author: HODGE, J.,

text:
    Lowery-Shannon v. Shannon

      C.P. of Lawrence County,
    No. 10487 of 2014, CA

      Bradley G. Olson, Jr., for plaintiff.

      Todd M. Begg, for defendant.
    Nov. 14, 2014
   HODGE, J.,

This opinion is issued pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure in support of the order of court dated October 20, 2014 from which plaintiff appeals and contends that this court committed the following errors:

1. The trial court committed reversible error by failing to accept jurisdiction pursuant to 23 Pa.C.S.A. §5423 as the Lawrence County Court of Common Pleas has jurisdiction to make an initial determination under 23 Pa.C.S.A. §5421 and there is no dispute that the parties reside in Lawrence County, Pennsylvania and not Ohio;
2. The trial court committed reversible error and abused its discretion by failing to accept jurisdiction pursuant to 23 Pa.C.S.A. §5423 on the grounds that the Court of Common Pleas of Cuyahoga County, Ohio, has not relinquished jurisdiction as the uniform child custody jurisdiction and enforcement act does not require the state of original jurisdiction to relinquish custody before the courts of this Commonwealth can accept jurisdiction so long as the requirements of §5423 are met;
3. The trial court committed reversible error and abused its discretion by summarily declining to exercise emergency jurisdiction pursuant to 23 Pa.C.S.A. §5424, as requested within the plaintiff’s petition for special relief, without conducting a hearing on the matter and evaluating the merits of the petition;
4. The trial court committed reversible error by simply concluding that “the facts and circumstances alleged in the [plaintiff’s] petition [for special relief] do not rise to the level necessary for this court to exercise emergency jurisdiction pursuant to 23 Pa.C.S.A. §5424” without addressing the claims of potential neglect or abuse that were contained within the plaintiff’s petition for special relief and explaining why such circumstances do not meet the requirements for emergency jurisdiction;
5. The trial court committed reversible error and abused its discretion by granting defendant’s petition for counsel fees when the presentation of defendant’s request for such fees was in violation of the Lawrence County Court of Common Pleas local rules of procedure L208.3 (a) (7) which requires litigants to provide the opposing party with at least two (2) days advanced notice of their intent to present a motion and the defendant failed to provide any advanced notice to the plaintiff of his intent to present such request and allow plaintiff a meaningful opportunity to respond;
6. The trial court committed reversible error and abused its discretion by granting defendant’s petition for counsel fees by declaring that plaintiff has engaged in repetitive filings pursuant to 23 Pa.C.S.A. §5339, when the facts and circumstances demonstrate that the plaintiff’s filings were not repetitive but instead based upon separate and distinct issues relative to the safety of the minor child in question; and
7. The trial court committed reversible error and abused its discretion by granting defendant’s petition for counsel fees pursuant to 23 Pa.C.S.A. §5339, which is a provision established under the child custody act and not any provision of the UCCJEA. Plaintiff suggests that the trial court cannot selectively accept jurisdiction and enforce certain provisions of the child custody act while declining to accept and enforce the remainder of its provisions.

The plaintiff, Amy Lowery-Shannon (hereinafter, “mother”), and the defendant, Brian Shannon (hereinafter, “father”), are the natural parents of two minor children, William Shannon, born January 15, 2007 and Charles Shannon, bom June 2, 2008. On May 9, 2014, the plaintiff, Amy Lowery-Shannon (hereinafter, “mother”) filed a motion to register foreign custody order. On that same date, mother filed a motion to modify custody. Prior to mother registering the existing custody order with the Court of Common Pleas of Lawrence County, the parties engaged in extensive litigation in the Cuyahoga County Court of Common Pleas of the State of Ohio. The honorable judge Diane M. Palos of the Cuyahoga County Court of Common Please issued an extensive opinion regarding custody of the minor children on November 1, 2013. This order provided the father with sole legal custody and awarded the parties shared physical custody of the minor children.

