents would have partial custody on alternating weekends. Paternal grandmother would have partial custody two weekends per year and two weeks in the summer. The court adopted the parties’ agreement as an order of court (this is the August 5, 2011 custody order referred to above in the findings of fact).

Four days later, on August 9, 2011, maternal grandparents hired a new lawyer who filed a document entitled “petition to recant the oral agreement” essentially alleging that despite being competently represented in court and consenting to the agreement on the record, maternal grandparents were somehow forced into agreeing to the August 5, 2011 custody order. The court denied the petition without a hearing and maternal grandparents filed a pro se appeal to the Superior Court. Several days later, while the appeal was still pending, maternal grandparents’ new counsel filed a petition to modify the agreed-upon order, which this court held in abeyance pending the outcome of the appeal.

On appeal, maternal grandparents alleged that this court improperly coerced them into agreeing to the terms placed on the record in open court. They alleged that this court “showed anger and resentment towards maternal grandparents.” They alleged the court engaged in such scandalous behavior as “yelling and screaming” and stating “I don’t care what the evidence will show...”. Of course their allegations are not supported by the record and are refuted by mother’s counsel who was present during all the proceedings, on and off the record. We likewise deny these preposterous allegations.

Maternal grandparents further alleged that they only agreed on the record to the terms outlined by counsel because they “panicked” when informed by their counsel of mother’s allegations of sexual abuse against maternal grandfather.

We note that throughout these proceedings, maternal grandparents have been consumed by how this litigation is affecting them, rather than demonstrating to the court that they are concerned for the welfare of the child. To wit, their concise statement of matters complained of on appeal raises a myriad of issues, the overwhelming majority of which have nothing to do with the best interests of the child, but rather concern the perceived harm caused to maternal grandparents’ reputation by mother’s revelations about being abused as a child. We further note that because there was no hearing, there was no testimony regarding any such allegations. In fact, maternal grandparent’s appeal and also their pending litigation in civil court against mother for defamation have done far more to draw attention to the allegations against them than anything in our courtroom on the day the agreement was entered. In their 2011 concise statement of matters complained of on appeal, maternal grandparents complain that this court abused its discretion by “not acknowledging the potential damage to the reputations and livelihoods of (maternal grandparents) if these allegations were left unaddressed”; in “not acknowledging that (maternal grandparents) are licensed therapeutic foster parents and these allegations, left unaddressed, could affect that position”. They were also concerned with their “right to confront their accuser”.

Ultimately the Superior Court affirmed this court’s ruling wherein we denied maternal grandparents’ “petition to recant oral agreement” and remanded the case. Following remand, maternal grandparents moved forward with their petition to modify, which had been theretofore held in abeyance. The matter proceeded in due course to a conciliation conference with the custody master. Following the conference, the custody master (again) recommended that mother retain primary custody of the child.

Maternal grandparents again filed exceptions to the master’s recommendation. During the pendency of maternal grandparents’ petition to modify, maternal grandparents filed a petition for contempt alleging that mother and paternal grandmother conspired to deny them their regularly-scheduled, partial custody weekend because paternal grandmother chose to exercise one of her two weeks of partial custody over summer vacation on what would normally be maternal grandparents’ regular weekend. This court denied the contempt petition on the grounds that paternal grandmother followed the terms and provisions of the August 5,2011 custody order, and in fact she went above and beyond the requirements by giving all parties advance notice of her choice of weeks and even deferred to all other parties’ summer schedules before planning her vacation with the child. It is important to note that paternal grandmother is entitled to only two weekends per year and two weeks per year of partial custody of the child. Maternal grandparents, on the other hand, enjoy partial custody two weekends per month, and also extended vacation. With respect to maternal grandparents’ complaint that paternal grandmother usurped one of their weekends of custody, we point out that paternal grandmother is entitled to two consecutive or non-consecutive weeks, which by its terms clearly anticipates that she could have custody over a weekend that would otherwise be maternal grandparents’ (or a weekend period would otherswise be mother’s). There is nothing in the order requiring paternal grandmother to defer to maternal grandparents’ weekends. In fact, we believe paternal grandmother could have selected two, non-consecutive weeks of vacation, both of which could fall on weekends where the child would otherwise be with maternal grandparents, and she would still not have run afoul of the order by its terms. The order does not require paternal grandmother to notify maternal grandparents of her selected weeks of custody. Mother has sole legal custody of the child and there is no reason that mother cannot consent to whatever two weeks she feels is appropriate for the child to spend with paternal grandmother. To suggest that paternal grandmother was in contempt for exercising the meager custody time she enjoys, especially given her courteous and reasonable behavior in selecting her vacation time, is absurd.

Following a full hearing on maternal grandparents’ petition for contempt, which required paternal grandmother to travel several hours in ill health to defend herself and mother to employ counsel to respond and attend the hearing, we found the petition to be baseless and frivolous and denied it accordingly.

