author: HODGE, J,

text:
    Bomberger v. Bomberger
    C.P. of Lawrence County,
    No. 375 CIVIL 2006

      James W Manolis, for plaintiff.

      Phillip L. Clark, Jr., for defendant.
    January 16, 2014 —
   HODGE, J,

Before the court for disposition are competing requests to modify the existing support order entered on behalf of the plaintiff, Julie M. Bomberger (hereinafter, “wife”), andagainstthe defendant, William G. Bomberger (hereinafter, “husband”). The court will also consider husband’s petition to redirect support payments within this opinion and corresponding order of court. Prior to addressing the merits of the instant support action, the court will provide the following summation of this case’s factual and procedural history:

The parties were married on June 10, 2006. During the course of their marriage, husband was self employed as the sole owner and operator of New Castle Harley Davidson, Inc. (hereinafter, “Harley Dealership”). Husband and wife also started a second business, Paul’s Specialty Meat Market, Inc. (hereinafter, “Paul’s Market”). Wife is named as the sole shareholder of Paul’s Market, and she works primarily at this business. Wife initiated the instant support action on June 30, 2011, and husband subsequently filed a complaint in divorce on August 9, 2011. The support action was designated complex and heard before the court on August 14, 2012 and September 17, 2012. On December 18, 2012, this court entered an order requiring husband to pay wife spousal support in the amount of $13,937.32 per month.

On April 30, 3013, wife filed a petition to modify the December 18, 2012 support order, wherein wife claimed husband’s income increased. Wife requested the modification be applied retroactively from January 1, 2013. On May 30, 2013, husband filed a counter petition to modify the existing support order, wherein husband alleged a decrease in income. The parties’ petitions were consolidated for this court’s consideration and heard on October 17, 2013. Following the submission of briefs, the case is properly before the court for a determination.

The court will first address the effective date of this support order. Wife requests this court enter an order retroactive to January 1, 2012. Wife’s request is based on her realization that husband’s income was higher in 2012 than previously assessed by this court. Wife stated that she filed for modification within a month of being provided documentation of husband’s earnings following discovery requests in the divorce action. Although husband has provided the court with a clear delineation of his income for 2012 and projected income for 2013, husband objects to the retroactive application. Husband argues that the effective date of the new support order should be April 30, 2013, the date of filing. Husband alternatively argues that if the court does apply a retroactive effective date, wife should only be entitled to a modified support award beginning January 1, 2013 and not January 1, 2012 as requested at the de novo hearing.

Generally, modification of support is governed by Pa.R.C.P. 1910.17. Pursuant to Rule 1910.17 a court cannot implement an effective date earlier than the filing date of the underlying petition for modification. Kelleher v. Bush, 832 A.2d 483 (Pa. Super. 2003). The instant case, however, involves an arrearage of support. Therefore, the limitations set forth in Rule 1910.17 do not apply, and section 4352 of the Domestic Relations Code does apply. See e.g. Maue v. Gilbert, 839 A.2d 430 (Pa. Super. 2003); Kelleher v. Bush, supra. Section 4352 permits retroactive application of support if

the petitioner was precluded from filing a petition for modification by reason of a misrepresentation of another party or other compelling reason and if the petitioner, when no longer precluded, promptly filed a petition.

23 Pa.C.SA. § 4352(e). Based on the foregoing authority, the court concludes that it has the authority to retroactively assign a new support obligation, provided that wife establishes justification for doing so pursuant to 23 Pa.C.S.A. §4352.

The difficultly with the instant case is that husband’s income cannot be exactly calculated on an annual basis. Husband’s income is exactly defined in the subsequent year when husband’s accounting and taxes are completed. This results in a speculative analysis of husband’s income if the issue of his income is before the court in the same year that is being evaluated. A thorough review of the transcripts from prior proceedings warrants the conclusion that husband has made a genuine effort to provide the court with an accurate estimation of his income. However, the estimates provided to the court are not consistent with the figures now available. Thus, husband did not misrepresent his income to wife or the court, but wife was precluded from obtaining husband’s exact income due to the nature of husband’s revenue sources. Additionally, wife testified that she promptly filed a petition for modification of support after discovering husband’s 2012 income. The court concludes that wife has demonstrated compelling justification for retroactive application of the modified support order pursuant to Section 4352.

Having addressed the issue of retroactivity, the court will next consider the parties’ income from January 1, 2012 to the present for the purposes of entering a support award. The parties have previously stipulated to their respective incomes for the year 2012. In 2012, husband’s monthly net income was $49,464.00, and wife’s monthly net income was $1,788.96. The corresponding support order will assess the parties accordingly. The remaining issue before the court is husband’s 2013 income.

It is well settled that a trial court must consider the actual disposable income of the parties when determining the financial obligation that should be imposed upon the payor spouse. Fennell v. Fennell, 753 A.2d 866, 868 (Pa. Super. 2000) (quoting Labar v. Labor, 731 A.2d 1252, 1255 (Pa. 1999)). Actual disposable income is the financial resources available to the parties and not the “fictional financial picture” created by the standard federal income tax return. Id. Thus, deductions or losses, as denoted in a corporation’s book of accounting or an individual’s federal income tax return, are irrelevant when determining actual disposable income, unless such figures denote an actual deduction in available income. Id.

Husband had several sources of income in 2013. Husband received wages, income from interest, investment income, rental income and income from his Harley Dealership. The court outlines husband’s 2013 income as follows:

Wages $55,762.00
Interest $361.00
Dividends $8,053.00
Capital Gains $878.00
Rental Income $63,490.00
Harley Dealership $1,385,495.00
$1,514,039.00

Husband’s income, as outlined about, results in husband receiving a gross income totaling $1,514,039.00 in 2013, which results in a monthly net income of $104,850.00.

Husband’s 2013 gross income becomes the court’s starting point for the following analysis. Husband contends that in 2013 he was required to make substantial improvements to his Harley Dealership so that husband could remain in good standing with Harley Davidson, Inc. Husband stated that if these improvements were not initiated in 2013, he would have lost his ability to sell a significant portion of his inventoiy supplied by Harley Davidson, Inc. The loss of available inventory would have resulted in a drastic reduction of husband’s income from his Harley Dealership. Wife alternatively contests the necessity of the improvements and the reasonableness of the funds expended by husband for this purpose. Wife believes that husband utilizes his Harley Dealership to shelter his cash flow, and wife asserts that husband made the improvements to his dealership to avoid a larger support obligation.

For guidance, the court looks to the case of Heisey v. Heisey, 633 A.2d 211 (Pa. Super. 1993). In Heisey, the Superior Court of Pennsylvania was asked to consider whether the trial court’s computation of husband was correctly calculated. 633 A.2d at 212. Wife asserted that the trial court incorrectly relied on figures supplied by husband via his federal income tax returns to arrive at its ultimate determination. Id. Upon review, the Superior Court held that it was error for the trial court to automatically subtract business expenses and losses husband reported on his corporate federal income tax return. Id.; see also: Fennell v. Fennell, 753 A.2d 866, 868 (Pa. Super. 2000)(“[T]he owner of a closely-held corporation cannot avoid a support obligation by sheltering income that should be available for support by manipulating salary, perquisites, corporate expenditures, and/or corporate distribution amounts.”); McAuliffe v. McAuliffe, 613 A.2d 20,22 (Pa. Super. 1992) (“Depreciation and depletion expenses that are allowed under federal income tax law will not automatically be deducted from gross Income for the purpose of determining support responsibilities.”); Flory v. Flory, 527 A.2d 155, 157 (Pa. Super. 1987) (trial court erred by calculating father’s income based on income reported on tax return alone; “[federal income tax law permits deductions that may not reduce a [party]’s disposable income”).

Alternatively, however, it is just as improper to attribute as income funds not actually available to the payor spouse. Fennell, 753 A.2d at 868; Labor, 731 A.2d at 1256 (loans made to a corporation for making capital expenditures cannot be characterized as income to owners of the corporation); Calabrese v. Calabrese, 682 A.2d 393, 396 (Pa. Super. 1996) (a fair representation of the payor’s income must be determined prior to entry of a support obligation).

In the present case, husband contends that the expenses made to his Harley Dealership were necessary to ensure the future interests of his company. Husband stated that in 2013 he spent $909,009.00 in capital improvements to his Harley Dealership. Husband offered numerous letters from Harley Davidson, Inc. to support his contention that the improvements were actually necessary. The court acknowledges that if husband had not made these improvements in 2013, the funds expended could have been available to him and considered for the purposes of establishing husband’s support obligation. However, the court concludes that husband has met his burden of establishing that the expenditures were necessary for the continued operation and smooth running of the business, thus refuting wife’s allegation that husband’s has sheltered his cash flow via his corporation. See e.g.; Labor 731 A.2d 1252 (Pa. 1999); McAuliffe, supra.

