author: MCINERNEY, J.,

text:
    North American Knanaya Diocese Inc. v. Chirayl

      C.P. of Philadelphia County,
    June Term, 2014
    No. 00181

      Constantine Z. Economides, for plaintiffs.

      Henry I. Langsam and Denise A. Kuestner, for defendants.

      Dec. 15, 2015-
   MCINERNEY, J.,

Defendants' preliminary objections require this court to determine whether it lacks subject matter jurisdiction pursuant to the rule of deference, a legal rule which compels legal tribunals to yield to the decisions of the highest authorities of any church in matters of internal discipline, faith, and ecclesiastical rule. For the reasons below, this court finds that it does lack subject matter jurisdiction and plaintiffs’ complaint is dismissed.

Background

Plaintiff, the North American Knanaya Diocese, Inc. (“NAKDI”), is a not-for-profit corporation organized under the laws of Pennsylvania. Plaintiff, St. Mary’s Knanaya Church, Inc. (“St. Mary’s”), is also a not-for-profit corporation organized under the laws of Pennsylvania. The Church of St. Mary’s is located in Philadelphia, Pennsylvania. Whenever required, NAKDI and St. Mary’s will be identified collectively as “plaintiffs.” Defendants (hereinafter “defendants”), are board members or officers of St. Mary’s, or more simply members of that church.

The members of NAKDI and St. Mary’s appear to trace their religious lineage to ancient Christians who emigrated from upper Mesopotamia to India, possibly in the fourth century A.D. The members of NAKDI and St. Mary’s are part of a larger religious community. At the head of this larger community is a “Patriarch” who leads the Universal Syrian Orthodox Church (the “Universal Syrian Orthodox Church”), from Damascus, Syria. In India, the Universal Syrian Orthodox Church is present as an archdiocese known as the Malankara Suriyani Knanaya Samudayam (“MSKS”). The rules governing the MSKS are contained in a “constitution” which originated in 1952. The head of the MSKS is the “chief metropolitan” who leads the MSKS from the city of Chingavanam, Kerala, Indian. Under the MSKS constitution,

[t]here shall be one metropolitan as the chief/head of the community and if the Knanaya association considers it necessary, then assistant bishops can be elected as per the law, have them ordained and their duties and responsibilities shall be decided by the Metropolitan in consultation with the association.

The MSKS has under its control four distinct administrative regional units (the “Dioceses”), each of which is under the immediate authority of a “metropolitan.” Of the four Dioceses within the MSKS, three are located in India while the fourth straddles North America and Europe. Plaintiffs NAKDI and St. Mary are within the North America-and-Europe administrative regional unit of the MSKS, and the archbishop in charge of this unit is metropolitan Silvanos Ayub (“metropolitan Ayub”). According to the complaint, the North America- and-Europe administrative regional unit was created to serve “the spiritual, social, cultural and educational needs” of large numbers of MSKS members who emigrated to North America in the middle of the 20th century.

On December 19, 2011, the Patriarch of the Universal Syrian Orthodox Church issued an Apostolic Bull, No. E338/11, which stated in pertinent part:

Apostolic Benediction....
⅜⅝⅝
The metropolitans including the chief metropolitan shall not interfere in the administrative affairs including the ordination of priests and deacons and the appointment and transfer of Vicars and Assistant Vicars of the region assigned to the others....

On January 14, 2012, metropolitan Ayub forwarded directives to the Vicar of St. Maty’s, herein defendant the Reverend Father Chacko Punnose (“Father Punnose”). The directives specifically stated:

Blessings....
During my last visit to the parish...Rev. Fr. Chacko Punnose...expressed his desire to be relieved of his responsibilities as the Vicar of that parish due to medical reasons. We accepted his request....
Now we are pleased to appoint Rev, Fr. M.S. Cherian Moozhil as the vicar of that parish effective from January 15th 2012....

Plaintiffs’ complaint avers that on September 15,2013, during a body meeting of the members of St. Mary’s, defendants herein acted “in a disorderly and disruptive manner,” assaulted the new Vicar in the presence of the members and their families, and forced the premature dismissal of the meeting. As a result of this incident, Metropolitan Ayub, by a directive letter dated January 11, 2014, barred elections for the selection of new office bearers and instituted a board of receivers to administer the affairs of St. Mary’s on an interim basis. The letter, addressed to the Vicar, members of the managing committee and the faithful of St. Mary’s, specifically stated:

Blessings....
* * *
[T]he parish/church managing committee has been barred from convening any meeting since September 20, 2013. Since the official term of the church/parish committee ended on December 31, 2013, the new office bearers for the year 2014 need to be elected by the parish general body. We have decided however that it is not yet time to call the annual parish general body meeting to elect the new office bearers for the year 2014 as we are told tensions in the parish are still high.
As an interim measure, we hereby appoint [a] board of receivers...with effect from January 12, 2014....
The outgoing treasurer and secretary are hereby directed to hand over all documents, accounts and remaining funds to the board of receivers immediately....

On January 19, 2014, the chief metropolitan in India countermanded the above-quoted directives and restored the outgoing office bearers who had been removed by metropolitan Ayub. The countermanding directives from the chief metropolitan specifically stated:

Blessings....
This I am writing in reference to [metropolitan Ayub’s directives] dated 11-01-2014 wherein [Metropolitan
Ayub] has barred convening the parish annual general body meeting to elect the office bearers for the year 2014 but appointed a board of receivers...
[W]e hereby restore the authority and responsibilities of the present democratically elected board of directors of the Parish (managing committee) till a new managing committee shall function as per the church laws and corporate formalities....

On F ebruary 15,2014, both the chief metropolitan from India, and metropolitan Ayub from North America, issued conflicting directives to St. Mary’s. The directives issued from India by the chief metropolitan stated:

[W]e hereby relieve the present Vicar of the Church, Rev. Fr. E.M. Abraham Edarhundimepurathu and appoint Rev. Fr. Chacko Punnose...as the vicar of St. Mary’s...with effect from 15.2.2014.

By contrast, the directives issued on the same day from North America by Metropolitan Ayub stated:

Blessings....
Dear Rev. Fr. Chacko Punnose....
We want to remind you about our Bull No. SA69/13 dated November 4th 2013 which clearly prohibits you from conducting any sacraments of the Syrian Orthodox Church without our prior written permission in any of the parishes of North America, Canada and Europe region.
⅝⅜⅝
We also remind you about the apostolic Bull No. 338/11 dated December 19th, 2011 oí His Holiness Moron Mor Ignatius Zakka I Iw as, Patriarch of Antioch and All the East, the Supreme Head of our Church which states “We have already assigned the charge of the Knanaya churches in North America, Canada & Europe to Mor Silvanos Ayub by an earlier Apostolic Bull. The Metropolitans including the Chief Metropolitan shall not interfere with the administrative affairs... including the appointment and transfer of Vicars and Assistant Vicars of the Regions assigned to others”

On June 2, 2014, plaintiffs filed the instant complaint, according to the complaint, defendants filed false statements with the Pennsylvania Department of State in an effort to amend St. Mary’s articles of incorporation and to achieve unlawful control of the church and its assets. The Wherefore Clause of the complaint prays for the following types of relief:

Plaintiffs respectfully request that this honorable court enter an order:
(a) Declaring that metropolitan Silvanos is the highest hierarch in the North American Knanaya Diocese;
(b) Declaring that St. Mary’s is under the exclusive jurisdiction of the North American Knanaya Diocese and its metropolitan;
(c) Declaring that only clergy appointed by the metropolitan of the North American Knanaya Diocese can be assigned to and conduct services at St. Mary’s;
⅜⅜⅝
(g) Prohibiting defendants from holding themselves out as the rightful agents and representatives of St. Mary’s;
(h) Prohibiting defendants from holding themselves out as the rightful agents and representatives of St. Mary’s in letters, emails, and other communications addressed to the members of St. Mary’s....

In addition, the afore-mentioned Wherefore Clause asks this court to direct defendants to immediately return any church-owned property to plaintiffs, including “any and all keys, funds, minute books, rosters [and] directories.”

On July 31, 2014, after commencement of the instant action, the Patriarch of the Universal Syrian Orthodox Church issued an Apostolic Bull, No. EI29/14, which stated in pertinent part:

Apostolic Benediction....
⅜⅜⅜
We wish to reaffirm that Malankara Syrian Knanaya Archdiocese is and will continue to be one entity with his Eminence Mor. Severios Kuriakose as the chief metropolitan. It has four administrative regional units with...Mor. Silvanos Ayub as the Metropolitan of the North America, Canada and Europe region....

On July 9,2014, defendants filed preliminary obj ections to the complaint.

Discussion

At the onset, the court notes that

[preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom. Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.

Defendants’ preliminary assert that this court lacks subject matter jurisdiction under the rule of deference, a rule, adopted by the U.S. Supreme Court and followed in Pennsylvania, which compels legal tribunals to yield to the decisions of the highest authorities of any church in matters of internal discipline, faith, and ecclesiastical rule.

The law on the rule of deference is well settled:

whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them in their application to the case before them.
[T]he first and fourteenth amendments [of the United States Constitution] permit hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters. When this choice is exercised and ecclesiastical tribunals are created to decide disputes over the government and direction of subordinate bodies, the constitution requires that civil courts accept their decisions as binding upon them.