Counsel for mother filed a“petition to impose sanctions” alleging that maternal grandparents’ contempt petition was obdurate, vexatious and filed in bad faith entitling mother and paternal grandmother to attorney’s fees and costs pursuant to 23 Pa.C.S.A.§5339.

On the 20th day of November, 2012, this court held a hearing to address the petition for sanctions. Following the hearing, we found that maternal grandparents’ contempt petition was indeed obdurate, vexatious and filed in bad faith and we awarded mother $1,300 in counsel fees incurred in defending the contempt petition and we awarded paternal grandmother $438 to compensate her for her travel expenses incurred as a result of the filing of the contempt petition.

In response, maternal grandparents filed a petition for reconsideration on November 26, 2012, based on the fact that the court had not considered maternal grandparent’s ability to pay the contempt sanction. We held an evidentiary hearing on the 27th day of December, 2012 to consider the merits of this petition. At this hearing, maternal grandparents presented little evidence to support their position, but rather attempted to re-litigate the underlying contempt issue by insisting that their reading of the August 5, 2011 custody order was reasonable and that therefore their contempt petition was also reasonable. The only evidence presented at the hearing regarding the parties’ finances indicated that they have spent tens of thousands of dollars on legal fees and other services, such as privately-administered lie-detector tests, psychological examinations, court costs and the like, all as part of their ongoing crusade against mother. Following the hearing, the petition for reconsideration was denied.

Maternal grandparents’ litigious behavior is appalling and causes us genuine concern over its traumatic impact on mother (and by extension, the child). No mother or child should be forced to endure such conduct and behavior as demonstrated by maternal grandparents. It is indicative of their priorities that maternal grandparents filed their contempt petition very shortly before mother gave birth to her youngest child. They demonstrated a callous disregard for the impact of the stress that being dragged into court would have on the health of mother (who is, after all, their own daughter) and also the impact on their unborn grandchild. Maternal grandparents have expressed no remorse for their actions nor do they even seem to grasp the harm that their course of conduct has had on mother and the child.

Maternal grandparents fail to understand or appreciate that it is healthy and natural for mother to have primary custody of the child. Rather than celebrating the fact that mother has grown and matured into a competent and capable parent, grandparents persist in their steadfast belief that the child should still be with them. We recognize that at one point in time, maternal grandparents had primary custody of the child and that they may have a strong (if not healthy) bond with him. However, maternal grandparents have not demonstrated to this court why, now that mother is mature, stable and prepared to care for the child, the child should be removed from her care.

LEGAL ANALYSIS

The law favors the parents of a child above all others, and Pennsylvania has codified this presumption in the child custody act. See 23 Pa.C.S.A §5301 et. Seq.

In any action regarding the custody of the child between a parent of the child and a nonparent, there shall be a presumption that custody shall be awarded to the parent. The presumption in favor of a parent may be rebutted by clear and convincing evidence.

23 Pa.C.S.A §5327. In other words, the parties before us do not start off on equal footing, but rather maternal grandparents must overcome the statutory preference for the child to remain with mother. We find that the maternal grandparents have not overcome this presumption, and we make this finding based on an analysis of the standard custody factors, as set forth below, as well as the fact that maternal grandparents have failed to demonstrate mother’s lack of fitness as a parent, raised any concerns about the safely, welfare, or development of the child while in her care, or provided any other relevant basis for setting aside the statutory presumption.

Notwithstanding the fact that this case involves a parent versus nonparents, “[i]t is axiomatic that the paramount concern in any child custody proceeding is the best interests of the child.” Costello v. Costello, 446 Pa.Super. 371, 375, 666 A.2d 1096, 1098 (1995) (emphasis added). “Such a determination, made on a case-by-case basis, must be premised upon consideration of all factors which legitimately have an effect upon the child’s physical, intellectual, moral and spiritual well-being.” Alfred v. Braxton, 442 Pa.Super. 381, 385, 659 A.2d 1040, 1042 (1995)(intemal quotations omitted). Because this is a case between mother and maternal grandparents, in addition to considering whether maternal grandparents have overcome the statutory presumption in favor of mother and considering the child’s best interests, it may also be necessary to consider whether awarding maternal grandparents custody interferes with the child’s relationship with mother. See 23 Pa.C.S.A. §5328(c).

Keeping in mind the overarching issue of the child’s best interests, and considering the presumption in favor of mother, we now consider the statutory factors set forth in the Pennsylvania child custody act. 23 Pa. C.S.A. §5328(a).