Having justified husband’s 2013 capital expenditures made on behalf of the Harley Dealership, the court will reduce his gross income of $1,514,039.00 by $909,009.00, resulting in an actual gross income of $605,030.00. Husband next contends that his annual gross income should further be reduced pursuant to Rules 1910.16-6(e) and 1910.16-5(b) of the Pennsylvania Rules of Civil Procedure for payments Husband made on loans taken out by the parties during their marriage to fund Paul’s Market.

Rule 1910.16-6 provides as follows:

Additional expenses permitted pursuant to this rule 1910.16-6 may be allocated between the parties even if the parties’ incomes do not justify an order of basic support.
***
(e) Mortgage Payment. The guidelines assume that the spouse occupying the marital residence will be solely responsible for the mortgage payment, real estate taxes, and homeowners’ insurance. Similarly, the court will assume that the party occupying the marital residence will be paying the items listed unless the recommendation specifically provides otherwise. If the obligee is living in the marital residence and the mortgage payment exceeds 25% of the obligee’s net income (including amounts of spousal support, alimony pendente lite and child support), the court may direct the obligor to assume up to 50% of the excess amount as part of the total support award. If the obligor is occupying the marital residence and the mortgage payment exceeds 25% of the obligor’s monthly net income (less any amount of spousal support, alimony pendente lite or child support the obligor is paying), the court may make an appropriate downward adjustment in the obligor’s support obligation. This rule shall not be applied after a final resolution of all outstanding economic claims. For purposes of this subdivision, the term “mortgage” shall include first mortgages, real estate taxes and homeowners’ insurance and may include any subsequent mortgages, home equity loans and any other obligations incurred during the marriage which are secured by the marital residence.

1910.16-6 (e).

Husband attempts to argue that the payments he made towards the parties’ marital debt are similar to a mortgage payment made by a payor spouse who is not occupying the marital residence. Husband references Rule 1910.16(e) to justify his request for a deviation. Husband also cites to Rule 1910.16-5 to justify his equitable request. Rule 1910.16-5 requires the trial court to consider various factors when determining whether a deviation from the guideline support award is appropriate. Those factors numerated as follows:

(1) unusual needs and unusual fixed obligations;
(2) other support obligations of the parties;
(3) other income in the household;
(4) ages of the children;
(5) the relative assets and liabilities of the parties;
(6) medical expenses not covered by Insurance;
(7) Standard of living of the parties and their children;
(8) in a spousal support or alimony pendente lite case, the duration of the marriage from the date of marriage to the date of final Separation; and
(9) other relevant and appropriate factors, including the best interests of the child or children.

Pa.R.C.P. 1910.16-5(b).

After a thorough review of the rules referenced by husband, the court concludes that the husband’s request for a deviation must be denied. The standards outlined in the rules of civil procedure reference very specific circumstances, which justify the court employing its equitable powers in support cases. Payments made by husband toward a marital debt do not justify such a deviation. If the court were to grant husband’s request, divorcing parties could request a deviation for payments made toward any variation of marital debt made post separation. A spouse could simply reference their Lowe’s bill or vehicle obligation that the parties mutually incurred in an attempt to lower their support payments. In the present case, husband’s request only seems less obvious because the debt is so large, and his subsequent payments are equally great. The court defers to its prior ruling that these issues are better left for the time of equitable distribution and not at a support hearing. Therefore, husband’s current support obligation shall be calculated based on an annual gross income of $605,030.00.

Having reached a determination regarding husband’s 2013 income, the court next considers wife’s 2013 income. Husband asserts that wife’s 2013 income is greater than her 2012 income. Husband relies on a bankruptcy petition wife filed in support of his assertion. A careful review of wife’s bankruptcy filings indicates a purported gross income of $44,000.00. Wife alternatively argues that her actual income is definitively stated in payroll records supplied to the court by wife. A careful review of these records also leaves the court to speculate wife’s actual annual income because the payroll summary provided only, reflects wife’s wages from January 1, 2013 through April 22, 2013. Furthermore, during this time period, wife’s wages ranged anywhere from $160.00 to $600.00 on a bi-weekly basis. Based on the wages reported, the court is unable to even make an annualized calculation of wife’s annual income because to do so would be purely speculative. Based upon the above findings, the court concludes that neither party properly established a change in income for wife. Wife shall be assessed a net income consistent with that assigned to her in 2012.

Consistent with the findings of fact and conclusions of law set forth above, the court will enter the following order of court:

ORDER OF COURT

And now, this 16th day of January, 2014, with this matter being before the court for a de novo support hearing with the plaintiff, Julie M. Bomberger, appearing and being represented by James W. Manolis, Esquire, and the defendant, William G. Bomberger, appearing and being represented by Phillip L. Clark, Jr., Esquire, and after a hearing held, and consistent with the attached opinion, the court hereby orders and decrees as follows:

PART ONE

1. Effective January 1, 2012 through December 31, 2012, defendant is assessed a net monthly income of $49,464.00.

2. Effective January 1, 2012 through December 31, 2012, plaintiff is assessed a net monthly income of $1,788.96.

3. Defendant provides health insurance for plaintiff. The cost of the health insurance is $588.00 per month. Defendant is entitled to a downward deviation pursuant to rule 1910.16-6(b) equaling $20.52 per month.

4. Based upon the above findings, effective January 1, 2012, the defendant shall pay to the Pennsylvania State Collection and Disbursement Unit the sum of $19,049.50 in spousal support, with the first payment due immediately and monthly thereafter until an income attachment is implemented.

5. The Domestic Relations Section ofLawrence County is to set the amount of arrearages and the arrearages will be payable in the sum of $1,000.00 per month in addition to the support obligations equaling $19,049.50 per month for a total monthly payment of $20,049.50.

PART TWO

6. Effective January 1, 2013 and continuing thereafter, defendant is assessed a net monthly income of $29,223.81.

7. Effective January 1, 2013 and continuing thereafter, plaintiff is assessed a net monthly income of $1,788.96.

8. Defendant provides health insurance for plaintiff. The cost of the health insurance is $588.00 per month. Defendant is entitled to a downward deviation pursuant to rule 1910.16-6(b) equaling $33.93 per month.

9. Based upon the above findings, effective January 1, 2013 and continuing thereafter, the defendant shall pay to the Pennsylvania State Collection and Disbursement Unit the sum of $10,940.01 in spousal support, with the first payment due immediately and monthly thereafter until an income attachment is implemented.

10. The Domestic Relations Section ofLawrence County is to set the amount of arrearages and the arrearages will be payable in the sum of $1,000.00 per month in addition to the support obligations equaling $10,940.01 per month for a total monthly payment of $ 11,940.01.

11. Defendant shall continue to provide health insurance for plaintiff, pursuant to Rule 1910.16-6(b).

12. The defendant shall provide the plaintiff with proof of medical coverage, as well as a copy of all necessary insurance cards to be used on her behalf.

13. Defendant’s petition to reallocate support payments is denied.

14. The domestic relations section shall properly serve notice of this order and opinion upon counsel of record for the parties and upon any party not represented by counsel at their last known address as contained in the court’s file.

      . Wife’s counsel indicated that wife’s petition for modification was filed pro se. Wife’s counsel indicated that wife intended her request to be retroactive from January 1,2012. Because this case was before the court for a de novo hearing, the court took wife’s request under advisement, pending the instant determination.

      . Wife’s monthly net income has not changed from 2012. Any variation in the support obligation will be derived from a change in husband’s monthly net income.

      . The 2013 income from husband’s Harley Davidson Dealership is based upon an actual income of $923,663.00 from January 1, 2013 through August 31, 2013. The actual income for the eight month period has been annualized for 2013 to arrive at a purported income of $1,385,495.00.


source: Caselaw Access Project

author: SNITE, J.,

license: Public Domain

text:
    Tertyshnaya v. Standard Security Life Insurance Co. of N.Y.

      C.P. of Philadelphia County,
    May Term,
    No. 3803

      Robert A. Klein, for plaintiffs.

      Raymond J. Santarelli and Conlin O ’Boyle, for defendants HCC Holdings, Inc., HCC Specialty Underwriters Inc. and Standard Security Life Insurance Co.
    January 16, 2014 —
   SNITE, J.,

This action was commenced on May 27,2010 by the filing of a complaint. On August 19, 2013 defendants Standard Security Life Insurance Company of New York, HCC Specialty Underwriters, Inc., and American Specialty Underwriters, Inc. filed a motion for summary judgment asking the court to enter judgment in their favor. By order and opinion dated December 13, 2013, docketed December 16, 2013, this court granted defendants’ motion for summary judgment.