This court has reviewed the evidence of record to determine whether it should assert subject matter jurisdiction over the issues in the instant litigation, or whether it should defer to the highest judicatory authorities within the Universal Syrian Orthodox Church. Upon a review of that record, this court has found the existence of patent ambiguities involving questions of discipline, or faith, or ecclesiastical rule, custom, or canonic law, which stem specifically from the appointment and subsequent removal of a board of receivers of St. Mary’s, as well as the appointment and subsequent removal of the vicars in charge of that church. For example, the highest written laws of the MSKS, as embodied in its constitution, declare that the chief metropolitan of the MSKS is empowered with authority and greater status over any assistant bishop whom he may ordain and task with duties and responsibilities. However, the authority granted to the chief metropolitan under the MSKS constitution appears to be undermined by the Patriarch’s Apostolic Bull No. E338/11, dated January 19, 2014, which precludes the chief metropolitan from interfering with the appointment and transfer of vicars in the regions assigned to other metropolitans. In addition, a second ambiguity appears on the face of the record: while the afore-mentioned Patriarch’s Bull No. 338/11 forbids the chief metropolitan from interfering in matters involving the appointment and transfer of vicars in regions assigned to other Metropolitans, a subsequent Patriarch’s Bull, No. EI29/14. “reaffirms” that the Malankara Syrian Knanaya Archdiocese, including NAKDI, and St. Mary’s, “is and will continue to be one entity with His Eminence Mor. Severios Kuriakose as the chief metropolitan,” This last Bull suggests that the chief metropolitan enjoys absolute primacy over the MSKS and St. Mary’s in contradiction with the injunctions contained in the earlier Apostolic Bull No. 338/11 dated December 11, 2011. Thus, it appears on the face of the record that the highest judicatory authority within the Universal Syrian Orthodox Church, the Patriarch, has provided directives explaining the hierarchical structure thereof, albeit in what appear to be ambiguous and contradictoiy statements. However, no matter how the Patriarch has spoken, this court must adhere to the well established rule of deference unless it becomes convinced otherwise by the arguments offered by plaintiffs in their response in opposition to the preliminaiy objections.

In the response in opposition to the preliminary obj ections, plaintiffs argue that this court has subject matter jurisdiction. Plaintiff rely on Poesnecker v. Ricchi, 158 Pa. Cmwlth. 459, 631 A.2d 1097 (Pa. Cmwlth. 1993) to assert that this court has subject matter jurisdiction to declare metropolitan Ayub as the highest authority over NAKDI and St. Mary’s, and that his decisions, including the appointments of a board of receivers and a Vicar, may not be challenged by defendants. Plaintiffs’ reliance on Poesnecker is misplaced. Reliance on Poesnecker is misplaced because the rule of deference was not applicable in that case.

InPoesnecker, the “Supreme Grand Master” of apartly-religious fraternal organization had been voted out of office by a council of Seven (the “council”). Subsequently, the Supreme Grand Master instituted an action against the individual members of that council. In the action, the Supreme Grand Master prayed for relief which included a declaration enjoining the dissident members of the council from interfering with his position as the highest authority in the organization. The court agreed with the Supreme frand master and ordered that his supreme authority could not be disturbed. The members of the council appealed, and the issue before the Commonwealth Court was whether the trial court had violated the Unites States Constitution by “improperly determining the entirely religious question of who should be the spiritual leader” of the fraternal organization. The Commonwealth Court first noted that it was bound under the rule of deference to accept the decisions of the “highest judicatories of a religious organization of hierarchical policy on matters of discipline, faith, internal organization or ecclesiastical rule.” Next, the Commonwealth Court noted that church matters “involving agreements on will, trusts, contracts and property ownership are questions of civil law and are not predicated on any religious doctrine.” At last, the Commonwealth Court inquired into whether the decision to remove the Supreme Grand Master had been made by the highest judicatories within the fraternal organization. To determine whether the decision to remove the Supreme Grand Master had been decided by the highest judicatories, the Commonwealth Court examined the laws binding the fraternal organization -in this case, the “organic laws” of that fraternity. The court analyzed the preamble to the organic laws and determined that the fraternal organization was hierarchical in nature and the council was subordinate to the Supreme Grand Master. Accordingly, the Commonwealth Court determined that the decision to remove the Supreme Grand Master had been made by a body which was not the highest judicatory authority within the fraternal organization. Consequently, the Pennsylvania Commonwealth Court agreed with the trial court and held that the removal of the Supreme Grand Master was invalid because it had been decided by a body lacking the status of highest judicatory authority. In other words, the Pennsylvania tribunals were not bound in that action by the rule of deference because the decision to remove the Supreme Grand Master had been rendered not by a body empowered with the highest judicatory authority, but by a body of inferior rank.

In conclusion, whereas the Pennsylvania tribunals in Poesnecker were not bound by the rule of deference, this court is bound by that rule because the highest judicatory authority within the Universal Syrian Orthodox Church -namely, the Patriarch, has defined the hierarchical structure within the Universal Syrian Orthodox Church in general, and the MSKS and St. Mary’s in particular, with ambiguous, if not contradictory statements. As such, this court finds that it cannot decide the present dispute without entangling itself in open questions of church structure and therefore finds this court lacks subject matter jurisdiction over the dispute in this action and sustains the preliminary objections of defendants.

The court shall issue a simultaneous order consistent with this memorandum opinion.

ORDER

And now, this 15th day of December, 2014, upon consideration of the preliminary objections of defendants, the response in opposition of plaintiffs, the reply brief of defendants, and all matters of record, it is ordered that the preliminary objections are sustained and plaintiffs’ complaint is dismissed in its entirety.

      . Letterhead, Patriarch Bull No. El 29/14, attached as Exhibit X to the preliminary objections of defendants.

      . The MSKS was elevated to the status of archdiocese by a Patriarch Bull dated January 10, 2007, as restated by Patriarch Bull No. E338/11 dated 19 December 2011 attached as Exhibit A to plaintiff’s complaint.

      . Constitution of the Malankara Suriani Knanaya Community, ¶ 2, Exhibit E to the preliminary objections of defendants.

      . Letterhead from Directive Letter No. 109/14, issued by the chief metropolitan of the MSKS, dated 12-16-2014, Exhibit Q to the preliminary objections of defendants.

      . Constitution of the Malankara Suriani Knanaya Community, ¶ 82, Exhibit E to the preliminary objections of defendants.

      . “In ecclesiastical language, [the term Metropolitan] refers to whatever relates to the metropolis, the principal city, or see, of an ecclesiastical province; thus we speak of a metropolitan church, a metropolitan chapter, a metropolitan official, etc. The word metropolitan, used without any qualificative, means the bishop of the metropolitan see, now usually styled archbishop.” Catholic Encyclopedia (1913), ed. August Boudinhon, as reported at http://www.catholic.org/encyclopedia/ view.php?id=7939.

      . Patriarch Bull No. E338/11 dated 19 December 2011, attached as Exhibit Ato plaintiff’s complaint. The Bull specifically stated: “[w]e have already assigned the charge of the Knanaya Churches of North America, Canada & Europe to Mor. Silvanos Ayub by an earlier Apostolic Bull.”

      . Complaint, footnote 3.

      . Patriarch Bull No. E338/11 dated 19 December 2011, attached as Exhibit A to plaintiff’s complaint.

      . Directive Letter from metropolitan Ayub, dated January 14, 2012.

      . Complaint, ¶¶ 42-45.

      . Directive letter from metropolitan Ayub dated January 11,2014, Exhibit K to the complaint.

      . Directive letter from the chief metropolitan dated January 19, 2014, Exhibit O to the preliminary objections of defendants.

      . Directive Letter from the chief metropolitan dated Februaiy 15, 2014, Exhibit P to defendants’ preliminary objections.

      . Letter dated February 14, 2014, from metropolitan Ayub to the Rev. Fr. Chacko Punnose, Exhibit O to the complaint.

      . Id. ¶¶ 63-64. The alleged fraudulent filings with the Pennsylvania Department of State are attached to the complaint as Exhibit N.

      . Complaint, Wherefore Clause.

      . Id. ¶ (i).

      . Patriarch’ Apostolic Bull No. EI29/14, dated July 31, 2014, Exhibit X to the preliminary objections of defendants.

      . Feingold v. Hendrzak, 2011 Pa. Super 34, 15 A.3d 937, 941 (2011).

      . Presbytery of Beaver-Butler of United Presbyterian Church in U.S. v. Middlesex Presbyterian Church, 507 Pa. 255, 259, 489 A.2d 1317, 1319 (1985) (citing Watson v. Jones, 80 U.S. 679; 20 L.Ed. 666 (13 Wall. 1871)).

      . Serbian E. Orthodox Diocese for U. S. of Am. & Canada v. Milivojevich, 426 U.S. 696, 724-25, 96 S. Ct. 2372, 2387-88, 49 L. Ed. 2d 151 (1976).

      . MSKS Constitution, 1 82, Exhibit A to Plaintiffs’ complaint.

      . Patriarch Bull No. E338/11 dated 19 December 2011, attached as Exhibit A to plaintiff’s complaint.