Section 5328 Factors

1. In determining custody, we must evaluate which party is more likely to encourage and permit frequent and continuing contact between the child and the other party. 23 Pa.C.S.A. §5328(a)(l). There is extensive history in the case of maternal grandparents limiting contact between paternal grandmother and the child. For example, maternal grandparents would only allow paternal grandmother to see the child during mother’s periods of custody. To this end, maternal grandparents filed a contempt petition against mother and paternal grandmother, which was (as discussed above) clearly frivolous. Also, maternal grandparents have at times attempted to limit mother’s time with the child by refusing to surrender the child for mother’s periods of partial custody and otherwise undermining and thwarting mother’s attempts to have a relationship with the child. In sum, maternal grandparents have a dismal history when it comes to encouraging and permitting contact between the child and the other parties.

2. We must also consider any present and past abuse committed by a party, or member of the party’s household, whether there is a continued risk of harm to the child or an abused party, and which party can better provide adequate physical safeguards and supervision of the child. 23 Pa.C.S.A. §5328(a)(2). The child’s counselor, Rana Dimmig, testified extensively at the custody trial. Ms. Demmig has a B.A. in social work and a double master’s in social work and law and social policy from Bryn Mawr College. She is a licensed social worker and has 17 years of experience working with children who have been traumatized, either physically, sexually, or emotionally. She was qualified as an expert at the custody trial and was permitted to testify as to her expert opinions.

Ms. Demmig testified that, based on conversations she has had with the child in the course of counseling, she suspects that the child has been exposed to unhealthy and inappropriate behavior at maternal grandparents’ residence, including inappropriate sexual behavior. She testified that the child revealed to her that “pop pop had touched his penis and that it hurt”. Ms. Demmig did not want to delve too deeply into the subject, because she did not want to taint any ongoing investigations into the allegations against maternal grandfather, and so she did not inquire further at that time. Additionally, there was testimony that maternal grandfather was bathing with the child as recently as 2010. The child has also repeatedly told the counselor that maternal grandfather has a secret, and that if the child reveals the secret, maternal grandfather will either go to jail or die. Obviously this is vague and not clear evidence of sexual abuse, and, although the facts presented are disturbing, this case does not turn on the issue of sexual abuse of the child.

3. We next examine the parental duties performed by each party on behalf of the child. 23 Pa.C.S.A. §5328(a) (3). The child resides with mother and in mother’s household. Mother performs essentially all of the parental duties, and the court is satisfied that she is performing them adequately. Paternal grandmother testified that mother is an excellent mother to the child. In addition to the day-today care of the child, Ms. Dimmig testified that “mom is doing a great job, implementing my suggestions”. In sum, mother is adequately caring for the child and performing her parental duties.

4. The court must also consider the need for stability and continuity in the child’s education, family life and community life, 23 Pa.C.S.A. §5328(a)(4). Obviously allowing the child to remain in mother’s household, where he is now established and bonded with the members of that household, would promote stability and continuity. Paternal grandmother described stepfather as “a very positive influence in the child’s life and excellent role model.” Stepfather fills the role of a father figure in the child’s life. Stepfather impressed this court as a responsible adult, genuinely concerned with the child’s well-being. He appears to be a strong family man and a good stepfather to the child. Rana Dimmig characterized the child’s healthy, supportive relationship with his stepfather as a positive aspect of the child’s life. The child has indicated that he would like to have stepfather’s last name, but the child is conflicted about that because he also misses father. The child wants to be part of both father’s and stepfather’s family.

5. If this were a contest between two parents, the court would consider the relative availability of extended family. 23 Pa.C.S.A. §5328(a)(5). Because this is a contest between the members of the same family, this factor is not relevant or dispositive.

6. We next turn to the child’s sibling relationships. 23 Pa.C.S.A. §5328(a)(6). This is a very important consideration in this case, because the child enjoys a close bond with his four-year-old half-brother, Jordan who resides in mother’s household. We also note that mother and stepfather recently welcomed another child into their family, and if the child remains with mother, the child would have the opportunity to grow up with both of his younger half-siblings.

7. When appropriate, the court will hear the well-reasoned preference of the child, based on the child’s maturity and judgment. 23 Pa.C.S.A. §5328(a)(7). The court did not hear, nor would it have considered, the preference of the child in this case, due to this child’s tender age.

8. In reaching our decision, we evaluate any attempts of one party to turn the child against the other. 23 Pa.C.S.A. §5328(a)(8). This factor is one of the most significant factors here, given the degree and extent of acrimony between maternal grandparents and mother. It is clear from the history of this case that the parties are at odds, with maternal grandparents going as far as suing mother in civil court. Rana Dimmig testified that maternal grandparents are engaging in campaign of parental alienation. She testified that:

It has been an absolute nightmare for Christian. He is consistently told that the person that he loves (mother) is not a good person and is not someone that he should be with, despite the fact that (paternal grandmother) also supports (mother) and that (stepfather) supports (mother)...He clearly wants to be with his mom and clearly he loves her, but he also clearly also doesn’t want to disappoint (maternal grandparents). So that’s the conflict for him.