The December 13, 2013 order had the effect of fully disposing of the case.

On Januaiy 14, 2014 plaintiff Polina Tertyshnaya, individually and on behalf of her minor son Alexander Tertyshny, appealed the order and opinion of December 13, 2013.

The court did not order appellant to file a concise statement of errors complained of on appeal.

DISCUSSION

This court adopts, as its opinion on appeal, the order and opinion dated December 13, 2013, which sets forth this court’s reasoning. This order and opinion are attached. The court asks that the December 13, 2013 order and opinion be affirmed.

CONCLUSION

For the aforementioned reasons, appellants’ claims are without merit. Accordingly, this appeal should be denied.

ORDER

And now, this 13th day of December, 2013, upon consideration of defendants Standard Security Life Insurance Company of New York, HCC Specialty Underwriters, Inc., and American Specialty Underwriters, Inc.’s motion for summary judgment on all claims because all claims are Barred by the statute of limitations, and plaintiff’s response in opposition thereto, it is hereby ordered that said motion is granted.

OPINION

Before the court is defendants Standard Security Life Insurance Company of New York, HCC Specialty Underwriters, Inc., and American Specialty Underwriters, Inc.’s motion for summaiy judgment and plaintiff’s response in opposition thereto.

PROCEDURAL HISTORY

This action was commenced by the filing of a four count complaint against Standard Security Life Insurance Company of New York, HCC Specialty Underwriters, Inc., HCC Insurance Holdings, Inc., and American Specially Underwriters, Inc. (collectively herein “insurance defendants”) on May 27, 2010. The complaint was composed of count I (declaratoiy relief), count II (breach of contract), count III (quantum meruit/unjust enrichment), and count IV (bad faith).

On December 20, 2010, this case was transferred into the commerce program.

On December 20, 2010 plaintiff filed a seven count amended complaint. The amended complaint was composed of count I (declaratory relief), count II (breach of contract), count III (quantum meruit/unjust enrichment), count IV (bad faith), count V (violation of Pennsylvania Unfair Trade Practices and Consumer Protection Law), count VI (fraudulent misrepresentation), and count VII (negligent misrepresentation).

On January 10, 2011 insurance defendants filed preliminary objections to plaintiff’s amended complaint. On January 31, 2011 plaintiff filed preliminary obj ections to insurance defendants’ preliminary objections as well as a response to insurance defendants’ preliminary objections. On February 22, 2011 insurance defendants filed a response to plaintiff’s preliminary objections to their preliminaiy objections.

On March 14, 2011, Judge Bernstein overruled plaintiffs preliminary objections to insurance defendants’ preliminary objections. On December 12, 2011 insurance defendants’ preliminary objections were overruled in part ultimately dismissing counts VI (fraudulent misrepresentation) and VII (negligent misrepresentation) and striking plaintiff’s request for attorney’s fees. Thus, the causes of action against insurance defendants remained: count I (declaratory relief), count II (breach of contract), count III (quantum meruit/unjust enrichment), count IV (bad faith), and count V (violation of Pennsylvania Unfair Trade Practices and Consumer Protection Law).

On May 18, 2012, insurance defendants filed their answer to plaintiff’s amended complaint with new matter. On June 6, 2012 plaintiff filed a response to insurance defendants’ new matter.

On September 3, 2012 plaintiff filed amotion for leave to amend the amended complaint and to join additional defendants, insurance defendants filed an answer to the motion to amend on September 24, 2012. By order dated November 5, 2012 Judge Snite granted plaintiff’s motion for leave to amend the amended complaint and to join additional defendants.

Plaintiff’s second amended complaint added as defendants Michael S. Chaut (“Chaut”), Michael Chaut & Associates (“MCA”), Jay M. Grossman (“Grossman”), and the Puck Agency, LLC. The second amended complaint was composed of count I (declaratory relief), count II (breach of contract), count III (quantum meruit/unjust enrichment), count IV against Standard Security Life, American Security Underwriters, and HCC Specialty Underwriters (bad faith), count V (violation of Pennsylvania Unfair Trade Practices and Consumer Protection Law), count VI (fraudulent misrepresentation), count VII (negligent misrepresentation), count VIII (negligence), and count IX against Chaut, MCA, Grossman, and the Puck Agency (breach of contract). On December 7, 2012 defendants filed an answer to plaintiff’s second amended complaint with new matter. On February 19, 2013 plaintiff filed an answer to defendants’ new matter.

On December 21, 2012 defendants Chant and MCA advised the prothonotary that the case was removed to the Eastern District of Pennsylvania on December 19, 2012. On January 31, 2013 the case was remanded back to the court of common pleas for Philadelphia County.

On April 3, 2013 insurance defendants filed a motion for judgment on the pleadings based on the statute of limitations, the same issue before this court on the instant motion for summary judgment. On April 24, 2013 plaintiff filed an answer to insurance defendants’ motion for judgment on the pleadings. On May 23, 2013 Judge Snite denied insurance defendants’ motion for judgment on the pleadings because discovery was not complete.

On April 10, 2013 defendants Chaut and MCA filed a motion to discontinue action. On May 22, 2013 Judge Snite granted defendants Chaut and MCA’s motion to discontinue the action.

Upon completion of numerous discovery hearings and motions for extraordinary relief, the final revised case management order was docketed on March 27, 2013, with discovery to be completed by June 3, 2013, plaintiff’s expert reports to be submitted by June 3, 2013, defendants ’ expert reports submitted by August 5, 2013, and all pretrial motions to be filed by August 19, 2013.

On August 19, 2013, insurance defendants filed the instant motion for summary judgment. On October 25, 2013, plaintiff filed a response in opposition. On November 11, 2013, insurance defendants filed a reply in support of its motion for summary judgment.

FACTUAL HISTORY

This action was initiated by the plaintiff Polina Tertyshnaya individually and on behalf of her minor son Alexander Tertyshny, arising from insurance defendants alleged failure to pay accidental death benefits to plaintiff following her husband’s death in July 1999.

Plaintiff is the widow of Dmitri Tertyshny, who played for the Philadelphia Flyers in the National Hockey League. Plaintiff alleges that in or about March of 1999 Mr. Tertyshny and plaintiff purchased a policy of disability and accidental death and dismemberment insurance with respect to Mr. Tertyshny from Insurance defendants. Mr. Tertyshny died on July 23, 1999 while attending a summer training camp in Canada. At no time since Mr. Tertyshny’s death has plaintiff received accidental death and dismemberment benefits.

Plaintiff alleges that insurance defendants “stonewalled” plaintiff’s requests for a copy of the policy to discourage, interfere with, and avoid their obligations under the policy and fraudulently or recklessly concealed the policy from plaintiff.

In May of 2010 plaintiff brought claims against the individual defendants for failure to pay benefits under the alleged policy.

DISCUSSION

The claims against insurance defendants are premised on allegations that insurance defendants failed to pay accidental death benefits.

Once the relevant pleadings have closed, any party may move for summary judgment. Pa. R.C.P 1035.2. “Pennsylvania law provides that summary judgment may be granted only in those cases in which the record clearly shows that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law.” Rausch v. Mike-Meyer, 783 A.2d 815, 821 (Pa. Super. 2001). Further, granting summary judgment is appropriate only when the evidentiary record shows the material facts are undisputed. McCarthy v. Dan Lepore & Sons 4 Co., Inc., 724 A.2d 938, 940 (Pa. Super. 1998). The trial court must view the record in the light most favorable to the non-moving party. Rausch, 783 A.2d at 821.

The Pennsylvania Supreme Court recognizes that “[1] imitation periods are intended to put defendants on notice of adverse claims and to prevent plaintiffs from sleeping on their rights.” “Once the prescribed statutory period for commencing a cause of action has expired, the complaining party is barred from bringing suit.” It is well settled law that “[i]t is the duty of a party asserting a cause of action to use all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery is based and to institute suit within the prescribed statutory period.” “Lack of knowledge, mistake or misunderstanding does not toll the running of the statute of limitations.” Under Pennsylvania law “the statute of limitations begins to run as soon as the right to institute and maintain the suit arises.”

Here, in order to establish that plaintiff’s claims are not time barred by the statute of limitations, the evidence must show that plaintiff brought her causes of action within the requisite statutes of limitations.