      . Patriarch’s Apostolic Bull No. EI29/11 dated July 31, 2014, Exhibit X to the preliminary objections of defendants.

      . Plaintiffs’ memorandum of law in support of their response in opposition to defendants’ preliminary objections, pp. 5-12.

      . Poesnecker v. Ricchi, 158 Pa. Cmwlth. 459, 456; 631 A.2d 1097, 1101 (Pa. Cmwlth. 1993)

      . Id. at 466; 1101.

      . Id.

      . Id. at 469-470; 1103.

      . Id. at 470; 1103.

        . Id. at 471; 1103.

      . Id. at 471; 1103-1104.


source: Caselaw Access Project

author: BUTTS, J.,

license: Public Domain

text:
    Commonwealth v. Lucas

      C.P. of Lycoming County,
    No. CR-2072-2013

      Dec. 31, 2015-
   BUTTS, J.,

The defendant filed a motion to suppress evidence on June 2, 2014. A hearing on the motion was held on October 31, 2014.

I. Background

On August 4, 2011, Eric R. Linhardt, the District Attorney of Lycoming County, moved for the appointment of special county detectives under 16 RS. § 1441. That same day, this court appointed the following individuals as special county detectives:

(1) Any and all members of the Old Lycoming Township Police Department;
(2) Any and all members of the Williamsport Bureau of Police;
(3) Any and all members of the South Williamsport Borough Police Department;
(4) Any and all members of the Montours ville Borough Police Department;
(5) Any and all members of the Tiadaghton Valley Regional Police Department;
(6) Any and all members of the Muncy Borough Police Department;
(7) Any and all members of the Montgomery Borough Police Department;
(8) Any and all members of the Hughes ville Borough Police Department;
(9) Any and all members of the Muncy Township Police Department;
(10) Any and all members of the Penn College Police Department;
(11) Any and all members of the Duboistown Borough Police Department.

The above individuals were appointed as special county detectives for the purpose of working sobriety checkpoints and DUI roving patrols in the various municipalities of Lycoming County. Linhardt testified that he received the approval of the salary board before the above individuals were appointed.

Officer Robert Cochran (Cochran) of the Old Lycoming Township Police Department was assigned to work on the September 20, 2013 and September 21, 2013 sobriety checkpoint in Williamsport. There was not much activity at the checkpoint, so Cochran was told go on patrol and look for impaired drivers. At approximately 1:00 A.M. on September 21, 2013, Cochran was driving a patrol car east on Washington Boulevard in the city of Williamsport. Cochran stopped at the intersection of Washington Boulevard and Penn Street. While stopped, Cochran saw a vehicle turn right from Penn Street onto Washington Boulevard. He did not see a turn signal as the vehicle turned. Cochran stopped the vehicle as it began to proceed east on Washington Boulevard. He identified the defendant as the driver of the vehicle.

In his motion, the defendant argues that he was stopped in violation of the Municipal Police Jurisdiction Act because Cochran was outside of his jurisdiction. He argues that this court’s order appointing the special county detectives does not conform to 16 P.S. § 1441 because it does not identify the person to be appointed as a special detective. In addition, the defendant argues that this court’s order does not justify the stop because the stop occurred more than two years after the order, and 16 P.S. § 1441 allows for the appointment of a special detective for a “temporary” assignment.

During the suppression hearing, the defendant testified that he used a signal as he was turning onto Washington Boulevard. He argued that because Cochran was facing the driver side of the vehicle, Cochran could not see whether he used a right turn signal. The defendant further argued that because Cochran could not see whether he used a right turn signal, Cochran did not have reasonable suspicion or probable cause to stop him. The Commonwealth argued that Cochran could have determined whether the defendant used a turn signal. Additionally, it argues that even if Cochran could not see the turn signal when the defendant started the turn, Cochran still had reasonable suspicion to stop the defendant because he could see that the turn was not completed with a turn signal.

II. Discussion

A. Officer Cochran had Reasonable Suspicion that the Defendant Violated the Motor Vehicle Code.

“Whenever a police officer...has reasonable suspicion that a violation of [the motor vehicle code] is occurring or has occurred, he may stop a vehicle...for the purpose of checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or engine number or the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.” 75 Pa. C.S. § 6308(b). “Section 6308(b) allows a police officer to conduct a vehicle stop if he has reasonable suspicion to believe that a violation of the motor cehicle code is occurring or has occurred.” Commonwealth v. Holmes, 14 A.3d 89, 95 (Pa. 2011).

“Upon a roadway no person shall turn a vehicle.. .without giving an appropriate signal in the manner provided in this section.” 75 Pa. C.S. § 3334(a). “At speeds of less than 35 miles per hour, an appropriate signal of intention to turn right or left shall be given continuously during not less than the last 100 feet traveled by the vehicle before turning.” 75 Pa. C.S. § 3334(b).

Here, Cochran had reasonable suspicion that the defendant violated the motor cehicle code because he noticed that the defendant turned onto Washington Boulevard without using a turn signal. The defendant’s argument that Cochran could not see whether he used a turn signal is unpersuasive because Cochran testified that he would have been able to see the flashing of the signal since it was nighttime, and he was able to see the right rear of the vehicle before a signal would have switched off.

B. The Stop did not Violate the Municipal Police Jurisdiction Act.

“Any duly employed municipal police officer who is within this Commonwealth, but beyond the territorial limits of his primary jurisdiction, shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office as if enforcing those laws or performing those functions within the territorial limits of his primary jurisdiction in the following cases: (1) Where the officer is acting pursuant to an order issued by a court of record....” 42 Pa. C.S. § 8953(a)(1).

Here, Cochran was acting pursuant to this court’s order of August 4, 2011, which appointed any and all members of the Old Lycoming Township Police Department as special county detectives for the purpose of working DUI roving patrols. Therefore, the stop did not violate Municipal Police Jurisdiction Act.

III. Conclusion

Cochran had reasonable suspicion that the defendant violated the motor vehicle code. The stop did not violate the Municipal Police Jurisdiction Act because Cochran was acting pursuant to a court order.

ORDER

And now, this day of December, 2014, based upon the foregoing opinion, it is ordered and directed that the defendant’s motion to suppress evidence is hereby denied.


author: BELTRAMI, J.,

text:
    Bubba v. Leendertz

      C.P. of Northampton County,
    No. C-48-CV-2014-2037

      Charles J. Fonzone, for plaintiffs.

      Ralph J. Bellafatto, for defendants.
    Dec. 11, 2014-
   BELTRAMI, J.,

This matter is before the court on defendants’ motion for judgment on the pleadings (“motion”), filed on August 11,2014. Defendants filed a brief with their motion and a supplemental brief on September 18, 2014. Plaintiffs filed a nrief on August 29, 2014, and a reply brief on September 29, 2014. Oral argument was heard on September 2,2014. For the reasons that follow, defendants’ motion will be granted.

The matter currently before the court arises out of a related action, Karam v. Gennaro, filed in this court on January 22, 2013, at docket number C-48-CV-2013-0766 (“Related Action”). (See Compl. ¶ 3, Ex. A; Answer ¶ 3.) Related action is a premises liability and wrongful death action brought on behalf of the decedent, Selma Karam, who was injured in and later died as a result of a fall that occurred on February 23,2011. (Compl, Ex. Afl 11-12.) Plaintiffs own and operate Pizza Joe’s Italian Restaurant (“Pizza Joe’s”), where Selma Karam fell. (Id. ¶¶ 3, 5.) Plaintiffs are the defendants in related action. (Id. ¶¶ 3-10.) The complaint in related action was filed on January 22, 2013.

The instant complaint was filed on March 10, 2014, and was served on defendants on March 26, 2014. Selma Karam was the mother of defendants. (Compl. ¶ 11; Answer ¶ 13.) Defendants brought their mother to Pizza Joe’s on the date of her fall. (Compl. ¶ 13; Answer ¶ 13.) Plaintiffs allege that defendants’ negligence was the cause of Ms. Karam’s injuries, in that defendants instructed Ms. Karam, who was in a frail state, to leave Pizza Joe’s without supervision or assistance. (Compl. ¶¶ 13-29.) As a result, plaintiffs seek damages from defendants on the theory that defendants are “solely liable for any injuries sustained by their mother” or are, alternatively, “liable to, with, over to, and/or jointly and jointly and severally liable with” the plaintiffs. (Id. ¶¶ 34-35.)

Defendants filed an answer with new matter on July 7, 2014. In it, defendants deny any legal responsibility for the injuries that befell their mother. (Answer ¶ 7.) In their new matter, defendants aver: “plaintiffs’ claims are untimely, and therefore, barred by the application of the appropriate statute of limitations. The date of the accident at issue is February 23, 2011. Plaintiffs’ complaint was filed on March 10, 2014.” (Id. ¶ 37.) The instant motion was filed on August 11, 2014, wherein defendants state that “plaintiffs did not timely join defendants as additional defendants [in related action] as required by Pennsylvania Rule of Civil Procedure 2252.” (Mot. ¶ 8.)