In her motion to modify custody, mother stated that this court is the proper venue to pursue mother’s claim for custody because the parties both currently live in Lawrence County, and that the Cuyahoga County Court inappropriately awarded the parties shared physical custody and father primary legal custody. On this basis, mother sought modification of the November 1, 2013 custody order. Father, however, opposed mother’s request, and responded by filing a motion to decline jurisdiction pursuant to the UCCJEA and to dismiss on June 4, 2014. Mother filed a second motion to modify custody and a petition for special relief on June 24,2014, at which time the court issued an order denying mother’s requests to modify custody and reinstating the November 1, 2013 custody order from Cuyahoga County. This court concluded that it would not assume jurisdiction over the instant case until the Court of Common Pleas of Cuyahoga County, Ohio issued an order relinquishing jurisdiction.

On October 21, 2014, mother again filed a petition for special relief, wherein mother stated the parties’ minor child, William, returned home to mother with bruises on his buttock and thigh. Mother stated that she sought medical attention for William, and that in addition to the bruising, the minor child suffered a fracture to his foot. Mother requested the court to award her primary physical and sole legal custody of William pending a hearing. Father responded by filing an answer and new matter: petition for counsel fees. Upon review of mother’s petition and father’s answer and new matter, this court issued an order on October 21, 2014 denying mother’s petition for special relief and granting father’s request for attorney’s fees. Mother then filed a timely appeal.

The proper standard of review when reviewing a trial court’s application of the Uniform Child Custody Jurisdiction and Enforcement Act (hereinafter, “UCCJEA”) is as follows:

A court’s decision to exercise or decline jurisdiction [per the UCCJEA] is subject to an abuse of discretion standard of review and will not be disturbed absent an abuse of discretion. Under Pennsylvania law an abuse of discretion occurs when the court has overridden or misapplied the law, when its judgment is manifestly unreasonable, or when there is insufficient evidence of record to support the court’s findings. An abuse of discretion requires clear and convincing evidence that the trial court misapplied the law or failed to follow proper legal procedures.

J.M.R. v. J.M., 1 A.3d 902, 908 (Pa. Super. 2010) (citing Wagner v. Wagner, 887 A.2d 282, 285 (Pa. Super.2005)).

In evaluating whether a court of this Commonwealth may modify a custody determination made by a court of another state, the UCCJEA provides the following relevant provision:

§5423. Jurisdiction to modify determination Except as otherwise provided in section 5424 (relating to temporary emergency jurisdiction), a court of this Commonwealth may not modify a child custody determination made by a court of another state unless a court of the Commonwealth has jurisdiction to make an initial determination under section 5421(a)(1) or (2) (relating to initial child custody jurisdiction) and:
(1) the court of the other state determines that it no longer has exclusive jurisdiction under section 5422 (relating to exclusive, continuing jurisdiction) or that a court of this Commonwealth would be a more convenient forum under section 5427 (relating to inconvenient forum); or
(2) a court of this Commonwealth or a court of the other state determined that the child, the child’s parents and any person acting as a parent do not presently reside in the other state.

23 Pa.C.S. §5423.

Therefore, pursuant to 23 Pa.C.S. §5423, this court first examined whether there is jurisdiction over the instant custody matter pursuant to 23 Pa.C.S. §5421 regarding initial custody jurisdiction. Section 5421 provides:

§ 5421. Jurisdiction

(a) General Rule. — Except as otherwise provided in section 5424 (relating to temporary emergency jurisdiction), a court of this Commonwealth has jurisdiction to make an initial child custody determination only if:
(1) this Commonwealth is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this Commonwealth but a parent or person acting as a parent continues to live in this Commonwealth;
(2) a court of another state does not have jurisdiction under paragraph (1) or a court of the home state of the child has declined to exercise jurisdiction on the ground that this Commonwealth is the more appropriate forum under section 5427 (relating to inconvenient forum) or 5428 (relating to jurisdiction declined by reason of conduct) and:
(i) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this Commonwealth other than mere physical presence; and (ii) substantial evidence is available in this Commonwealth concerning the child’s care, protection, training and personal relationships.
(3) all courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this Commonwealth is the more appropriate forum to determine the custody of the child under section 5427 or 5428; or
(4) no court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3).