Ms. Demmig further testified that the child told her that maternal grandmother calls mother a liar and tells him that he should not believe what she says. Maternal grandparents also apparently have told the child that they do not have to listen to mother or respect her authority, which is particularly damaging in this case where mother is attempting to re-establish a bond with the child. There was also testimony that maternal grandmother told the child that it is mother’s fault that father died. Additionally, stepfather testified to witnessing maternal grandparents’ belligerent conduct, such as maternal grandfather yelling and screaming at mother and maternal grandfather videotaping custody exchanges. The parental alienation by maternal grandparents is so pervasive that, based almost solely on this factor, Rena Dimmig has indicated to the court that she feels continued contact between the child and maternal grandparents is contrary to the child’s best interests. She testified:

At this point, (the child) needs to be in one stable, loving environment that is supportive of him. At this point, I truly believe that because (maternal grandparents) are not supportive of (mother) and her relationship with (the child) it causes too much conflict and emotional stress for him.
Really, at this point I don’t recommend him to see them in an unsupervised or even in any setting right now until (the child) is able to firmly re-establish his relationship with (mother) so he doesn’t feel so tom about wanting to love her and wanting to be with her.

The ongoing conflict between the parties is the crux of this case, and, clearly it favors awarding primary custody to mother and limiting or even eliminating all contact with maternal grandparents, at least until they are able to foster a healthy relationship between mother and the child.

9. We must determine which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child, adequate for the child’s emotional needs. 23 Pa. C.S.A. §5228(a)(9). According to Rana Dimmig, who has observed the child’s behavior and interactions, mother has a strong bond with the child and mother is focused on the health and well-being of the child. Likewise, paternal grandmother testified that mother and the child have a healthy relationship. There are no allegations that either party is unable to meet the physical needs of the child, however, maternal grandparents appear to be incapable of meeting the child’s emotional needs, based on their actions over the past several years as they relate to the child.

10. We must consider which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child. §23 Pa.C.S.A. §5328(a)(10). We are satisfied that mother is competent to care for the daily needs of the child. Ms. Demmig says mother is taking appropriate actions to address the child’s stress and conflict. Mother follows the counselor’s recommendation regarding parenting skills, such as setting boundaries for the child and developing a system of discipline based on rewards rather than punishment. On the other hand, maternal grandmother refused to take the child for immunizations during the period of time when maternal grandparents were the child’s primary caretakers. With respect to the emotional needs of the child, we have grave concerns about maternal grandparents’ capacity to adequately address them.

11. The court, where relevant, must also consider the proximity of the residences of the parties. 23 Pa.C.S.A. §5328(a)(ll). This factor relates to the feasibility of custody exchanges, and therefore is not a particularly relevant consideration here. The physical distance between these parties is not the issue in this case.

12. The court must also look at each party’s availability to care for the child or ability to make appropriate childcare arrangements. 23 Pa.C.S.A. §5328(a)(12). Mother is a full- time, stay-at-home mom who is completely available to dedicate herself to caring for her children, including the child who is the subject of this litigation. Maternal grandfather does not work because he is legally disabled and maternal grandmother is also available for childcare. Therefore, this factor does not favor either party.

13. We must also review the level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. 23 Pa.C.S.A. §5328(a)(13). As discussed more fully above in paragraph 8, there is an incredible degree of conflict between these parties, which is harmful to the child. The counselor testified that this conflict has spilled over into all areas of the child’s life, affecting his behavior in general. The conflict is so extreme that maternal grandparents have gone so far as to videotape custody exchanges and to pursue civil litigation against mother for issues raised during the course of the custody litigation. The ongoing conflict to which the child has been exposed may cause long term emotional harm to the child. Rana Dimmig testified that the child’s exposure to conflict is already manifesting in symptoms of post traumatic stress syndrome. We attribute the lions’ share of responsibility for the conflict between the parties to maternal grandparents.

14. We must take into account any history of drug or alcohol abuse of a party or member of a party’s household. 23 Pa.C.S.A. §5328(a)(14). Although there are allegations of mother’s use of drugs in her youth, we have no evidence of recent or current use of drugs by mother. A parent’s ability to care for a child must be determined as of the time of the trial, and not based on past behavior at an earlier point in time. Hall v. Mason, 462 A2d 843 (Pa. Super. 1983); Bresnock v. Bresnock, 500 A.2d 91 (Pa. Super. 1985).

15. We next look to the mental condition of the parties. See 23 Pa.C.S.A. §5328(a)(15). We do not have a great deal of information about the mental health of the parties because evaluations were not performed. However, has a history of depression for which she was first treated at 21 years of age. This treatment included being hospitalized for seven days. Mother is currently prescribed Zoloft for post-partum depression. We are satisfied that any mental health concerns involving mother have been addressed and adequately treated, and thus we have no present concerns about mother’s mental condition.