Amotion for judgment on the pleadings may be granted when the pleadings demonstrate that there is no genuine issue of fact and the moving party is entitled to judgment as a matter of law. Urbano v. STAT Courier, Inc., 878 A.2d 58, 60 (Pa. Super. 2005). In ruling on such a motion, the court may only consider the pleadings and any documents or exhibits attached to the pleadings. Consolidation Coal Co. v. White, 875 A.2d 318, 325 (Pa. Super. 2005). The court “must accept as true all well pleaded statements of fact, admissions, and any documents properly attached to the pleadings presented by the party against whom the motion is filed, considering only those facts which were specifically admitted.” Shirley by Shirley v. Javan, 684 A.2d 1088, 1089 (Pa. Super. 1996).

Initially, the court notes that plaintiffs’ complaint consists of thirty-five numbered paragraphs followed by a single claim for relief. In that claim for relief, plaintiffs “respectfully request that any verdict and/or judgment rendered [in related action] be against defendants . . . solely, or, in the alternative, jointly and/or severally liable with, and/or over to, plaintiffs.” (Compl. at 6.) This claim for relief, combined with the fact that plaintiffs filed a motion to consolidate this case with related action, which the honorable Jennifer R. Sletvold denied on August 27, 2014, makes it apparent that plaintiffs’ purpose in filing this suit is to, in essence, join defendants as “additional defendants” in related action, despite the fact that plaintiffs never attempted to timely join defendants as additional defendants in related action, pursuant to Pennsylvania Rule of Civil Procedure 2252(a), which states:

[A]ny party may join as an additional defendant any person not a party to the action who may be...solely liable on the underlying cause of action against the joining party, ...or liable to or with the joining party on any cause of action arising out of the transaction or occurrence...upon which the underlying cause of action against the joining party is based.

Pa.R.C.P. No. 2252(a). Pennsylvania Rule of Civil Procedure 2253(a) states that

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

Pa.R.C.P. No. 2253(a). The complaint in related action was filed on January 22,2013, and was served on January 30, 2013. The pleadings in related action are now closed, and there is neither a court order nor an agreement of the parties permitting a joinder of defendants as additional defendants in related action. Thus, plaintiffs cannot use the instant suit to circumvent Rule 2253.

Turning to plaintiffs’ first claim for relief in the instant case, that defendants be held “solely liable” for their mother’s fall, the court notes that the sole basis upon which plaintiffs request this relief is defendants’ alleged negligence. The statute of limitations for a negligence claim is two years. 42 Pa.C.S.A. § 5524(2). According to plaintiffs’ complaint, defendants’ mother fell on February 23, 2011. (Compl., Ex. A ¶ 11.) Because defendants were not joined as additional defendants in related action prior to the expiration of the statute of limitations and because plaintiffs’ complaint in this case was filed more than two years after defendants’ mother’s fall, there is no circumstance under which defendants can be held “solely liable” for their mother’s fall. Therefore, the pleadings demonstrate that there is no genuine issue of fact and that defendants are entitled to judgment as a matter of law on plaintiffs’ claim that defendants are solely liable to their mother in related action.

Because defendants cannot be held “solely liable,” all that remains, in this case, are plaintiffs’ claims that defendants are liable to them based on indemnification or contribution. Only one of these theories may ultimately stand, as indemnification and contribution are alternative remedies. Stewart v. Uniroyal, Inc., 72 Pa. D. & C.2d 206, 214 (C.P. of Allegheny Cnty. 1975) aff’d, 356 A.2d 821 (Pa. Super. 1976). “Indemnity is a common law remedy which shifts the entire loss from one who has been compelled, by reason of some legal obligation, to pay a judgment occasioned by the initial negligence of another who should bear it.” Willet v. Pa. Med. Catastrophe Loss Fund, 702 A.2d 850, 854 (Pa. 1997) (citing Builders Supply Co. v. McCabe, 77 A.2d 368, 370 (Pa. 1951)). Plaintiffs cite to Builders Supply in support of their argument that they are entitled to common law indemnification. With regard to indemnification claims, Builders Supply makes clear that

the important point to be noted in all the cases is that secondary as distinguished from primary liability rests upon a fault that is imputed or constructive only, being based on some legal relation between the parties, or arising from some positive rule of common or statutory law or because of a failure to discover or correct a defect or remedy a dangerous condition caused by the act of the one primarily responsible. In the case of concurrent or joint tortfeasors, having no legal relation to one another, each of them owing the same duty to the injured party, and involved in an accident in which the injury occurs, there is complete unanimity among the authorities everywhere that no right of indemnity exists on behalf of either against the other; in such a case, there is only a common liability and not a primary and secondary one, even though one may have been very much more negligent than the other. The universal rule is that when two or more contribute by their wrongdoing to the injury of another, the injured party may recover from all of them in a joint action or he may pursue any one of them and recover from him, in which case the latter is not entitled to indemnity from those who with him caused the injury.

Builders Supply Co., 77 A.2d at 371 (Pa. 1951). In this case, as well as in related action, there are no facts pleaded from which one could find or infer that if liability were to be found on the part of either plaintiffs or defendants, it would be due to a legal relationship between them or that it would be a fault that is merely constructive or imputed. Rather, the parties here are separate entities with no legal connection to one another. Thus, the only type of fault-sharing that could occur between plaintiffs and defendants is not contemplated in the law of indemnification. Accordingly, the pleadings demonstrate that there is no genuine issue of fact and that defendants are entitled to judgment as a matter of law on plaintiffs’ claim for indemnification.

With regard to plaintiffs’ claim for contribution, it is well-established in Pennsylvania that

an action for contribution is based on equitable principles and sounds in contract rather than tort law. Pennsylvania law provides for a right of contribution among joint tortfeasors if: (1) two or more persons are found jointly and severally liable in tort and (2) if one of the tortfeasors has paid more than his or her pro rata share of the common liability. A joint tortfeasor has the option of pursuing his or her right for contribution either by maintaining a separate and independent action or by having the plaintiff’s judgment marked to the use of the party seeking contribution. A joint tortfeasor’s right to contribution is distinct from the original action. Because of this distinction, the statute of limitations on a contribution action begins to run only when a judgment is entered in favor of the plaintiff in the original action.
The statute of limitations for a contribution action is statutorily governed by 42 Pa.C.S.A. § 5527, which provides that a six year period applies to all civil actions which are not subject to another limitation specified by statute. Because a contribution action is not specifically named within a particular limitations statute, the applicable statute of limitations is § 5527. Accordingly, in an action for contribution, the applicable limitation period is six years commencing from the entry of judgment against the joint tortfeasors.

Pa. Nat’l Mut. Cas. Ins. Co. v. Nicholson Constr. Co., 542 A.2d 123, 125-26 (Pa. Super. 1988) (citations omitted). “[C] ontribution [is] available against any defendant, even one the original plaintiff did not sue.” MIIX Ins. Co. v. Epstein, 937 A.2d 469, 472 (Pa. Super. 2007). In such a case, “[t]he right of contribution...may be...pursued in a separate action by an original defendant who has previously been held liable to the original plaintiff.” Id. (quoting Bianculli v. Turner Constr. Co., 640 A.2d 461, 465 (Pa. Super. 1994) (emphasis added)); see also 42 Pa.C.S.A. § 8324(b) (tortfeasor not entitled to contribution until he has paid judgment or has paid more than his pro rata share thereof).

Plaintiffs argue that a contribution claim is proper at this time despite the fact that they have not been held liable in related action. In support of this contention, plaintiffs cite to several cases. All of these cases, however, are inapposite, as they each involve claims for contribution brought against a party that was either part of the underlying action or was in the process of being joined as an additional defendant in that action. Falciani v. Phila. Transp. Co., 189 F.Supp. 203 (E.D. Pa. 1960), involved a contribution claim where both defendants were already parties to the underlying tort action. The court noted that a conditional judgment could be entered to allow for an expedited resolution of a contribution claim between the two defendants in the event that both were found liable in the underlying action. Id. at 204. This is not analogous to the instant case because, as discussed above, defendants are not parties in related action.

In Trustees of the Int’l Bhd. of Elec. Workers Local 98 Pension Plan v. Aetna Cas. & Sur. Co., No. CIV.A. 97-7407, 1998 WL 614769, *1 (E.D. Pa. Sept. 14, 1998), a defendant in the underlying action filed a complaint seeking contribution and indemnity against a third-party defendant pursuant to Federal Rule of Civil Procedure 14, the federal equivalent of Pennsylvania Rule of Civil Procedure 2252. Because the third-party defendant was timely joined as an additional defendant, the court held that the contribution claim was not premature. Id. at *2. Plaintiffs interpret this holding to establish that “a party need not await the outcome of [a] plaintiff’s claim against it before it asserts its own third-party claim for contribution.” (Pl.’s Reply Brief at 4.) As noted above, however, the court’s decision was made in the context of a timely joinder of an additional defendant in the underlying action. Where, as here, a timely joinder has not occurred, a defendant may not bring a contribution claim against a third party before being held liable because allowing the same could result in a situation where the contribution action progresses only to have the underlying action resolve in favor of the party seeking contribution, rendering the contribution claim moot. This concern is not present where a timely joinder has occurred, as the liability of the defendant and the additional defendant are adjudicated in the same case.