In this case, plaintiff asserts seven causes of action against insurance defendants. Under Pennsylvania law, plaintiff’s count IV (bad faith), count VI (fraudulent misrepresentation), count VII (negligent misrepresentation), and count VIII (negligence) are governed by a two year statute of limitations. Additionally, under Pennsylvania law, plaintiffs count I (declaratory relief), count II (breach of contract), and count III (quantum meruit/unjust enrichment) are governed by a four year statute of limitations. Finally, under Pennsylvania law, plaintiff’s countV (Violation of Pennsylvania Unfair Trade Practices and Consumer Protection Law) is governed by a six year statute of limitations.

In this case, plaintiff claims that she and her husband obtained a “policy of disability and accidental death and dismemberment insurance with respect to Dimitri Tertyshny” in March of 1999 and that she personally applied to be a beneficiary under the policy in March of 1999 plaintiffs husband died on July 23, 1999. Upon learning of plaintiffs husband death, insurance defendants took steps to cancel Mr. Tertyshny’s disability policy. On August 30, 1999, insurance defendants wrote to Jay Grossman, Mr. Tertyshny’s sports agent, and included a copy of the permanent total disability policy and a refund for the unused premium for permanent total disability benefits.

As of her husband’s death on July 23, 1999 plaintiff was aware of her right of recovery under the insurance policy she alleges she purchased with her husband. Furthermore, as of insurance defendant’s communication with Jay Grossman on August 30, 1999, plaintiff was on notice that no death benefits were included in the policy and that no death benefits were to be issued by insurance defendants. Plaintiff did not submit a proof of loss or notice of claim to insurance defendants. Instead, plaintiff did not contact insurance defendants until December of 2008 concerning the existence of a policy for Mr. Tertyshny providing accidental death benefits.

Barring exception, the statute of limitations began to run no later than insurance defendants communication with Jay Grossman on August 30, 1999. Plaintiffs count IV (bad faith), count VI (fraudulent misrepresentation), count VII (negligent misrepresentation), and count VIII (negligence) are governed by a two year statute of limitations; therefore these claims must have been brought no later than August 2001. Plaintiff’s count I (declaratory relief), count II (breach of contract), and count III (quantum meruit/unjust enrichment) are governed by a four year statute of limitations; therefore these claims must have been brought no later than August 2003. Plaintiff’s count V (violation of Pennsylvania Unfair Trade Practices and Consumer Protection Law) is governed by a six year statute of limitations; therefore these claims must have been brought by August 2005. Plaintiff did not contact insurance defendants until December of 2008 concerning the accidental death benefits policy and did not initiate the instant action until May of 2010.

The fraudulent concealment doctrine is an exception to the statute of limitations. The fraudulent concealment doctrine provides that “the defendant may not invoke the statute of limitations, if through fraud or concealment, he causes the plaintiff to relax his vigilance or deviate from his right of inquiry into the facts.” Fraudulent concealment may occur as a result of innocent deception or unintentional concealment and need not consist of intentional fraud. Under the application of the fraudulent concealment doctrine an “affirmative or independent act of concealment that would divert or mislead the plaintiff from discovering the injury” is sufficient to toll the statute of limitations. In this case, to toll the statute of limitations under the fraudulent concealment doctrine plaintiff must show that insurance defendants committed some affirmative independent act of concealment upon which the plaintiff justifiably relied.

Plaintiff argues that insurance defendants “participated in fraud or concealment such that they should be stopped from asserting the defense of statute of limitations.” Plaintiff asserts that insurance defendants knew a policy was issued, lied to plaintiff about it, and issued a backdated policy for disability insurance only after receiving notice of Mr. Tertyshny’s death. Furthermore, plaintiff maintains that when both she and her attorney “inquired to [insurance defendants] about why the death benefits were not paid, and requested a copy of any policy; the [insurance defendants] and their agents represented that they had no record of any policy being issued in regard to plaintiff’s late husband.” Plaintiff argues that these acts of concealment caused her to relax her vigilance and not file suit.

However, none of these unsupported allegations are sufficientto showthatthe statute of limitations on plaintiff’s claims should have been tolled under the fraudulent concealment doctrine. Insurance defendants presented evidence that they did not back-date Mr. Tertyshny’s policy as evidenced by a conditional coverage note dated March 5, 1999, before the policy was issued. More importantly, neither plaintiff nor her attorney contacted insurance defendants until December of2008 regarding the existence of a policy for Mr. Tertyshny providing accidental death benefits. When plaintiff contacted insurance defendants in December of2008 inquiring as to why death benefits were not paid, the statute of limitations had expired for all of plaintiff’s claims.

In this case, the assertions of the doctrine of fraudulent concealment doctrine cannot revive the statute of limitations. The doctrine of fraudulent concealment does not apply in this case to toll the statute of limitations; therefore insurance defendants are entitled to summary judgment on all claims.

In aummary, plaintiff alleges a scenario in which she was actively prohibited from discovering the true state of affairs through insurance defendants’ fraud and concealment. Although insurance defendants did contact Grossman, and stated that the disability policy was cancelled due to death, plaintiff has produced no coherent facts indicating that insurance defendants affirmatively concealed “a death policy”. Nor has plaintiff produced any facts to show that she made any attempt to learn of “a death policy” by August of 2005. There is also no evidence that insurance defendants produced a back dated policy. Furthermore, although the court is sympathetic to plaintiff’s language barrier the court cannot allow this as a sufficient excuse.

CONCLUSION

In conclusion, I am granting insurance defendants’ motion for summary judgment on the basis of statute of limitations. This action is dismissed.

      . By stipulation of the parties dated May 23, 2011 this defendant was dismissed.

      . Control number 11011168.

      . Control number 11020005.

      . Control number 13040799.

      . Control number 13041467. As of March 25, 2013 counsel for plaintiff agreed to stipulate to the dismissal of the Chaut defendants. Defs.’ mot. discontinue ¶ 3.

      . Second am. compl. ¶ 13.

      . Second am. compl. ¶ 15.

      . Second am. compl. ¶ 19.

      . Second am. compl. ¶ 23.

      . Second am. compl. ¶¶ 32, 37.

      . Cunningham v. Insurance Co. of North America, 530 A.2d 407, 411 (Pa. 1987).

      . Booher v. Olczak, 797 A.2d 342, 345 (Pa. Super. Ct. 2002).

      . Id.

      . Id.

      . Sevast v. Kakouras, 915 A.2d 1147, 1153 (Pa. 2007).

      . Second am. compl.

      .42Pa.C.S.A. §5524.

      . 42Pa.C.S.A. § 5525.

      . See Ash v. Cont’l Ins. Co., 932 A.2d 977, 881 (Pa. 2007) (recognizing that statute of limitations was previously held to be governed by the catchall six year statute of limitations).

      . Emphasis added.

      . Second am. compl. ¶ 15.

      . Second am. compl. ¶ 19.

      . Second am. compl. ¶ 22.

      . Second am. compl. ¶¶ 20, 29(c), 35(e).

      . Defs/’ mot. summ. J.

      . Second am. compl. ¶ 24; moy dep. at 128.

      . Fine v. Cheecio, 870 A.2d 850, 861 (Pa. 2005).

      . Id.

        . Bohus v. Beloff, 950 F.2d 919, 925 (3d Cir. 1991).

      . See Kingston Coal Co. v. Felton Mining Co., 690 .2d 284, 291 (1997).

      . Pl.’s memo opp. defs.’ mot. summ. J. p. 28.

      . Id

        . Id. p. 28.

      . Id. pp. 26-30.

      . See Dalrymple v. Bown, 701 A.2d 164, 171 (Pa. 1997).

      . See Guenther v. Quartucci, 1996 U.S. Dist. LEXIS 1654 (E.D. Pa. Feb. 12, 1996) (explaining “even if this court found that [defendant’s] acts somehow rose to the level of concealment, they could not possibly have the effect of causing plaintiffs to “relax vigilance or deviate from the right of inquiry.”)

      . Pl.’s memo op. defs.’ mot. summ. J. p. 28.


author: BELTRAMI, J.,

text:
    Turnberry Mews Condominium Association, Inc. v. Jams Properties, LLC

      C.P. of Northampton County,
    No. C-48-CV-2013-5150

      Wallace B. Eldgridge, III, for plaintiff

      Ian T. Baxter, for defendant.
    January 16, 2014 —
   BELTRAMI, J.,

This matter is before the court on “Plaintiff’s Petition for Ancillary Relief in the Form of a Declarator Judgment pursuant to Pa. R.C.P. 1602” (“petition”). Briefs have been submitted, and oral argument was heard on November 12, 2013. The matter is now ready for disposition. For the reasons that follow, plaintiff’s petition will be granted, in part.