23 Pa.C.S. § 5421 (a).

As indicated from a strict application of Sections 5423 and 5421, this court is unable to assume jurisdiction over the instant case unless and until all courts having jurisdiction have declined to exercise jurisdiction on the ground that a court of this Commonwealth is the more appropriate forum. To date, the Court of Common Pleas of Cuyahoga County, Ohio has not issued an order declining jurisdiction. Consequently this court declined to assume jurisdiction of this case. Therefore, the court determines mother’s first and second matters complained of on appeal are without merit.

Mother next contends this court committed reversible error for denying her second petition for special relief and failing to exercise emergency jurisdiction pursuant to 23 Pa.C.S.A. §5424. Section 5424 of the UCCJEA provides that:

A court of this Commonwealth has temporary emergency jurisdiction if the child is present in this Commonwealth and the child has been abandoned or it is necessary in an emergency to protect the child because the child or a sibling or parent of the child is subjected to or threatened with mistreatment or abuse.

23 Pa.C.S.A. §5424(a).

In her petition for special relief, mother alleged that the minor child, William, returned to her custody with bruises on his buttock and thigh. Mother further alleged that William suffered a fractured foot while in father’s custody. Father filed a response to this petition stating that mother was attempting to usurp the current custody order and exponentiate her concerns to father’s determent. Given the thorough analysis issued by the Cuyahoga Court of Common Pleas, wherein that court discussed mother’s repeated attempts to circumvent father’s custodial time by making unsubstantiated allegations of abuse, this court concluded that mother did not present an emergency, and this court again declined jurisdiction.

Furthermore, given the court’s prior directives to each of the parties that the current custody order would not be modified absent an order from Cuyahoga County relinquishing jurisdiction, the court finds mother’s request to modify the current order on an emergency basis to be insincere. If mother truly believed the child was subject to mistreatment or abuse by father, her concerns should have been presented to the Cuyahoga County Court. For these reasons, the court finds mother’s third and fourth matters complained of on appeal to be without merit.

Lastly, mother contends that this court erred in granting father’s request for counsel fees. The standard of review of an award of counsel fees is well settled: the appellate courts will not disturb a trial court’s determination absent an abuse of discretion. Verholek v. Verholek, 741 A.2d 792, 795 (Pa. Super. 1999). A trial court has abused its discretion if it failed to follow proper legal procedures or misapplied the law. Id. See also Thunberg v. Strause, 682 A. 2d 295 (Pa. 1996).

Mother raises three arguments against this court’s award of counsel fees. Initially, mother asserts that father’s request for counsel fees is improper because father failed to give mother two days advanced notice of his request pursuant to local rule L208.3(a)(7). In response to mother’s contention, the court must state that mother’s counsel appeared before the court and fielded the request without raising any objection to the court. When mother’s second petition for special relief and father’s answer were before the court for disposition, the court ruled on the outstanding issues because it was unaware there was any objection pending as none were presented on the record. For this reason, the court does not believe mother’s argument is preserved for the Superior Court’s review.

Mother’s second assertion contends that the facts and circumstances of this case demonstrate that mother’s filings were not repetitive. However, this court has definitively concluded otherwise. This court’s award of counsel fees relied on Section 5339 of the child custody act, in addition to the case of Dong Yuan Chen v. Saidi, 2014 WL 4290791, 2014 Pa. Super. 190 (2014). Section 5339 provides the authority for the award of counsel fees and costs in custody matters, including cases where a party’s conduct is “obdurate, vexatious, repetitive or in bad faith.” Saidi 2014 Pa. Super, at *3. (citing Verholek v. Verholek, 741 A.2d at 795). Section 5339 states:

Under this chapter, a court may award reasonable interim or final counsel fees, costs and expenses to a party if the court finds that the conduct of another party was obdurate, vexatious, repetitive or in bad faith.