Plaintiffs also cite to Hileman v. Morelli, 605 A.2d 377 (Pa. Super. 1992), for the proposition that their contribution claim is not premature. In Hileman, a decedent’s estate brought an action against the estate of a physician and a hospital. Id. at 319. The trial court permitted the plaintiff to discontinue the claim against the hospital, leaving the physician’s estate as the only defendant. Id. at 320. On appeal, the Superior Court held that, because the statute of limitations had expired, the trial court improperly permitted the discontinuance, because it extinguished the physician’s estate’s right to claim that the hospital was solely liable to the plaintiff in a joinder complaint and would limit the claims in such a complaint to contribution or indemnity. Id. at 382-86. Thus, Hileman, like the other two cases cited by plaintiffs, dealt with a contribution claim asserted in the underlying action brought by the plaintiff, not an independent contribution action by a defendant against a third party not named in the plaintiff’s complaint. In fact, Hileman runs contra to plaintiffs’ argument that their contribution claim is not premature when it states that “[t]he claim of the original defendant for contribution or indemnity is the original defendant’s own separate cause of action which does not even arise until he has been held liable to plaintiff.'1'’ Id. at 382 (emphasis added).

For all of the above reasons, the pleadings demonstrate that there is no genuine issue of fact and that plaintiffs have not established a right to contribution against defendants at this time.

WHEREFORE, the court enters the following:

ORDER OF COURT

And now, this 11th day of December, 2014, “defendants, Lynette Leendertz’s and Stephanie Rodriguez’s motion for judgment on the pleadings pursuant to Pennsylvania Rule of Civil Procedure 1034,” filed on August 11, 2014, is hereby granted. Judgment is hereby entered in favor of defendants and against plaintiffs. The judgment is without prejudice with regard to plaintiffs’ claim for contribution.

      . The court notes that although the claim that defendants are “solely liable” was pleaded in paragraph thirty-four of plaintiffs’ complaint, plaintiffs presented no legal authority or theoiy in their briefs that would allow for such a claim at this time.

      . The court notes that even if they were relevant, as federal district court cases, Falciani and Trustees are not binding on this court. Chiropractic Nutritional Assocs., Inc. v. Empire Blue Cross & Blue Shield, 669 A.2d 975, 980 (1995) (“[Decisions of the federal courts lower than the United States Supreme Court are not binding on Pennsylvania courts.”).


author: MINORA, J.,

text:
    Guffey v. Kyriazis

      C.P. of Lackawanna County,
    No. 2009-2308

      Kevin P. Foley, for plaintiffs.

      Edward S. Neyhart, for defendants.
    Dec. 23, 2014-
   MINORA, J.,

Before the court is defendant’s petition for appeal of special trial master (STM) for discovery, attorney Henry Burke’s order dated May 8, 2014. In that order, STM Burke entered an order imposing potential sanctions upon the defendant if the information ordered to be produced was not produced within thirty (30) days. The order also precluded defendant from presenting the testimony of Amir Fayyazi, M.D. For the reasons that follow, defendant’s petition for appeal of the STM’s order is granted and affirmed and it is ordered that defense counsel is to pay for plaintiffs legal expenses associated with the disco veiy regarding VS AS and Amir Fayyazi, M.D.

I. FACTUAL AND PROCEDURAL HISTORY

This case arises from a motor vehicle accident which occurred on November 5, 2007 at 2:35 A.M. William Guffey was driving, and Joyce Guffey (hereinafter “plaintiffs”) was a passenger in their 2003 Ford Escape. Plaintiffs were stopped at a traffic light on the intersection of North Main Avenue and Wood Street in Scranton, Pennsylvania. At that time, Steven Kyriazis (hereinafter “defendant Kyriazia”), operating a vehicle jointly owned by him and Amy Marta (hereinafter “defendant Marta”), rear-ended plaintiffs’ vehicle, pushing the vehicle into the intersection. Plaintiffs’ complaint alleged defendant Kyriazis fled the scene of the accident to conceal his intoxication. Defendant Kyriazis allegedly advised defendant Marta of what had happened and sent her back to the scene of the accident to “cover up” the fact that he was operating the vehicle. Plaintiffs’ complaint also alleged that defendant Marta negligently entrusted her vehicle to defendant Kyriazis, knowing that he was under the influence but allowing him to operate her vehicle nonetheless. Both plaintiffs suffered aggravations of preexisting neck injuries as a result of the accident.

On November 21,2008, defendant Kyriazis pled guilty to a DUI and admitted in his guilty plea colloquy that he was aware of and knew that plaintiffs were injured in the collision and fled the scene.

All defendants filed preliminary objections to plaintiffs’ complaint on May 15, 2009, which were sustained in part and denied in part. Plaintiffs filed a certificate of readiness for jury trial on November 2, 2011. The certificate of readiness was subsequently stricken by order of this court on November 18, 2011.

On March 16, 2012, all defendants filed a motion for partial summary judgment. On September 21, 2012, the court granted partial summary judgment in favor of defendants, ruling that defendant Marta did not breach a negligent entrustment duty to plaintiffs because there was not sufficient evidence to show that defendant Kyriazis was intoxicated at the time the motor vehicle was entrusted to the defendant. Therefore that was no evidence to support a claim of punitive damages. On October 2, 2012, plaintiffs filed a motion to amend the order for purposes of taking an interlocutory appeal. All defendants filed a response to the motion November 1, 2012. The court denied the interlocutory appeal by order dated December 3,2012 and the order was sustained by the Superior Court denying the appeal attempt.

Not content to have fought over preliminary objections, a motion for partial summary judgment and an interlocutory appeal, the parties decided to focus their disputes on discovery issues. On April 7, 2011, our STM issued a Rule to Show Cause upon defendant Kyriazis and his counsel attorney Edward Neyhart why plaintiffs’ motion to compel and/or sanctions should not be granted. On May 9, 2011, a second motion to compel brought by plaintiffs seeking the Main Street address for defendant Kyriazis was granted by the STM with the sought after address to be provided within twenty (20) days.

Pursuant to Pa.R.C.P. 4010, plaintiffs submitted to a defense medical examination performed by Dr. Fayyazi on May 24, 2012. On May 25, 2012, plaintiffs served all defendants with interrogatories regarding financial information and past litigation experiences of Dr. Fayyazi and his medical group VS AS. On June 21, 2012, in anticipation of defendants’ objection to the interrogatories, plaintiffs filed a brief in opposition to any objections to the interrogatories defendants may have had. On July 3, 2012, defense counsel provided the anticipated motion, asserting reasons why certain interrogatories were not compliant with Pa.R.C.P. 4005.

On July 23, 2012, our STM issued an order in favor of plaintiffs, overruling defendants’ objections to plaintiffs’ interrogatories. The order required defendants to declare their expert, Dr. Fayyazi, to be used at trial and further required Dr. Fayyazi to answer full, complete financial interrogatories concerning he and his medical Group VSAS, going back three (3) years no later than September 15,2012. On August 1,2012 all defendants filed an appeal of the STM’s order. On February 3, 2014, the honorable judge Carmen D. Minora affirmed the STM’s order, and further ordered that the interrogatories be answered and be provided within thirty (30) days of the court’s order.

Pursuant to Pa.R.C.P. 4019, plaintiffs filed a motion for sanctions on April 23, 2014. On May 7, 2014, defendants filed a notice of intent to serve a subpoena to produce documents and things for discovery pursuant to Pa.R.C.P. 4009.21 to Dr. Gillick and Dr. Wolk of Northeastern Rehabilitation Associates. The April 23, 2014 motion was argued on May 8, 2014 and the STM entered an order giving defendants thirty (30) days to provide the ordered discovery or to have Dr. Fayyazi precluded from testifying at trial (hereinafter “the order”). On May 12, 2014, plaintiffs filed an objection to defendants subpoenas. On May 19, 2014, all defendants filed the current appeal of the order, and on June 3, 2014, plaintiffs filed a response to defendants’ appeal. On July 15, 2014, plaintiffs filed their brief in opposition to defendants’ appeal. On July 24, 2014, all defendants filed their brief in support of appeal of the order. On August 15, 2014, defendant’s filed their supplemental brief in support of appeal from the order. On August 26, 2014, plaintiffs filed their supplemental brief in opposition to defendants’ appeal from the order. On September 10, 2014, defendants filed their reply brief to the plaintiffs’ brief in opposition to defendants’ appeal of the order.

II. LEGAL ARGUMENTS OF THE PARTIES

I. Defendants’ Argument

Defendants argue that it was inappropriate for the STM to enter an order potentially precluding Dr. Fayyazi from testifying at trial where the defendant had demonstrated a good faith effort to obtain the requested information. Specifically, defendants argue the Pennsylvania Rules of Civil Procedure, Rule 4019 does not authorize the sanction of precluding a witness where the party has engaged in a good faith effort to obtain the information requested. Defendants’ counsel contends that “the court should analyze this factual scenario in accordance with precedent and established law regarding the unavailability of witnesses and the information they could provide.” See defendants’ supplemental brief in support of appeal from order of special trial master Dated May 8,2014, at 5.