The relevant facts are as follows. Plaintiff is the Owners Association of a condominium community, known as Tumberry Mews, located in the City of Bethlehem, Northampton County, Pennsylvania. (Stipulation of counsel, ex. A, sections 2.1, 5.1.) Tumberry Mews was created by and is subject to a “Declaration of covenants, conditions and restrictions for Tumberry Mews” (“declaration”), dated October 24, 2005. (Stipulation of counsel, ex. A.) By virtue of a sheriff’s deed, defendant Jams Profits, LLC (“defendant”) is the owner of real estate designated as units 1A, IB, 1C, ID, IE, 7A, 7B, 7C, and 7D, as shown on the plan for Tumberry Mews. (Stipulation of counsel, exs. B, D.) Defendant’s real estate consists of nine vacant lots. (Stipulation of counsel ¶ 8.) The lots are developed only with infrastmcture, including “paved streets, concrete curbing, Belgian block curbing, driveway indentations, individual utility supply lines, operating lamp posts, and evergreen and deciduous trees and shrubs.” (Id.)

On June 3, 2013, plaintiff filed a complaint seeking damages of $41,408.98 from defendant for unpaid annual general assessments, late fees, and attorney’s fees it claims are due under the declaration. On July 3, 2013, defendant filed an answer and new matter, in which it alleges that, because the lots are undeveloped, no annual general assessments are due under the declaration.

On August 9, 2013, plaintiff filed the instant petition, which asks the court to declare that defendant is liable for annual general assessments, interest, late fees, and attorney’s fees under the terms of the declaration. Defendant filed an answer and new matter on August 29, 2013, and argues that because its lots are currently vacant, payment of annual general assessments is not required by the declaration. The case was placed on the argument list of November 12, 2013. On November 12, 2013, the parties filed a stipulation of counsel, which contains the record for decision.

The declaratory judgments act grants this court the “power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.” 42 Pa.C.S.A. § 7532. The purpose of a declaratory judgment is “to afford relief from uncertainty and insecurity with respect to legal rights, statuses, and other relations.” Keystone Aerial Surveys, Inc. v. Pa. Prop. & Cas. Ins. Guar. Ass’n, 111 A.2d 84, 88 (Pa. Super. 2001) (quoting Juban v. Schermer, 751 A.2d 1190, 1193 (Pa. Super. 2000)). A declaratory judgment is appropriate in an action based on contract since “[a]ny person interested under a...written contract...may have determined any question of construction or validity arising under the...contract.... and obtain a declaration of rights, status, or other legal relations thereunder.” 42 Pa.C.S.A. § 7533.

In this case, plaintiff has asked the court to interpret the declaration, which governs the parties’ rights and obligations and is subject to Pennsylvania’s Uniform Condominium Act (“the Act”). 68 Pa.C.S.A. §§ 3101-3414. Under the act, “common expenses shall be assessed against all the units in accordance with the common expense liability allocated to each unit.” Id. § 3314(b). The act defines a “Unit” as “[a] portion of the condominium designated for separate ownership.” Id. § 3103.

The act’s definition of a unit does not differentiate between condominium lots with constructed buildings ready for habitation and vacant lots. See id. In Centennial Station Condo. Ass’n v. Schaeffer Co. Builders, Inc., 800 A.2d 379, 381 (Pa. Super. 2002), a developer challenged its liability for condominium fees for unbuilt or non-existent units. The Superior Court determined that because the act does not explicitly distinguish between unconstructed and constructed units, vacant lots are considered units under the act’s broad definition. Id. at 384. The court concluded that because vacant lots are encompassed by the definition, the owners of such lots were required to pay assessment fees to the condominium’s association. Id.

Nevertheless, the act permits a declaration to define terms differently than those terms are defined within the Act. 68 Pa.C.S.A. § 3101. If a term is defined by a condominium community’s declaration, the declaration’s definition will control the rights and obligations of the parties. Id. In the instant case, the declaration does not distinguish between unconstructed and constructed units. Rather, like Section 3103 of the act, section 1.32 of the declaration defines a “unit” as that “part of the condominium designated and intended for independent ownership and use.” (Stipulation of counsel, ex. A, section 1.32.) While section 2.2 describes a constructed “Unit” as “the space within the area bounded by the interior surface of its perimeter walls,” where, as here, there are simply vacant lots with no constructed buildings and, consequently, no perimeter walls, that “part of the condominium designated and intended for independent ownership and use” is logically represented by the lots designated on the plan. (Stipulation of counsel, ex. A, sections 1.32, 2.2.) In fact, the declaration defines an “owner” of a “unit” as “any person or entity which is the recorded or equitable owner of title to the surface of any Lot.” (Stipulation of counsel, ex. A, section 1.23.) In this case, it is undisputed that defendant has accepted the deed to nine lots in Tumberry Mews. Thus, defendant is the sole recorded “owner” of the title to the surface of the lots in question. Section 5.4 of the declaration states that “each owner by acceptance of a deed of real estate within the property is deemed to covenant and agree to pay to the association” assessments, including annual general assessments, as outlined in sections 5.4 through 5.13. (Stipulation of counsel, ex. A, sections 5.4-5.13.) Section 5.8 of the declaration states that “[t]he annual assessments shall commence on the date that a unit is conveyed to an owner.” (Stipulation of counsel, ex. A, section 5.8.) Accordingly, defendant is entitled to a declaration that defendant is obligated to pay assessments, including annual general assessments from the date it took title to the units, or from November 7, 2012. The amount due to plaintiff by defendant shall be determined at the trial on plaintiff’s complaint.

WHEREFORE, the court enters the following:

ORDER OF COURT

And now, this 16th day of January, 2014, “plaintiff’s petition for ancillaiy relief in the form of a declaratory judgment pursuant to Pa. R.C.P. 1602” is hereby granted, in part. It is hereby declared that defendant, Jams Profits, LLC, is required to pay assessments, including annual general assessments from November 7, 2012, for units 1A, IB, 1C, ID, IE, 7A, 7B, 7C, and 7D of Tumberry Mews Condominiums, pursuant to sections 5.4-5.13 of the “declaration of covenants, conditions and restrictions for Tumberry Mews” dated October 24, 2005.

The court administrator shall place this case on the next available status conference list for the court to set discovery deadlines and/or schedule the case for arbitration or a pretrial conference.

      . The parties agree that defendant Jams Properties, LLC “is not a proper party to the within action and may be dismissed as such upon motion of either counsel.” (Stipulation of Counsel ¶ 4.)

      . Defendant argues that the definition of “Owner” mentions “actual possession of a Unit,” implying that there must be a constructed Unit. (Stipulation of Counsel, Ex. A, section 1.23.) However, that phrase simply serves to bring security holders in actual possession of a Unit, whether a vacant lot or a lot with a structure on it, within the definition of the term “Owner.” (See id.) Further, as noted above, a vacant lot is a “Unit” pursuant to the Declaration. Defendant is the fee simple owner of the nine “Units” in question and does not hold the properties as a security interest for any obligation. Finally, section 5.4 of the Declaration never uses the term “Unit” to create the obligation to pay assessments. Rather, the obligation is created when a person or entity becomes an “Owner,” which includes the owner of a vacant lot. (See Stipulation of Counsel, Ex. A, section 1.23.)


author: LOVECCHIO, J.,

text:
    Commonwealth v. Thompson

      C.P. of Lycoming County,
    Nos. CR-36-2013; CR-1737-2013

      Eric R. Linhardt, for Commonwealth.

      Ronald C. Travis, for defendant.
    January 17, 2014 —
   LOVECCHIO, J.,

Before the court is defendant’s motion in limine filed on December 3, 2013.

Under Information 36-2013, defendant is charged with, among other things, driving under the influence of alcohol, incapable of safely driving, Refusal in violation of 75 Pa. C.S.A. § 3802 (a) (1). The incident underlying the charges is alleged to have occurred on December 25, 2012.

Under Information 1737-2013, the defendant is also charged with DUI and related offenses. Count 1 charges defendant with driving under the influence, incapable of safely driving in violation of 75 Pa. C.S.A. § 3802 (a) (1) and count 2 charges defendant with driving under the influence with a highest rate of alcohol in violation of 75 Pa. C.S.A. § 3802 (c).

The parties have stipulated that the grading of the DUI offense under information 36-2013 is a misdemeanor of the first degree in that it is defendant’s second offense within the ten-year look back period. The parties have also stipulated that count 2 under information 1737-2013 is also a misdemeanor of the first degree because it is defendant’s second offense within ten years.