16. There are no other relevant factors that we have not already considered in determining the issue of primary custody of the child. See 23 Pa.C.S.A. §5328(a)(16).

CONCLUSION

Because of the degree of conflict between the parties, the child’s counselor Rana Dimmig testified that in her professional opinion, it is in the child’s best interests to terminate maternal grandparent’s partial custody at this time, even though maternal grandparents have been an integral part of his life since birth. She recommends insulating the child from maternal grandparents because they have created a “negative situation for the child” by attempting at each juncture to undermine mother’s authority and disrupt mother’s attempts to re-establish a healthy and nurturing relationship with the child.

Clearlymotheriscapableofhavinghealthyrelationships, as evidenced by her marriage and mother’s relationship with paternal grandmother, which is in stark contrast with her relationship with her own parents. Paternal grandmother testified that mother is very supportive of her relationship with the child, paternal grandmother supports mother retaining primary custody, whereas she is very critical of maternal grandparents. Paternal grandmother testified that “I know the best place for my grandson is with mother. He is safe there, happy there and thriving in mother’s household”.

In reaching a decision in this case, we consider the statutory presumption in favor of mother, the statutory factors set forth in evaluating the best interests of the child, the recommendation of the child’s counselor as well as the fact that the child has a long-standing bond with maternal grandparents. Based on all of the foregoing, we enter the following order:

FINAL CUSTODY ORDER

And now, this day of, 2013, after trial in this matter, it is hereby ordered and decreed as follows:

1. Mother shall have sole legal and primary physical custody of the child, Christian Henry, bom October 13, 2004.

2. Maternal grandparents shall have partial custody of the child one Sunday per month from 12:00 noon until 5:00 p.m. As the sole legal custodian, mother shall have discretion to select which weekend maternal grandparents exercise this period of partial custody.

3. Maternal grandparents shall provide all transportation to and from mother’s residence.

4. Maternal grandparents are prohibited from videotaping the custody exchanges and shall refrain from making any disparaging or negative comments about mother or members of mother’s household to the child.

5. Paternal grandmother shall have periods of visitation with Christian, for not less than four weekends per year and two consecutive or non-consecutive weeks each year. Paternal grandmother shall make arrangements directly with mother to schedule any of her periods of visitation. Paternal grandmother’s periods of visitation shall take priority over the regular custody schedule.

      . The filing of the notice of appeal divested our jurisdiction during the pendency of appeal.

      . Following remand of record from Superior Court, maternal gran - parents were represented by the same counsel who filed the “petition to recant oral agreement”. This attorney also filed the contempt petition and represented them at the contempt petition hearing and at the “sanctions” hearing.

      . Father testified that he paid over $20,000 in legal fees in 2012 alone. During the pendency of the maternal grandparents petition to modify, maternal grandparents filed a defamation suit against mother which is pending before another judge of this court.

      . Standing was not challenged or addressed by this court, and ther - fore the basis of maternal grandparents’ standing as it relates to Section 5324 vs. Section 5325 is not in the record. Accordingly, we do not.


author: ODELL-SENECA, /,

text:
    Lewicki v. Washington County.

      John C. Brzustowicz, for plaintiff.

      Robert J. Grimm and David E. Holland, for defendant.
    February 12, 2013
   ODELL-SENECA, /,

Before this court are the preliminary objections in the Nature of Demurrer and motion for sanctions that Washington County, the Washington County Tax Claim Bureau, and Treasurer Francis King jointly filed on November 26, 2012. Defendants P.S. Hysong and Sean Lewis joined folly in the said preliminary objections and motion for sanctions three days later.

Background

According to the Lewickis’ October 15,2012 complaint, they are brothers and co-owners of a certain 48.9 acres of realty, in Canonsburg, Pennsylvania. See complaint at 3.

The Lewickis allege that Washington County, via its tax claim bureau and Treasurer King, alienated the subject realty from them via a tax sale on September 19, 2000, for delinquent taxes totaling $2,063.45; that the county defendants failed to provide the plaintiffs with legal and proper notice of the tax sale, because they mailed notice of it only to Robert Lewicki, whom the county defendants knew suffered (and continues to suffer) from diminished mental capacity; that, at tax sale, Ms. Hysong paid $8,100.00 for the realty and recorded her January 17, 2001 deed to same on January 26, 2001; that Ms. Hysong initiated a quiet title action against the Lewickis in this court on March 1, 2001; and that her action proceeded to judgment for Ms. Hysong, to wit, senior judge John R Bell held for this court that said tax sale:

was a valid and proper tax sale and that sale served to divest the defendants (i.e., the Lewickis) of all right, title and interest in the property known as 44 Lewicki Road, the plaintiff (i.e., Ms. Hysong) is the sole and exclusive fee [sic] title owner of this property by virtue of the above-noted tax sale, and the plaintiff is entitled to exclusive possession of the premises and the defendants and all those claiming an interest in the property through and under them are directed to vacate the premises within thirty (30) days of the date of this order.