II. Plaintiffs’Argument

Plaintiffs argue the STM followed the appropriate procedure in entering an order which could potentially preclude Dr. Fayyazi from testifying at trial. Plaintiffs contend that defendants’ counsel has repeated appeals, withheld information, repeated misinformation and failed to timely provide documents and information being dilatory, obdurate, and vexious. Plaintiffs further argue that while they have recently come into possession of the relevant documentation requested almost three (3) years ago, it was not as a result of defendants’ counsel’s compliance with any court order, but rather VS AS’ and Dr. Fayyazi’s response to a subpoena that the information was finally allegedly provided. Plaintiffs’ allege “the proper analysis in which this honorable court should proceed is in accordance with established precedencial law regarding the failure of a party to produce a document.” See plaintiffs’ supplemental brief in opposition to defendants’ appeal from order of special discovery master Dated May 8, 2014, at 11.

III. DISCUSSION

Pa.R.C.P. 4019 provides in relevant part:

(a)(1) The court may, on motion, make an appropriate order if
(i) a party fails to serve answers, sufficient answers or objections to written interrogatories under Rule 4005;
(iii) a person, including a person designated under Rule 4004(a)(2) to be examined, fails to answer, answer sufficiently or object to written interrogatories, under Rule 4004;
(vii) a party, in response to a request for production or inspection made under Rule 4009, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested;
(viii) a party or person otherwise fails to make discovery or to obey an order of court respecting discovery.
(2) A failure to act described in subdivision (a)(1) may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has filed an appropriate objection or has applied for a protective order.
(c) The court, when acting under subdivision (a) of this rule, may make
(1) an order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or any other designated fact shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(2) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting such party from introducing in evidence designated documents, things or testimony, or from introducing evidence of physical or mental condition;
(3) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or entering a judgment of non pros or by default against the disobedient party or party advising the disobedience;
(4) an order imposing punishment for contempt, except that a party may not be punished for contempt for a refusal to submit to a physical or mental examination under Rule 4010;
(5) such order with regard to the failure to make discovery as is just.

Pa.R.C.P. 4019.

“The decision whether to sanction a party, and if so the severity of such sanction, is vested in the sound discretion of the trial court.” McGovern v. Hospital Service Ass’n of Northeastern Pennsylvania, 785 A.2d 1012, 1015 (Pa. Super. 2001). “[T]he imposition of sanctions always is subject to a balancing test and a weighing of various factors.” Id., at 1019. In the exercise of judicial discretion in formulating an appropriate sanction order, the Court is required to select a punishment that fits the crime. Id. When determining if a sanction should be imposed, the court should consider the following factors: “(1) the nature and severity of the discovery violation, (2) the defaulting party’s willfulness or bad faith, (3) prejudice to the opposing party, and (4) the ability to cure the prejudice.” See Autochoice Unltd., Inc. v. Avanguard Auto Fin. Inc., 2009 AL 7063059 (Pa. Com. PL); McGovern, 785 A.2d at 1019. The McGovern court found that the above factors are instructive. McGovern, 785 A.2d at 1019. “Hence, they should be applied whenever a sanction is imposed.” Id.

The order provided that defendant would be precluded from presenting the testimony of Dr. Fayyazi if the information regarding Dr. Fayyazi’s and VSAS’ litigation related financial information and past litigation was not produced within thirty (30) days. Pa.R.C.P. 4019 allows the court to make an appropriate order if a party fails to obey an order of court respecting discovery. Pa.R.C.P. 4019(a)(l)(viii). While the decision whether to sanction a party is vested in the sound discretion of the trial court, we must consider the factors discussed supra in Autochoice Ultd and McGovern. Autochoice Ultd., 2009 AL 7063059 (Pa. Com. Pl.); McGovern, 785 A.2d at 1019.

Applying the four factors, this honorable court cannot find the imposition of STM Burke’s sanctions appropriate. First, defense counsel failed to procure the information regarding VS AS’ litigation related information and past litigation as required under the order. This was a direct violation of STM Burke’s May 5, 2014. Second, defense counsel argues that they attempted to obtain the information from Dr. Fayyazi, but that Dr. Fayyazi did not have that information available to him. However, plaintiffs contend that the attorney hired by Dr. Fayyazi and VS AS to represent them in response to the subpoenas “represented to plaintiffs’ counsel that it was neither Dr. Fayyazi nor VS AS that was responsible for the non-compliance of [STM Burke’s] order.” Plaintiffs’ supplemental brief in opposition to defendants’ appeal from order of special discovery mater dated May 8,2014, at 6.

Third, there appears to be no prejudice to the plaintiffs because they ultimately obtained the information regarding VS AS’ litigation related financial information and past litigation through subpoenas. Therefore, plaintiffs have the necessary information at their disposal. Lastly, any potential prejudice was cured due to plaintiffs’ receipt of the information required under the order. While defense counsel violated the order, weighing the factors this court cannot find that plaintiffs suffered prejudice and that any possible prejudice was cured when they obtained the information regarding VSAS’ litigation related finances and past litigation.

While the May 5, 2014 STM order was an appropriate sanction under Pa.R.C.P. 4019, this-court cannot find the sanction precluding the testimony of Dr. Amir Fayyazi should be imposed under the factors contained supra in Autochoice Ultd and McGovern. However, under Pa.R.C.P. 4019, this court may “make an appropriate order if “a party or person otherwise fails to make discovery or to obey an order of court respecting discovery.” Pa.R.C.P. 4019(a)(l)(viii). Because defense counsel directly violated STM Burke’s order by failing to procure the information regarding VSAS’ litigation related information and past litigation within thirty (30) days, an appropriate sanction should be imposed. We find that the defendants must pay plaintiffs legal expenses associated with this discovery because of their continuous failure to disclose the information that was ordered to be procured by STM Burke. Defendants are also to pay all costs associated with the discovery involving VSAS’ and Dr. Amir Fayyazi’s litigation related finances and past litigation provided up to date through the anticipated date of litigation.

Defendants’ appeal of the STM Order of May 5, 2014 is granted in part in that Dr. Amir Fayyazi will be allowed to present his testimony. The order is denied in part in that defendants are ordered to pay plaintiffs legal expenses and costs associated with the discovery related to VSAS and Amir Fayyazi, M.D as well as for plaintiffs subpoenas which ultimately produced the information which was being stone walled by defendants. An appropriate order follows.

ORDER

And now, this 23rd day of December 2014, upon consideration of the motions, responsive pleadings and briefs and the able verbal and written arguments of counsel for the parties regarding defendants’ appeal of the May 5, 2014 order of special trial master precluding the testimony of Dr. Amir Fayyazi if the information regarding Dr. Amir Fayyazi’s and VS AS’ litigation related financial information and past litigation which was not produced within thirty (30) days, it is hereby ordered and decreed that defendant’s appeal of the special trial master’s discovery order of May 5, 2014 is granted in part in that Dr. Amir Fayyazi’s testimony will not be precluded. It is denied in part in that it is ordered that defense counsel is to pay plaintiffs legal expenses and costs associated with the discovery dispute regarding Dr. Amir Fayyazi’s and VS AS’ litigation related financial information and past litigation as well as legal expenses and costs related to the successful subpoenas which ultimately produced the information which was being stone walled by defendants.

      . Defendants’ preliminary objections alleged the criminal history of defendant Kyriazis had nothing to do with the incident before the court and should be stricken, and that there was no support for the allegation that defendant Marta arrived on the scene to “cover up” for Kyriazis. On June 4, 2009, plaintiffs filed preliminary objections to defendant’s preliminary objections. On March 16, 2010, judge Cheslock sustained defendants’ objections to Kyriazis’ criminal history and overruled the objections as to Maria’s’ reasons for arriving on the scene. Defendants filed an answer and new matter to plaintiffs’ complaint on April 16,2010.

      . Plaintiffs filed a brief in opposition to the motion for partial summary judgment on May 25,2012.


text:
    Young v. Miller

      C.P. of Northampton County,
    No. C-48-CV-2013-5456

      Matthew T. Croslis, for plaintiff.

      Richard L. Orloski, for defendants.
    Dec. 30, 2014-
   BELTRAMI, J.,

This matter is before the court on defendants’ motion for summary judgment (“motion”), filed on August 18, 2014. On September 15, 2014, Plaintiff filed a reply to defendants’ motion. Briefs have been filed, oral argument was heard on September 23, 2014, and the matter is ready for disposition.

In his complaint, plaintiff asserts a breach of contract claim based on the following facts. On August 1, 2010, the parties entered into a commercial lease agreement (“lease”) pursuant to which defendants operated an automobile collision repair shop in a building owned by plaintiff and Mary Ann Young, his wife. (Compl. ¶ 9, Ex. B ¶ 2.1; Answer ¶ 9.) The lease term was month-to-month. (Compl. Ex. B ¶ 3.1.) Plaintiff and Mary Ann Young signed the Lease collectively as “landlord.” {Id. at 11.) On August 21, 2012, plaintiff and Mary Ann Young notified defendants of their intention to terminate the lease. (Compl. Ex. C.) Defendants vacated the premises on or about September 30, 2012. (Compl. ¶ 13; Answer ¶ 13.) Plaintiff subsequently inspected the premises, concluded that defendants had damaged the same, and filed the instant suit. {Id. ¶¶ 14, 16-17.)