Defendant’s motion in limine seeks a determination by the court that despite the grading of the respective DUI offenses, the maximum permitted by statute and applicable case law on each offense should be six months.

A hearing and argument on the motion in limine was held before the court on January 6, 2014. Defendant argued that the Superior Court decision in Commonwealth v. Musau was controlling as to the refusal count and that its reasoning should be determinative with respect to the highest rate count.

In Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013), a Superior Court panel concluded that although a refusal to submit to blood alcohol testing results in the grading of a DUI offense as a first degree misdemeanor, the maximum for a first or second conviction for such is six months imprisonment. Utilizing the rules of statutory construction, the court referred to the possibility of the legislature having different motives in grading an offense and fixing its punishment and that the specific language of a penalty trumped the general language of offense grading. The court held that the maximum sentence allowable for a conviction under 75 Pa. C.S.A. § 3802 (a) (1), incapable of safely driving, where the individual refused testing of blood or breath and has no more than one prior offense, is six months.

The Commonwealth argued that the court should not follow Musau, because a petition for allowance of appeal was filed with the Pennsylvania Supreme Court and the Pennsylvania Supreme Court accepted the appeal. The court acknowledges that a petition for allowance of appeal was filed to docket number 510 EAL 2013, but the docket does not reflect, and the court has been unable to find, an order granting the petition. Regardless, the Commonwealth has not cited any case or statutory authority to support its position that, because a petition for an appeal is filed, a duly filed and published opinion of the Superior Court need not be followed by the trial court. In fact, there is appellate case law to the contrary, such that not only is the trial court bound by the decision, but so are other panels of the Superior Court. See Marks v. Nationwide, 762 A.2d 1098, 1101 (Pa. Super. 2000)(even though petition for allowance of appeal was granted, decision of Superior Court remains binding precedent as long as it has not been overturned by the Pennsylvania Supreme Court), appeal denied, 788 A.2d 381 (Pa. 2001); Sorber v. American Motorists Ins. Co., 680 A.2d 881, 882 (Pa. Super. 1996)(Superior Court decision binding precedent despite pending petition for allowance of appeal).

Alternatively, the Commonwealth argued that the Superior Court decision in Commonwealth v. Mendez, No. 3274 EDA 2011, J-A25038-12 (October 15, 2012) (Memorandum opinion) should control. In Mendez, a different Superior Court Panel addressed the same issue, that being the contradiction between two separate sections of the DUI statute, but held that where a defendant has one prior DUI conviction and refuses chemical testing the individual commits a misdemeanor of the first degree and the maximum sentence allowed by law is five years. It is improper, however, for the Commonwealth to cite Mendez or rely on it in any way. Mendez is an unpublished, non-precedential memorandum decision. The internal operating procedures of the Superior Court specifically state: “An unpublished memorandum decision shall not be relied upon or cited by a court or a party in any other action or proceeding....” Super. Ct. I.O.P. §65.37. The Commonwealth has failed to provide the court with any case or statutory authority upon which the court could rely upon the Mendez decision, regardless of whether the court agreed with its reasoning.

This court is constrained to apply the decision in Musau to count 1 under information 36-2013. In this count, defendant is charged with DUI-incapable of safely driving in violation of Section 3802(a)(1). While Section 3803(b)(4) of the Vehicle Code states that an individual who violates Section 3802(a)(1) and who has one or more prior offenses commits a misdemeanor of the first degree, Section 3802(a)(1) provides that, notwithstanding the provisions of subsection (b), an individual who violates Section 3802(a) and has no more than one prior offense commits a misdemeanor for which the individual may be sentenced to a term of imprisonment of not more than six months. The Superior Court in Musau found that the word “notwithstanding” meant despite; therefore, despite the provisions of Section 3802(b)(4), the maximum term of imprisonment allowable for a second DUI incapable of safely driving offense where the individual refused blood or breath testing is six months. Applying the holding and reasoning of Musau, the court concludes that the maximum term of imprisonment to which defendant may be sentenced with respect to count 1 under information 36-2013 is six months. 75 Pa. C.S.A. § 3803(a)(1).

Under information 1637-2013, defendant argues that the DUI-highest rate of alcohol offense (count 2) should also be capped at a six-month sentence. The court cannot agree.

DUI with the highest rate of alcohol is not a violation of section 3802(a)(1). Instead, it is a violation of 75 Pa. C.S.A. § 3802 (c). Therefore, section 3802(a)(1) which limits the maximum sentence to six months does not apply to this count. Unlike an incapable of safely driving refusal case, the only statutory provision that limits a 3802 (c) offense to a term of imprisonment of not more than six months is when the individual has no prior offenses. 75 Pa. C.S.A. § 3803 (b) (2). The parties have stipulated that defendant has one prior offense within ten years. Therefore, section 3803(b)(2) does not apply and defendant’s sentencing exposure is not limited to six months of incarceration.

The determinative statutory provision where an individual violates § 3802 (c) and has one or more prior offenses is section 3803(b)(4), which provides that a DUI with the highest rate of alcohol is graded as a misdemeanor of the first degree. Because this is a second offense, the mandatory minimum is 90 days and the mandatory fine is $1,500.00. 75 Pa. C.S.A. § 3804. There being no other provision to the contrary, the statutory maximum for a misdemeanor of the first degree is five years. 18 Pa. C.S.A. §§ 106 (b) (6), 1104(1). Accordingly, the court holds that the maximum sentence applicable to count 2 under information 1737-2013 is five years, not the six months as claimed by defendant.

In conclusion, regardless whether the court agrees with the decision in Musau, the court is bound to apply its holding to similar facts. Our entire system of jurisprudence is dependent upon the principles of stare decisis and lower courts not making law but applying the law to the facts of a case. To do otherwise would create chaos in our legal system and invite a system of justice based on individual desires, whims and prejudices instead of a system based on laws and order.

ORDER

And now, this 17th day of January 2014, following a hearing and argument on defendant’s motion in limine, said motion is granted in part and denied in part. If defendant is convicted under Information 36-2013 with respect to count 1, driving under the influence incapable of safely driving (refusal), a misdemeanor of the first degree, his statutory maximum is six months. If defendant is convicted under information 1737-2013 with respect to counts 2, driving under the influence with a highest rate of alcohol, also a misdemeanor of the first degree, the maximum period of incarceration to which defendant could be sentenced is five years.

      . There are two exceptions to this rule, neither of which is applicable in this case.


author: STEINBERG, J.,

text:
    Commonwealth v. Woffard

      C.P. of Lehigh County,
    No CR-3741-2013

      Jay Jenkins, for Commonweatlh.

      Mark Merdinger, for defendant.
    January 17, 2014 —
   STEINBERG, J.,

The defendant, Junie Woffard, is charged with persons not to possess, use, Manufacture, Control, Sell or Transfer Firearms, and Firearms Not to be Carried Without a License, based on photographs which depict him in possession of a TEC-9 semi-automatic handgun. The defendant contends that the photographs, which were extracted from a cell phone, are not proper “silent witness” evidence, even though the defendant admitted during a police interview that he was holding a real TEC-9 in the photographs. He also admitted that the photographs were taken approximately two hours before a homicide which occurred on or about August 5, 2013.

“Photographs can be admitted under two theories of relevance: as illustrative of a witness’s testimony ... and as independent substantive evidence to prove the existence of what the photo depicts (also called the ‘silent witness’ use of a photograph)”. 2 McCormick on Evidence, § 215; Commonwealth v. McKellick, 24 A.3d 982, 993 (Pa. Super. 2011)(Donohue, J., dissenting)(A video of a crime in progress may be admitted as substantive evidence of a defendant’s guilt upon proper authentication). See also State v. Freeze, 2012 WL 6115671, slip. op. at *13 (Ohio Ct. App. 12th Dist. December 10, 2012)(photographic evidence is a silent witness which speaks for itself, and is substantive evidence of what it portrays.); People v. Taylor, 956 N.E.2d 431, 438 (2011)(“Most jurisdictions now allow photographs and videotapes to be introduced as substantive evidence so long as a proper foundation is laid. Such evidence is generally admitted under the ‘silent witness’ theory.”); State v. Anglemyer, 691 N.W.2d 153, 160 (2005)(collecting cases)(Under the silent witness theory of admission, photograph evidence may draw its verification not from any witness who has actually viewed the scene portrayed, but from other evidence which supports the reliability of the photographic content.).