Id. at 3, 8, 13. The Lewickis raise four counts in their complaint, seeking declaratory and equitable relief and damages in excess of $1,000,000.00 from all defendants. Id. at 17-36.

Scope and Standard of Review

The scope of review for preliminary objections is limited. This court is to examine only the complaint and must “accept as true all well-pleaded material allegations...as well as all inferences reasonably deduced therefrom.” Saxberg v. Pa. Dept. of Corrections, 42 A.3d 1210, 1211 (Pa. Cm with. 2012). The standard for review is strict; it disfavors the objecting party. “In order to sustain preliminary objections, it must appear with certainty that the law will not permit recovery, and any doubt should be resolved by a refusal to sustain them.” Id.

Analysis

I. Defendants’ Preliminary Objections

The defendants’ preliminary objections are twofold: (1) Plaintiffs, having petitioned for a writ of audita querela and a writ of error, coram nobis, seek relief that no longer exists in Pennsylvania and (2) the affirmative defense of res judicata as to the entire action. Pennsylvania rule of civil procedure 1028 governs preliminary objections and limits them to eight grounds. The defendant’s ripe preliminary objections are both based upon Pa. R.C.P. 1028(a)(4) — the legal demurrer.

A. Demurrer to the Petitions for Writs of Audita Querela and of Error, Coram Nobis.

In their preliminary objections, defendants assert that the petitions are “nothing more than the plaintiffs’ attempt to exploit obscure procedural mechanisms for the purpose of obtaining a form of extraordinary relief to which they are not entitled,” and plaintiffs “rely on outdated, outmoded writs which generally only figure in criminal proceedings, whether petitioned for in state or Federal Court.” Preliminary objections in the nature of demurrer and motion for sanctions at 4. In their brief, defendants cite Federal Rule of Civil Procedure 60(e) and various rulings from the United States Court of Appeals for the Third Circuit to suggest that writs of audita querela and of error, coram nobis, are no longer available in civil matters. Aside from all of this having absolutely no bearing on Pennsylvania law or the Pennsylvania rules of civil procedure, defendants, at oral argument, conceded that neither of the prayed-for writs is obsolete or abolished in this Commonwealth.

Indeed, that concession proves prudent on defendants’ part, because this court’s research reveals that both the writ of audita querela and the writ of error, coram nobis, have always existed in Pennsylvania law, though petitioners have rarely (if ever) availed themselves of them. The writs now sought were a part of the English common law that existed within the Colony of Pennsylvania on May 14, 1776, and are therefore incorporated into the corpus of our law by the general assembly. See 1 Pa. C.S. § 1502(a).

The Supreme Court of Pennsylvania has repeatedly acknowledged the existence of these writs. “Both of these forms of proceedings are allowed in our practice (though seldom used), and therefore the parties may resort to them, if they do not think proper to abide by the discretion of the court below.” Merchants’ Ins. Co. v. De Wolf, 33 Pa. 45, 46, (1859) (parens in original). “If his defense to the execution [of a judgment] be legal, such as payment, release, or as we have lately held, bankruptcy, his proper remedy is by audita querela.” Gordonier v. Billings, 77 Pa. 498, 502 (1875). And, where the Chancellor issued a writ of error, coram nobis, to the judges of the Philadelphia trial court, “the writ of error in the same court (coram nobis or vobis) was a very proper way of having the fact of the defendant’s death put upon the record and established.” Wood’s Executor v. Colwell, 34 Pa. 92, 95 (1859) (parens in original). These remain binding precedents over 150 years later.

As the writ of audita querela and writ of error, coram nobis, remain permissible forms of civil actions in Pennsylvania, the defendants’ first preliminary objection must be overruled.

B. Demurrer Based upon Affirmative Defense of Res Judicata.

Defendants, demurring to plaintiffs’ entire case on the grounds of res judicata, assert that both said quiet title action and also a separate action in the United States district court for the Western District of Pennsylvania bar the current matter. Preliminary objections in the nature of demurrer and motion for sanctions at 6. Defendants allege that plaintiffs brought an identical federal action against them on April 28, 2010. See Id. at Ex. C.

Generally, affirmative defenses, like res judicata, are only raised in new matter. See Pennsylvania rule of civil procedure 1030(a). For res judicata to be asserted, specific facts must be of record from the prior proceeding, and, ordinarily, plaintiffs’ complaints:

do not contain, and cannot properly be made to contain, the facts essential to the requisite comparison between the two suits. But, where...the plaintiffs’ complaint sets forth in detail, either directly or by reference, the facts and issues pleaded by the prior suit [sic] the question of res judicata may properly be raised by preliminary objections.