Pennsylvania Rule of Civil Procedure 1035.2 establishes the standard of review for a motion for summary judgment as follows:

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

Pa.R.C.P. No. 1035.2. Summary judgment may only be granted when the record clearly shows that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010). The moving party bears the burden of proving that no genuine issue of material fact exists. Barnish v. KWI Bldg. Co., 916 A.2d 642, 645 (Pa. Super. 2007). In deciding a motion for summary judgment, the record must be viewed in the light most favorable to the non-moving party, and any doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. Ario v. Ingram Micro, Inc., 965 A.2d 1194, 1200 (Pa. 2009). Even where the facts are agreed upon, summary judgment cannot be entered if the facts can support conflicting inferences. Washington v. Baxter, 719 A.2d 733, 740 n.10 (Pa. 1998).

The party opposing a motion for summary judgment may not rest upon the mere allegations or denials of the pleadings but must file a response within thirty days after service of the motion identifying
(1) one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion, or
(2) evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not haying been produced.

Pa.R.C.P. No. 1035.3(a)(l)-(2). In other words, the “[fjailure of a non-moving party to adduce sufficient evidence on an issue essential to its case and on which it bears the burden of proof such that a jury could return a verdict in its favor establishes the entitlement of the moving party to judgment as a matter of law.” Young v. Commonwealth, Dep’t of Transp., 744 A.2d 1276, 1277 (Pa. 2000). In deciding a motion for summary judgment, the “record” available for the court’s examination includes the pleadings, discovery materials, affidavits, and expert reports. Pa.R.C.P. No. 1035.1.

Defendants first argue that judgment should be entered in their favor because Mary Ann Young is an indispensable party to this action. Thus, defendants argue, plaintiff cannot pursue this action without her, entitling defendants to judgment as a matter of law. Initially, the court notes that it is improper for a court to enter summary judgment where the basis for a motion for summary judgment is the failure to join an indispensable party. Gaynor v. Gyuris, 707 A.2d 534, 535, n. 1 (Pa. Super. 1998). That is because “[t]he absence of an indispensable party goes absolutely to the court’s jurisdiction.” Hart v. O’Malley, 647 A.2d 542, 549 (Pa. Super. 1994). Accordingly, if an indispensable party is not joined, a court is without jurisdiction to decide the matter, making any judgment it renders null and void. Id. Therefore, if Mary Ann Young is indeed an indispensable party, the court is without power to, as defendants request, enter “judgment in [defendants’] favor on the complaint.” (Mot. at 2.) Accordingly, the court will treat defendants’ motion as a motion to dismiss based on lack of jurisdiction resulting from plaintiff’s failure to join an indispensable party.

“A party is indispensable when his or her rights are so connected with the claims of the litigants that no decree can be made without impairing those rights.” Sprague v. Casey, 550 A.2d 184, 189 (Pa. 1988). The following factors are relevant to whether a person is an indispensable party:

1. Do absent parties have a right or interest related to the claim?
2. If so, what is the nature of that right or interest?
3. Is that right or interest essential to the merits of the issue?
4. Can justice be afforded without violating the due process rights of the absent parties?

DeCoatsworth v. Jones, 639 A.2d 792, 797 (Pa. 1994).

Here, the Rules of Civil Procedure provide a clear answer to whether Mary Ann Young is indispensable: “Persons having only a joint interest in the subject matter of an action must be joined on the same side as plaintiffs or defendants.” Pa.R.C.P. No. 2227(a) (emphasis added). In this case, plaintiff and Mary Ann Young have a joint interest in the subject matter of this action because they own the premises jointly and collectively signed, as “landlord,” the lease which forms the basis of this breach of contract action. “[I]f a contract is joint, the joint contractees must join in one action to enforce it.” Bowers v. London Assur. Corp., 90 Pa. Super. 121, 125 (1926). Thus, it is clear that Mary Ann Young is an indispensable party and that she has not been joined in this action as required.

The Rules of Civil Procedure state that “[wjhenever it appears...that there has been a failure to join an indispensable party, the court shall order...that the indispensable party be joined, but if that is not possible, then it shall dismiss the action.” Pa.R.C.P. No. 1032(b). “At any stage of an action, the court may order the joinder of any additional person who could have joined or who could have been joined in the action and may stay all proceedings until such person has been joined.” Pa.R.C.P. No. 2232(c). Because the court does not know whether it is possible to join Mary Ann Young, the court will grant plaintiff leave to amend his complaint to attempt to do so. If plaintiff is unable to join Mary Ann Young or fails to do so, the action will be dismissed.

WHEREFORE, the court enters the following:

ORDER OF COURT

and now, this 30th day of December, 2014, defendants’ motion for summary judgment, filed on August 18, 2014, is hereby denied, without prejudice. Plaintiff is granted leave to file an amended complaint, within thirty (30) days, to join Mary Ann Young as a plaintiff in this action. The action is stayed for thirty (30) days to allow plaintiff to j oin Mary Ann Young. If plaintiff fails to j oin Mary Ann Young as a plaintiff within thirty (30) days, the court will dismiss the action, on defendants’ motion.

      . Plaintiff and Defendants were also parties to a ten-year commercial lease agreement, for the same purpose and in the same capacities, which ran from July 1, 2000, to June 30, 2010. (Compl. Ex. A.) Plaintiff does not presently claim damages pursuant to that lease.

      . In fact, the Lease is “by and between DONALD T. YOUNG and MARY ANN YOUNG, husband and wife, ...hereinafter referred to as ‘Landlord’, — AND — ROBERT MILLER and KATHRYN MILLER, husband and wife, ...hereinafter referred to as ‘Tenant’. (Compl. Ex. B at 1 (emphasis added).)

      . In their motion, defendants alternatively argue that they are entitled to judgment because the lease does not provide any legal basis for plaintiff to recover his asserted damages. Because the court’s resolution of the first issue raised by defendants will result in additional pleadings being filed or the dismissal of the action, the second issue raised by defendants is not ripe for determination.


author: GRAY, J.,

text:
    Gamble v. Beck

      C.P. of Lycoming County,
    No. 13-02,818

      Robert B. Elion, for plaintiffs.

      Daniel D. Stofko, for defendant landlord.

      Gary Weber, for defendant tenant.
    Jan. 6, 2015-
   GRAY, J.,

Before the court are two motions for summary judgment filed in a personal injury case involving a slip and fall on a patch of ice in a parking lot. On October 15, 2014, defendant Tyndale Enterprises, Inc. (Tyndale) filed a motion for summary judgment, contending that it does not owe a duty to plaintiffs for conditions in the parking lot. On November 10, 2014, defendants, Dennis P. Beck and Christine A. Beck, filed a motion for summary judgment contending no liability pursuant to the hills and ridges doctrine. Argument was held on November 26, 2014. Although argument on the Beck’s motion was scheduled for December 30, 2014, the parties agreed to argue both motions on November 26, 2014. The parties submitted supplemental briefs and the matter is ripe for a decision.

Factual Background

On December26,2012, upon exiting her vehicle, Lenora Gamble slipped and fell on a patch of ice in the parking lot at 60 West Southern Avenue in South Williamsport, Pennsylvania. Lenora Gamble and her husband intended to shop at the Tyndale Store which is owned by the defendant Tyndale Enterprises, Inc. The Tyndale Store is situated in a strip mall owned by the defendants, Mr. and Mrs. Beck. The Tyndale Store moved to that location in June 2012. The Becks own the parking lot where Mrs. Gamble fell. The parking lot provides parking for customers of the business tenants at the strip mall. One of those businesses is the Tyndale Store.

On or about June 1,2012, the Becks leased the premises to Tyndale for operation of their business known as the Tyndale Factory Store. Under ¶ 6 of the lease agreement, the Tenant is responsible for maintenance of the interior of the property and the landlord is responsible for maintaining the exterior of the property, including the parking area. At the time of the fall, the Becks had an informal agreement with the adjacent business owner to clear the snow from the parking lot. The Becks relied upon the adjacent owner to salt the lot when needed; the Becks occasionally salted the parking area as well.

At the time Mrs. Gamble fell on the ice, the manager of the Tyndale Store, Lisa Klein, was in the process of opening the store. Mr. Gamble requested that Ms. Klein call 911. Ms. Klein offered assistance and retrieved a sweatshirt to cover Mrs. Gamble until the ambulance arrived. According to Ms. Klein, this was the first instance of inclement weather since the store had moved to that location in June 2012. Prior to the fall, there had been no directive or discussions with respect to protocols for inclement weather. Ms. Klein had not been directed to take any steps to maintain the parking lot. At the time of the fall, the Tyndale store did not have any salting or deicing materials on the premises. Since the date of the incident, Ms. Klein puts ice on the sidewalks and areas in the parking lot where the customers walk. After the fall, Mrs. Beck advised Ms. Klein to contact her about ice conditions.

The plaintiffs put forth evidence of the weather conditions at the time of the fall. Plaintiffs contend that there had been no precipitation for about 34 hours prior to the fall and that the day of the fall was nice and sunny. Plaintiffs put forth evidence that there were patches of ice throughout the parking lot at the time of the fall. Specifically, the plaintiffs contend that Mrs. Gamble fell on a large patch of ice, which covered an area big enough to hold three people.