A photograph to be admitted as substantive evidence, as alluded to above, must be properly authenticated by the testimony of a witness, with sufficient knowledge that the photograph is a fair and accurate depiction of the relevant scene. Commonwealth v. Rovinski, 704 A.2d 1068, 1074 (Pa. Super. 1997). However, a photograph may be admissible “without calling the person who took it”. Commonwealth v. White, 52 A.2d 360, 361 (Pa. Super. 1947).

Pa.R.E. 901(a) provides, in pertinent part, that “[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” One method for doing so is through the testimony of a witness with knowledge that “an item is what it is claimed to be”. Pa.R.E. 901(b)(1). Various evidentiary rules regarding the authentication of photographs have also evolved including: (1) the photograph has not been altered in any significant respect; (2) the method by which the camera was activated; (3) evidence of the time interval between frames, if applicable; (4) evidence of the date the photographs were taken; (5) the chain of custody of the film after its removal from the camera; and (6) testimony of a competent witness who can explain what the photograph portrays even though he was not present when the photograph was taken. McKellick, 24 A.3d at 994 n. 2 (Donohue, J., dissenting); 2 McCormick on Evidence § 215, pp. 32-33; In Anglemyer, 691 NW.2d at 159-161, the Supreme Court of Nebraska analyzed the authentication requirements of their rule 901, which mirrors the Pennsylvania rule. They have also concluded “photographic evidence may draw its verification not from any witness who has actually viewed the scene portrayed, but from other evidence which supports the reliability of the photographic product.” Id. at 160.

Here, the defendant authenticated the photographs. He admitted to Detective Raymond Ferraro of the Allentown Police Department the following: (1) the group photograph, which was introduced at the hearing in this matter, was taken only hours prior to the murder of Charles Bryant on August 5, 2013; (2) he is holding a “real TEC-9” in the photographs; (3) he was familiar with the magazine capacity and the use of a suppressor; (4) the group photograph included the defendant and the homicide victim, Charles Bryant; (5) he knew all four individuals in the group photograph, and upon Detective Ferraro’s request, identified each individual while Detective Ferraro wrote their names on the photograph; and (6) the group photograph was taken in the 900 block of Oak Street in Allentown, the same block in which Bryant was killed hours later.

The defendant’s authentication claim focuses on the fact that the photographs were recovered from the cell phone of a third-party, who consented to the police extraction of the photographs. This third-party was not called as a witness at the pretrial hearing, and the Commonwealth was not required to do so. Pierce v. Unemployment Compensation Bd of Review, 641 A.2d 727, 729 (Pa.Cmwlth. 1994) (Photographer need not be called if another witness can authenticate photos.). Detective Erik Landis extracted all the data from the cell phone using a universal forensic extraction device. A report was then generated, and eight (8) videos were discovered. Stills from those videos were presented to the defendant by Detective Ferraro.

The ability to authenticate the photographs is not limited to either the owner of the cell phone or the photographer. “Anyone with personal knowledge of what a photograph depicts may authenticate it.” Bernstein, 2012 Pa. Rules of Evidence, Comment 10(b)(1) to Pa.R.E. 901. This is not a novel theory. Dunbar v. United States, 15 S.Ct. 325, 329 (1895)(Defendant’s admission to writing document justified its introduction in evidence. An admission as to a writing is like an admission of any other fact.). See also Commonwealth v. Brooks, 508 A.2d 316, 318 (Pa. Super. 1986). The defendant, while not the only person competent to authenticate these photographs, was probably in the best position to do so. He could identify: (1) the persons in the photographs, (2) his possession of a “real TEC-9”, and (3) the date and time he was photographed. He was also familiar with the scene photographed and the accuracy of the photographs. His admissions authenticated the photographs.

The Commonwealth’s burden for authentication is “slight.” All that is required is a foundation from which the fact-finder could legitimately infer that the evidence is what the proponent claims it to be. United States v. Mebrtatu, 2013 WL 5814139 (3d Cir. Pa. October 30, 2013). The authentication burden has also been explained in the following way:

[Tjhere need be only a primafacie showing, to the court, of authenticity, not a full argument on admissibility. Once a prima facie case is made, the evidence goes to the jury and it is the jury who will ultimately determine the authenticity of the evidence, not the court. The only requirement is that there has been substantial evidence from which they could infer that the document was authentic.

United States v. Reilly, 33 F.3d 1396, 1404 (3d Cir. Del. 1994) quoting United States v. McGlory, 968 F.2d 309, 328-329 (3d Cir. Pa. 1992); see also Brooks, 508 A.2d at 320. Here, the Commonwealth has met its burden of establishing the authenticity of the photographs.

The defendant in his “motion for writ of habeas corpus” alleges that his statements cannot be used to establish a prima facie case. Additionally, in his “motion to dismiss pursuant to state [sic] of limitations/subject matter jurisdiction”, the defendant contends the Commonwealth failed to establish that the firearms not to be carried without a license offense occurred within the jurisdiction or within the statute of limitations. Specifically, it is alleged the Commonwealth did not establish when or where the video depicting the defendant holding the firearm was taken. The “silent witness” evidence, namely, the photographs, and the authentication of those photographs compels a contrary conclusion.

For all the forgoing reasons, the “Motion for Writ of Habeas Corpus” must be denied.

ORDER

And now, this 17th day of January, 2014, upon consideration of the defendant’s omnibus pretrial motions and hearings held on November 26, 2013 and December 9, 2013; upon further consideration of the defendant’s brief and caselaw submitted by counsel;

It is hereby ordered that the “Motion for Writ of Habeas Corpus” is denied.

      . 18 Pa.C.S. § 6105(a).

      . 18 Pa.C.S. § 6106(a)(1).

      . The TEC-9 “assault pistol . . . bears the dubious distinction of being one of the most widely used criminal guns in [the] U.S.A.... TEC-9 became famous for its [] appearance, large magazine capacity [], and for low price....For any serious or professional shooter this gun [is] of little value — it was too big and heavy to be carried comfortably, it was too unreliable when firing anything but FMJ ammunition, and the accuracy with very crude fixed sights was about marginal”. The TEC-9 and similar variants are banned in several states. World Guns, http://world.guns.ru/ handguns/hg/usa/intratec-dc-9-e.html (last visited January 6, 2014).

      . 2 McCormick on Evidence § 215 (Kenneth S. Broun et al., 7th ed. 2013).

      . Notes of testimony, pre-trial motion hearing (hereinafter N.T.PTM), pp. 35,41.

      . Id. at pp. 33, 36,43.

      . Id.

      . Id. at p. 34.

      . N.T.PTM at p. 36.

      . Id. at p. 27.

      . See Commonwealth’s exhibit 1A and IB.

      . For the first time, the defendant, in his “Brief in Support of Supplemental Omnibus Pretrial Motion,” alleges the statements made to Detective Ferraro should be suppressed because they were induced through promises of leniency. The totality of the circumstances, including any alleged inducement, must be considered in evaluating the voluntariness of a confession. Commonwealth v. Templin, 795 A.2d 959 (Pa. 2002). “[I]t is generally recognized that the police may use some psychological tactics in eliciting a statement from a suspect.” Miller v. Fenton, 796 F.2d 598, 603-605 (3d Cir. 1986). The question to be answered when such tactics are used is “whether they were so manipulative or coercive that they deprived [the suspect] of his ability to make an unconstrained, autonomous decision to confess.”). For example, encouraging a suspect to cooperate with the investigation and answer questions honestly is a permissible interrogation tactic. Commonwealth v. Nester, 709 A.2d 879 (Pa. 1998). “The question of voluntariness is not whether the defendant would have confessed without interrogation, but whether the interrogation was so manipulative or coercive that it deprived the defendant of his ability to make a free and unconstrained decision to confess.... [A] court should look at the following factors: the duration and means of the interrogation; the physical and psychological state of the accused; the conditions attendant to the detention; the attitude of the interrogator; and any and all other factors that could drain a person’s ability to withstand suggestion and coercion.” Commonwealth v. Harrell, 65 A.3d 420, 434 (Pa. Super. 2013) quoting Nestor, 709 A.2d at 882; see also Commonwealth v. Bryant, 67 A.3d 716, 724 (Pa. 2013).
      Here, the statements of the defendant were not the product of coercion. The defendant appeared voluntarily at the probation office as a witness to the homicide, not as a suspect, and the interview lasted approximately one (1) hour. Prior to being asked any questions about a firearm, Detective Ferraro properly advised the defendant of his Miranda rights and the defendant explicitly waived these rights and agreed to speak with Detective Ferraro. The defendant is unable to point to any of the relevant factors to suggest his statement was not voluntary and the inducement in this matter did not “choke off the legal process at the very moment which Miranda was designed to protect.” Templin, 795 A.2d at 965 citing Commonwealth v. Gibbs, 553 A.2d 409 (Pa. 1989)(authorities are not permitted to employ inducements which impair in any way a suspect’s right to his own unfettered evaluation of the need for legal counsel.). This case is distinguishable from Gibbs in that this defendant explicitly waived his rights prior to the promise made by Detective Ferraro to forgo federal prosecution if the defendant was truthful. The absence of any misstatement or misleading promise weighs in favor of a finding of voluntariness. Templin, 795 A.2d at 967. We note that Detective Ferraro has been true to his promise and that federal charges have not been pursued.


author: MOTTO, P.J.,

text:
    Bank of New York v. Brown
    C.P. of Lawrence County,
    No. 11365 of 2007, C.A.