Keily v. J.A. Cunningham Equipment, Inc. 387 Pa. 598, 601, 128 A.2d 759, 760 (1957). Thus, in order to reach the merits of res judicata via preliminary objection, this court, confined, as it is, to its narrow scope of review, must find that the complaint and its exhibits, standing alone, pled all of the res judicata elements from the prior suits.

Res judicata may be asserted in either or both of two forms: technical res judicata and/or collateral estoppel. Henion v. Workers ’ Compensation Appeal Board (Firpo & Sons, Inc.), 776 A.2d 362 (Pa. Cmwlth. 2001). Defendants have raised only technical res judicata. Preliminary objections in the nature of demurrer and motion for sanctions at 5. The Commonwealth Court of Pennsylvania held:

Technical res judicata requires the coalescence of four factors: (1) identity of the thing sued upon or for; (2) identity of the causes of action; (3) identity of the persons or parties to the action; and (4) identity of the quality or capacity of the parties suing or being sued. Res judicata applies to claims that were actually litigated as well as those matters that should have been litigated. Generally, causes of action are identical when the subject matter and the ultimate issues are the same in both the old and new proceedings.

J.S. v. Bethlehem Area School Dist., 794 A.2d 938,939 (Pa. Cmwlth. 2002) (citations omitted). This is a conjunctive test. If one of the four elements is not satisfied as to any defendant, then the affirmative defense is unavailable as to that defendant.

The plaintiffs have pled all four elements from the quiet title action, because plaintiffs’ exhibit 8 makes them of record. See complaint at Ex. 8. According to senior judge Bell’s opinion, the thing sued for was title to 44 Lewicki Road, Canonsburg, Pennsylvania. Id. at p.4. The cause of action “was initiated as a quiet title action following a tax upset sale of real property.” Id. at p.l. The parties were P.S. Hysong, plaintiff, and Robert Allan Lewicki and Joseph William Lewicki, Jr., defendants, and the capacity of those parties were as adult individuals, suing and sued in their own rights. Id.

On the other hand, nowhere in the complaint or its exhibits do plaintiffs mention a separate cause of action in the federal courts. Thus, there is no competent evidence of record concerning a federal suit. Such an action, if it occurred at all, is beyond this court’s current scope of review, and whatever effect it may have upon the instant suit as res judicata cannot properly be examined for purposes of this preliminary objection.

Turning, then, to whether the quiet title action acts as res judicata, the caption of senior judge Bell’s opinion reveals that his judgment was only between defendant Hysong (plaintiff in said action) and the Lewickis (defendants in said action). See complaint at Ex. 8. Hence, party identity is established between that action and the instant one, as to Ms. Hysong. However, Washington County, its tax claim bureau, Treasurer King, and Sean Lewis were obviously not parties to the judgment of the quiet title action. Ergo, they lack party identity between the same and the case sub judice. Id. Lacking this element, those four defendants may not avail themselves of the defense of res judicata from the quiet title action. Thus, the preliminary objections of Washington County, its tax claim bureau, Treasurer King, and Sean Lewis, based upon the doctrine of res judicata, must be overruled.

As to Ms. Hysong, in the suit at bar, plaintiffs have sued her for title to the same realty for which she sued them in her quiet title action, i.e., 44 Lewicki Road, Canonsburg, Pennsylvania. Complaint at 3. Thus, there is identity of the sued-for thing. Moreover, Ms. Hysong, as an adult individual in her own right, sued the plaintiffs as adult individuals in their own rights, in her quiet title action. See complaint at Ex. 8. Here, the plaintiffs, as adult individuals in their own rights, have sued Ms. Hysong, as an adult individual in her own right. See Complaint at 1. Ergo, there is identity of capacities in the quiet title action and the matter before this court.

This leaves only the question of whether the causes of action between the two suits are identical. Causes of action are identical if “the ultimate issues in the old and new proceedings” are the same. Henion v. W.C.A.B. (Firpo & Sons, Inc.), 776 A.2d 362 (Pa. Cmwlth. 2001). A quiet title action is a “proceeding to establish a plaintiff’s title to land by compelling the adverse claimant to establish a claim or be forever estopped from asserting it.” BLACK’S LAW DICTIONARY (8th ed. 2004), “action to quiet title” at 32. Hence, the ultimate issue of the quiet title action was who — Ms. Hysong or the Lewickis — owned title to the realty in question.

Count I of the instant complaint is a petition for writ of audita querela. That writ is:

...to be delivered against an unjust judgment or execution, by setting them aside for some injustice of the party that obtained them, which could not be pleaded in bar to the action. It is a remedial process, which bears solely on the wrongful acts of the opposing party, and not upon the erroneous judgments or acts of the court.

I William Wait, A Treatise upon Some of the General Principles of the Law §1 at 489 (1885) (citations omitted). It follows, then, that the ultimate issue of an audita querela action is a prior plaintiff’s unlawful conduct in executing her judgment. Who owns title is not at issue. Instead, this court is asked ultimately to determine whether Ms. Hysong violated the law by her manner of execution. Therefore, the cause of action in Count I and the quiet title action are not the same. Ms. Hysong’s res judicata preliminary objection must be overruled, as to Count I of the complaint.