23 Pa.C.S. § 5339.

The language set forth in the child custody act parallels that of Sections 2503(7) and (9) of the judicial code, 42 Pa.C.S. § 2503, with the only distinction being the inclusion of the word repetitive in the provisions set forth at 23 Pa.C.S.A. §5339. Although mother contends that her actions were not repetitive or vexatious, the court believes that the record developed in the instant case, in addition to the opinion issued by the Cuyahoga County Court, clearly support an alternative conclusion.

Finally, mother argues that this court committed reversible error by granting father’s request for counsel fees, pursuant to 23 Pa.C.S.A. §5339, but failed to assume jurisdiction, pursuant to Sections 5421 and 5423. Mother contends that this court is selectively applying provisions of the child custody act, and has therefore committed reversible error. The court believes mother’s allegations to be a wholly inaccurate representation of this court’s extensive consideration and subsequent application of the child custody act. The court endeavored to fairly apply the applicable provisions of the child custody act in determining whether jurisdiction was properly vested with this court. The court cannot and did not unilaterally pick specific provisions to enforcement merely in order to issue a determination that did not carry favor with mother.

Having addressed each of mother’s matters complained of on appeal, this court determines that the issues raised are without merit and the existing orders should remain in full force and effort.

ORDER OF COURT

And now, this 14th day of November, 2014, the court having received appellant’s concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925, and with the court issuing the attached opinion in response to the concise statement of errors complained of on appeal, the court hereby orders and decrees as follows:

1) Pursuant to Rule 1931 of the Pennsylvania Rules of Appellate Procedure, the prothonotary shall assemble the record and transmit the same to the prothonotary of the Superior Court as required by the applicable rules of appellate procedure.

2) The prothonotary shall properly serve notice of this order of court upon counsel of record for the parties.


source: Caselaw Access Project

author: ANDERSON, J.,

license: Public Domain

text:
    Bailey v. Anadarko E&P Company, LP

      C.P. of Lycoming County,
    No. 08- 02,327
    Dec. 10, 2014
   ANDERSON, J.,

Before the court is additional plaintiffs’ motion for summary judgment, filed September 9, 2014. Argument on the motion was heard November 4, 2014.

On July 19, 2013, plaintiff and additional plaintiffs filed a second amended complaint in action to quiet title, alleging fee simple ownership of a 168 acre tract of land in Pine Township. Plaintiffs allege that although the Hoyt defendants reserved all oil, gas and mineral rights to themselves when deeding the property to Elk Tanning Company in 1893, those rights were lost through either abandonment (Count 1), a tax sale in 1910 (Count 2), or a second tax sale in 1940 (Count 3), and, in Count 4, plaintiffs assert that defendants lack standing to challenge plaintiffs’title. In the instant motion for summaryjudgment, plaintiffs seeks judgment on Counts 2 and/or 3. Because the court finds the tax sale of 1910 extinguished the 1893 reservation, thus terminating any claims by defendants, additional defendants or counter-claim plaintiffs, only Count 2 will be addressed.

Plaintiffs’ claim stems from a tax sale held June 2, 1910, which they contend reunited the previously severed subsurface estate with the surface estate because the owner of the subsurface estate never reported the severance to the taxing authorities, the property was thus assessed and sold as a whole, and the property was never redeemed. Plaintiffs contend there are no issues of fact and they are entitled to judgment as a matter of law, citing Herder Spring Hunting Club v. Keller, 93 A.3d 465 (Pa. Super. 2014), in support of their position. Defendant objects to entry of summary judgment on various grounds and, in the process, argues that Herder Spring was wrongly decided. Such an argument to this court must necessarily fall on deaf ears and although defendant’s objections will be addressed seriatim, to the extent an objection requires this court to ignore Herder Spring, it will be addressed no further.