      Gretchen Woodruff, for plaintiff.

      Judy D. Brown, pro se defendant.
    January 23, 2014 —
   MOTTO, P.J.,

Before the court for disposition is the pro se “motion to court” filed by the defendant, Judy D. Brown. The motion requests that the judgment in mortgage foreclosure entered in this case on October 30, 2007 be vacated pursuant to 42 Pa.C.S.A. §5526 that provides that an action for revival of a judgment lien on real property be commenced within five years. More than five years have passed since the entry of the judgment and no action for revival of a judgment lien has been commenced. The motion further requests that the complaint in mortgage foreclosure be dismissed with prejudice pursuant Pa.R.C.P. 230.2 Pa. RJ.A. 1901, and Local Rule L.1901 due to inactivity.

The court will deny the defendant’s motion because the court finds that the Lien Revival Statute, §5526 has no application to a judgment in mortgage foreclosure and because the rules relating to inactivity of pending cases apply to only proceedings prior to entry of a final judgment.

These proceedings commenced on September 12, 2007, with the filing by plaintiff of a complaint in mortgage foreclosure against the defendant as the result of the defendant’s default on a mortgage on her residence at 2017 West Washington Street, New Castle, Lawrence County, Pennsylvania. Defendant was properly served with the complaint. The defendant failed to respond to the complaint. On October 31, 2007, an in rem default judgment in mortgage foreclosure was entered against the defendant. On December 14,2007, plaintiff filed a motion for equitable conversion to real property contending that a mobile home located on the real estate was converted to real property by reason of being affixed to the premises. The court issued a rule upon defendant to show cause why it should not order that the dwelling located on the mortgaged premises should not be converted to real estate. The rule was made returnable January 3, 2008. Upon defendant’s failure to respond to the rule, the rule was made absolute and the requested relief was granted.

Defendant took no action on the record until on or about June 7, 2012 when defendant filed a “motion to court” seeking a hearing for review of evidence. This was a first of a series of actions taken by defendant to belatedly seek relief from the judgment that had been entered against her nearly five years previous. The “motion to court” was denied by order dated July 30, 2012. On or about May 7, 2013, defendant filed a complaint against Bank of America, the loan servicer, which was dismissed on or about June 10, 2013. On June 17, 2013, defendant filed a motion to dismiss foreclosure complaint, which was denied on or about July 1, 2013. On or about July 7, 2013, defendant filed a petition to open default judgment and an “ammended [sic] petition” the following day. By opinion and order dated November 18, 2013, that motion was also denied.

A judgment or other order for the payment of money of a court of common pleas constitutes a lien on the defendant’s real property, with the priority provided for by statute or prescribed by general rule adopted pursuant to statute when it is properly entered of record. Standard Pennsylvania Practice, §70:35, Vol. 11, p. 422.42 Pa. C.S. § 1722(b); 42 Pa. C.S. §4303(a).

42 Pa.C.S.A. §5526 provides in pertinent part as follows:

The following actions and proceedings must be commenced within five years:
(1) an action for revival of a judgment lien on real property.

The lien of a money judgment on defendant’s real property exists only for five years unless revived. The lien must be revived to maintain or obtain a new place of priority. It is the lien that is revived, not the judgment. There is no outer time limit to execute against real property to satisfy a judgment but the proceeds of such a sale must be distributed according to the priority of liens. Thus, without limitation, the holders of judgment liens can revive the judgment lien as often as they wish and execute against any real property that the debtor owns or may come to own in the future. Shearer v. Naftzinger, 560 Pa. 634, 747 A.2d 859 (2000). Thus, where a writ of revival is filed more than five years after judgment, and therefore outside of the five-year limitations period codified in §5526, the lien is not extinguished but merely assumes a priority lower than liens in effect before the writ of revival is commenced. See Popatak v. Evans, 26 Pa. D&C 4th 244 (1995).

A judgment obtained in a mortgage foreclosure action is only in rem or de terris. Insilco Corp. v. Rayburn, 374 Pa. Super. 362, 543 A.2d 120 (1988); Meco Realty Co. v. Burns, 414 Pa. 495, 200 A.2d 869 (1964). As a judgment against land only, it imposes no personal liability upon the mortgagors against whom the judgment is obtained. A judgment in a mortgage foreclosure action is not a judgment for money damages. Meco Realty Co., Id. The sole purpose of the judgment obtained through an action of mortgage foreclosure is to effect a judicial sale of the mortgaged property. Meco Realty Co., Id. First Seneca Bank v. Greenville Distributing Co., 367 Pa. Super. 558, 533 A.2d 157 (1987). Insilco Corp. v. Rayburn, Supra.

The judgment that is obtained in an action in mortgage foreclosure applies only to the property covered by mortgage, and, as a de terries judgment, is a judgment against that specific real property. Chase Home Mortg. Corp. v. Goode, 370 Pa. Super. 570, 537 A.2d 22 (1988); Union Nat. Bank of Pittsburgh v. Ciongoli, 407 Pa. Super. 171, 595 A.2d 179 (1991).

In Steinhardt v. Russian Orthodox Catholic Mut. Aid Soc. Of U.S., 366 Pa. 222, 77 A.2d 393 (1951), the Supreme Court held that where a judgment is entered on a bond accompanying a mortgage of record the lien of the judgment, so far as the mortgaged premises are concerned, relates back to the date of the mortgage, citing Keene Home v. Startzell, 1912, 235 Pa. 110, 83 A. 584; West Arch Building and Loan Ass’n v. Nichols, 1931, 303 Pa. 434, 154 A. 703. Further, the Supreme Court in Steinhardt said the following:

As to the mortgaged premises therefore (i.e., parcel no. 2) the validity of the sale in no sense depends on timely periodic continuance of a judgment lien, for proceedings thereon derived their effectiveness not from the lien of the judgment but from the lien of the mortgage, which needs no revival and continues until satisfied or discharged.

The court here finds that in view of the foregoing authorities, 42 Pa.C.S.A. §5526 has no application to a judgment in mortgage foreclosure. An in rem judgment in mortgage foreclosure does not constitute a money judgment that operates as judgment lien on all real property of the debtor requiring a revival proceeding to be commenced within five years. The judgment in mortgage foreclosure creates no personal liability upon the defendant and does not constitute a lien upon any property of the defendant other than the mortgaged property. The mortgage foreclosure judgment is not affected by the law relating to the priority of liens as the lien relates back to the recording of the mortgage and derives its effectiveness from the mortgaged document itself and not from the judgment. The court finding that §5526 does not apply to an in rem judgment in mortgage foreclosure, defendant’s motion to vacate the judgment for non-compliance with such section will be denied.

Defendant next argues that the complaint filed in this case must be dismissed with prejudice pursuant to Pa.R.C.P. 230.2 and Pa.R.J.A. 1901 for “lack of activity”. However, it is clear that these rules have no application to a case that has proceeded to final judgment. The purpose of these rules is to eliminate cases from the judicial system where the parties have failed to proceed and which are carried as open matters because of the failure on the part of any party to seek dismissal or otherwise bring the matter to a conclusion. Note 2, Pa.R.J.A. 1901. Defendant has cited no case nor has the court’s research found any case which provides for any judgment to be set aside in an action dismissed because of any lack of activity in timely enforcing the judgment. The cited rules are clearly intended to apply to claims which have been abandoned or resolved by the parties without a final judgment. Here, the case has resulted or a final judgment and inactivity in enforcing that judgment is not contemplated by the cited rules. See Taylor v. Oxford Land, Inc., 338 Pa. Super. 609, 488 A.2d 59, 61-62 (1985). Accordingly, defendant’s motion to dismiss on the basis of inactivity in enforcing the judgment will also be denied.

ORDER OF COURT

And now, this 23rd day of January, 2014, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered, adjudged and decreed that the defendant’s “motion to court” is hereby denied with prejudice.