Conclusions of Law

Summary Judgment

1. Pursuant to Pa. R.C.P. 1035.2, the court may grant summary judgment at the close of the relevant proceedings if there is no genuine issue of material fact or if an adverse party has failed to produce evidence of facts essential to the cause of action or defense. Keystone Freight Corp. v. Stricker, 31 A.3d 967, 971 (Pa. Super. Ct. 2011).

2. A non-moving party to a summary judgment motion cannot rely on its pleadings and answers alone. Pa. R.C.P. 1035.2; 31 A.3d at 971.

3. When deciding a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party, with all doubts as to whether a genuine issue of material fact exists being decided in favor of the non-moving party. 31 A.3d at 971.

4. If a non-moving party fails to produce sufficient evidence on an issue on which the party bears the burden of proof, the moving party is entitled to summary judgment as a matter of law. Keystone, 31 A.3d at 971 (citing Young v. Pa. Dep’t of Transp., 744 A.2d 1276, 1277 (Pa. 2000),

Negligence — Landlord’s Duty for Common Areas

5. Generally, landlord-tenant law provides the following.

[Wjhere the owner of real estate leases various parts thereof to several tenants, but retains possession and control of the common passageways and aisles which are to be used by business invitees of the various tenants, the obligation of keeping the common aisles safe for the business invitees is imposed upon the landlord and not upon the tenants, in the absence of a contrary provision in the lease or leases. Leary v. Lawrence Sales Corp., 275 A.2d 32 (Pa. 1971)(citations omitted).

6. The Pennsylvania Supreme Court has recognized that — absent a lease agreement to the contrary — the landlord owes the duty to business invitees of the various tenants for the common areas of which the landlord retains possession and control. Leary v. Lawrence Sales Corp., 275 A.2d 32 (Pa. 1971) (noting that the circumstances in that case were akin to those presented in the Restatement of Torts, § 360.)

Negligence — Duty by an Undertaking

7. Even where a person would not otherwise be liable, Pennsylvania law has applied 324A of the Restatement (Second) of Torts to impose liability to third parties for negligent performance of an undertaking under certain circumstances. Cantwell v. Allegheny County, 483 A.2d 1350 (Pa. 1984); Evans v. Otis Elevator Co., 168 A.2d 573 (Pa. 1961).

8. 324A of the Restatement (Second) of Torts provides the following.

§ 324A Liability to Third Person for Negligent Performance of Undertaking
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking. Restat 2d of Torts, § 324A.

9. “In order to be held liable under Section 324A, a defendant must have undertaken to perform a specific task, and must have performed that “undertaking” negligently.” Sheridan v. NGK Metals Corp., 2008 U.S. Dist. LEXIS 40926, 8-10 (E.D. Pa. May 21, 2008), citing, Patentas v. United States, 687 F.2d 707, 716 (3d Cir. 1982).

10. The Third Circuit Court of Appeals has indicated that the scope of the duty is measured by the scope of the undertaking. Sheridan v. NGK Metals Corp., 2008 U.S. Dist. LEXIS 40926, 8-10 (E.D. Pa. May 21, 2008), citing, Patentas v. United States, 687 F.2d 707, 716 (3d Cir. 1982) and Evans v. Liberty Mutual Insurance Co., 398 F.2d 665, 666-67 (3d Cir. 1968

Hills and Ridges Doctrine

11. The hills and ridges doctrine “protects an owner or occupier of land from liability for generally slippery conditions resulting from ice and snow where the owner has not permitted the ice and snow to unreasonably accumulate in ridges or elevations.” Morin v. Traveler’s Rest Motel, Inc., 704 A.2d 1085, 1087 (Pa. Super. 1997), citing, Harmotta v. Bender, 601 A.2d 837 (1992); and Wentz v. Pennswood Apartments, 518 A.2d 314, 316 (Pa. 1991).

12. Our Pennsylvania Supreme Court has indicated that the hills and ridges doctrine only applies to generally slippeiy conditions as a result of recent precipitation in the community and not to distinct patches of ice. Tonik v. Apex Garages, Inc., 275 A.2d 296, 298 (Pa. 1971); Williams v. Shultz, 240 A.2d 812, 813 (Pa. 1968).

Discussion

First, this court will discuss the summary judgment motion filed by Tyndale followed by a discussion of the summary judgment motion filed by the Becks. Tyndale is entitled to summary judgment. The court believes that plaintiffs and the Becks failed to put forth sufficient evidence of the existence of facts upon which to impose a duty upon Tyndale Enterprises, Inc. with respect to conditions in the parking lot. Absent a lease agreement to the contrary, the duty to maintain the common areas used for the benefit of multiple tenants, such as the parking lot, falls upon the landlord and not the tenants. See, e.g., Leary v. Lawrence Sales Corp., 275 A.2d 32 (Pa. 1971) It is undisputed in this case that the lease agreement provides that the Becks, as landlords, were responsible for maintaining the common areas, including the parking lot. Nonetheless, the Becks argue that the tenants owed a duty arising from an undertaking by the manager of Tyndale Store to salt the parking lot where customers may be walking.

In Pennsylvania, a duty may arise from the assumption of an undertaking to perform a task. See, Restat 2d of Torts, § 324A. “In order to be held liable under Section 324A, a defendant must have undertaken to perform a specific task, and must have performed that “undertaking” negligently.” Sheridan v. NGK Metals Corp., 2008 U.S. Dist. LEXIS 40926, 8-10 (E.D. Pa. May 21, 2008)(citations omitted). In Leary v. Lawrence Sales Corp., 275 A.2d 32 (Pa. 1971), the Pennsylvania Supreme Court concluded that the business tenant had not undertook control over the common areas of the entrance and exit aisle to its grocery store in the market even though it directed staff to clean up the area near the check-out counter in their spare time. Id., 275 A.2d at 36. After discussing the difficulty in quantifying what evidence was sufficient to show a voluntary assumption of duty, the court noted that the testimony was vague and did not show an agreement by the tenant to keep the area clean. Id. As such, there was insufficient evidence as a matter of law to impose a duty upon the tenant business.

Similarly, in Morin v. Traveler’s Rest Motel, Inc., 704 A.2d 1085 (Pa. Super. 1997), the Superior Court considered whether the tenant had “created a duty to exercise reasonable care in salting and sanding its parking facility based upon the motel manager’s voluntary undertaking to salt and sand parts of the motel parking lot.” Id., 704 A.2d at 1088. In that case, the manager had in fact salted and sanded parts of the parking lot, but the court concluded that the salting had not increased the hazards and no one had relied upon the salting. The court concluded that there was no duty created as a matter of law. Id., 704 A.2d at 1089.

As in the cases cited above, this court believes that, as a matter of law, the Tyndale Store did not assume a duty to maintain the parking lot at the time of Lenora Gamble’s fall. The only evidence produced to suggest that the Tyndale Store assumed such a duty in this case is an email written by the manager Lisa Klein. Ms. Klein wrote the email on July 31, 2013, over seven months after the fall. Taken in isolation, the present tense used in the email could raise an issue of whether the manager used snow melt on any ice in the parking lot as needed at the time of the fall. However, when the email is read in conjunction with Ms. Klein’s deposition, it is clear that Ms. Klein had not ever salted the parking lot prior to fall. After the incident, she started to salt areas in the parking lot where customers would be walking. As a result, no duty could have arisen at the time of the fall. Moreover, the evidence was vague, did not establish an agreement, and no evidence of reliance on such an undertaking was made. There was no evidence that the Becks believed that Ms. Klein had undertaken to salt the parking areas at the time of the fall or that they relied upon such an undertaking. As in Leary, where the landlord continued to employ a janitorial service to clean the area in question, the Becks continued to salt the lot occasionally themselves and believed the adjacent owner would salt the lot if he thought it was necessary.

As to the second summaiy judgment motion, the Becks contend that they could not be liable for the fall because of the hill and ridges doctrine. Under the hills and ridges doctrine, a property owner is not liable “for generally slippery conditions resulting from ice and snow where the owner has not permitted the ice and snow to unreasonably accumulate in ridges or elevations.” Morin v. Traveler's Rest Motel, Inc., 704 A.2d 1085, 1087 (Pa. Super. 1997), citing, Harmotta v. Bender, 601 A.2d 837 (1992); and Wentz v. Pennswood Apartments, 518 A.2d 314, 316 (Pa. 1991). However, this doctrine only applies to generally slippery conditions and not distinct patches of ice. Tonik v. Apex Garages, Inc., 275 A.2d 296, 298 (Pa. 1971); Williams v. Shultz, 240 A.2d 812, 813 (Pa. 1968). In the present case, the plaintiffs have provided evidence that it was sunny and nice on the day of the fall and that there had been no precipitation for about 34 hours prior to the fall. Plaintiffs also provided evidence that plaintiff fell on a distinct patch of ice in the parking lot. As a result, the court concludes that the hills and ridges doctrine does not apply.

Accordingly, the court enters the following order.

ORDER

And now, this 6th day of January, 2015, it is ordered and directed as follows.

1. Defendant, Tyndale Enterprises, Inc.’s summary judgment is granted.

2. Defendants Dennis P. and Christine A. Beck’s motion for summary judgment is denied.