Count II of the instant complaint is a petition for writ of error, Coram Nobis. The writ of error, coram nobis:

lies in the same court where the judgment was given, when the error was not for any fault in the court, but for some defect, in the process of the cause, other than in the judgment, or for default in adjudging execution, or for misprision of the clerk, or for error in fact, in which cases, the writ may be in the same court, except where such error is in the Exchequer. But if there is error in law, or in the judgment of the court, then the writ lies to a superior court.

Day v. Hamburgh, I Brown 75, 78 (C.C.P. Philadelphia, 1808). As with plaintiffs’ petition for writ of Audita Querela, title to realty is not the issue of a writ-of-errorcoram-nobis action. To be successful, the Lewickis must prove an error in fact as to the quiet title action. If this writ issues, it will nullify the quiet title action ad initio. Hence, it does not relitigate same on its merits. Thus, as to Count II, Ms. Hysong’s res judicata preliminary objection must be overruled.

Finally, Counts III and IV of plaintiffs’ complaint are actions for declaratory judgment based upon various constitutional grounds. In Pennsylvania, this form of action derives from our declaratory judgments act. 42 Pa. C.S. §7531, et seq. That statute and others like it permit “parties to bring an action to determine their legal rights and positions regarding a controversy not yet ripe for adjudication....” BLACK’S LAW DICTIONARY (8th ed. 2004), “declaratory-judgment act” at 439. In both “Wherefore” clauses to Counts III and IV, plaintiffs pray that this court declare that they possess the realty in question. The legal rights and positions of the parties concerning possession of realty is simply another way of seeking a declaration of title to that realty. See BLACK’S LAW DICTIONARY (8th ed. 2004), “title” at 1522. As the ultimate issues in these declaratory judgment actions are who holds title to the realty in question and such was the ultimate issue in the quiet title action, there is identity of causes of action as to Counts III and IV. Therefore, Ms. Hysong’s res judicata preliminary objection must be sustained as to Counts III and IV of plaintiffs’ complaint, and they are to be dismissed with prejudice as to her.

II. Defendants’ Motion for Sanctions

The defendants’ motion for sanctions is a request of attorneys’ fees and costs, based upon 42 Pa. C.S. §2503(9). That statute is our Commonwealth’s prohibition against frivolous lawsuits. Given that their complaint has survived preliminary objections more-or-less intact, this court cannot find plaintiff’s lawsuit to be frivolous, and defendants’ motion for sanctions must therefore be denied. According, this court enters the following:

ORDER

And now, February 12, 2013, it is hereby ordered, adjudged, and decreed that, as to defendant RS. Hysong, her preliminary objection based upon res judicata is sustained, in part, and overruled, in part, to wit, Counts III and IV of plaintiffs’ complaint are dismissed with prejudice as to said defendant P.S. Hysong; that all of the other preliminary objections are overruled or waived; and that defendants’ motion for sanctions is denied.

      . In their filing, Hysong and Lewis raised an additional preliminary objection to this court’s jurisdiction for a want of service upon them. However, they neither discussed this issue in their brief nor mentioned it at oral arguments. This court cannot speculate as to the basis of parties’ arguments or provide legal theories for them; therefore, issues unsupported by accompanying arguments are waived. Van Duser v. Unemployment Compensation Board of Review, 642 A.2d 544 (Pa. Cmwlth. 1994). Hysong and Lewis’ preliminary objection to jurisdiction is waived, because they have not advanced an argument to support it.

      . The four counts are (1) a petition for writ of Audita Querela, (2) a petition for writ of [error,] Coram Nobis, (3) [Declaratory judgment that senior] judge Bell’s order is void based upon constitutional grounds, and (4) Declaratory and equitable relief for deprivation of property without due process and equal protection in violation of article I § 1 of the constitution of the Commonwealth of Pennsylvania and the Fifth and the Fourteenth Amendments of the United States constitution. See Complaint at 17.20.23. and 26.

      . Pennsylvania rule of civil procedure 1028 reads, in pertinent part:
      (a) Preliminary objections may be filed by any party to any pleading and are limited to the following grounds:
      (4) Legal insufficiency of a pleading (demurrer)....

      . An “error in fact” has a very specific meaning under the common law. It is one not brought into issue in the prior action, which, if proven true and if it had been brought into issue, would have obviously led to a different judgment. See 3 Black. Com 406, note 4 (1765-1769).

      . 42 Pa. C.S. §2503(9) provides, in pertinent, “The following pa - ticipants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter...(9) Any participant who is awarded counsel fees because the conduct of another party in commencing the matter of otherwise was arbitrary, vexatious or in bad faith.”