Defendant first argues that the tax deed did not pass title to the subsurface estate because the taxing authorities lacked the statutory authority to assess the subsurface estate as such did not constitute “lands”, citing Coolspring Stone Supply v. Fayette County, 929 A.2d 1150 (Pa. 2007), and Independent Oil & Gas Association of Pennsylvania v. Board of Assessment Appeals of Fayette County, 814 A.2d 180 (Pa. 2002). While the court in Independent Oil & Gas did hold that there is no statutory authority for the assessment of real estate taxes on oil and gas interests, it later announced that such holding would not be applied retroactively. Oz Gas, Ltd. v. Warren Area School District, 938 A.2d 274 (Pa. 2007). Thus, at the time of the sale, the assessment was valid under the law then in effect, and this argument to the contrary is without merit.

Defendant similarly argues that the taxing authorities could not assess the subsurface estate as no production was occurring which would have provided a basis for valuation. This argument was rejected in Herder Spring, which looked to the Pennsylvania Supreme Court’s ruling in Bannard v. New York State Natural Gas Corporation, 293 A.2d 41 (Pa. 1972), that although mineral rights should not be taxed as if gas or oil existed if it did not, a tax sale believed to be improper because of overvaluation cannot be collaterally attacked fifty years later. Herder Spring, supra, fn. 11. In this matter, the attack comes over 100 years later and will not be countenanced.

Next defendant argues that any failure to report the severance cannot serve as a basis for the extinguishment of the subsurface rights through the tax sale as, under a strict construction of the Act of 1806, there was no duty to report the severance. The court in Herder Spring specifically found, however, that “[t]he person who severed rights to unseated land was under an affirmative duty imposed by statute to inform the county commissioners or appropriate tax board of that severance, thereby allowing both portions of the property to be independently valued.” Id. at 471. This argument is therefore without merit.

Relatedly, defendant argues that plaintiffs have produced no evidence the property was unseated. Such is unnecessary, however, in light of defendants’ admission that it was.

Defendant next argues that even if there was a duty to report the severed oil and gas estate to the taxing authorities, plaintiffs have offered no evidence that such notice was not given. Plaintiffs are entitled to a presumption, however, that “all actions, such as recording and assessing severed rights, that were required to be taken were taken.” Id. at 473. That is, if the severance had been reported, it would have been recorded and assessed. According to Herder Spring, “failing any affirmative proof to the contrary”, the court may conclude the severance was not reported. Id.

Apparently recognizing this burden of proof, defendant offers evidence that Williamsport has suffered flooding in 1894, 1902, 1904 and 1910, that the courthouse has “flooded on several occasions,” and that “the Lycoming County Historical Society does not possess any notices to the board of commissioners dating from the late 1800’s to the early 1900’s that would have been given under the Act of March 28, 1806.” Defendant points to language in Herder Spring, that “[t]here is nothing in the certified record to suggest that the records of Centre County were ever subject to flood, fire, or some other calamity or negligence such that it might be presumed that relevant records were lost or destroyed. Absent such proof, we cannot presume such extraordinary events and the loss or destruction of records.” Id. at 472-73. Defendant contends the proffered evidence in the instant case is sufficient to entitle it to a presumption that the severance was reported but that record of such has been lost or destroyed. The court does not agree, for two reasons. First, defendant has not alleged anywhere in its pleadings that the severance was reported. Second, the court believes there must be evidence that the records were subject to a calamity, not merely that there was a calamity in the general location. The evidence offered by defendant in this matter is not sufficient to give rise to the sought-after presumption. In any event, Herder Spring requires the proof to be offered within the two-year redemption period, which has not been done here.

Defendant next argues that even if the Act of 1806 imposes a duty to report the severance, and even if the court concludes the severance was not reported, the Act provides the specific penally of four-fold taxation, not the confiscation of the property. The identical argument was rejected by the court in Herder Spring, however, which concluded that “the four-fold penalty was to be imposed in those situations where no tax sale had taken place.” This argument is therefore without merit.

Next, defendant asks the court to consider the holding of Tidewater-Pipe Company v. Bell, 124 A. 351, 355 (Pa. 1924), (wherein it was determined that a right-of-way had not been lost in a tax sale of the property) that the Act of 1804 “divests only those prior claimants to the estate and interest of the real owner of the unseated land that was assessed and sold, and not others whose estates or interests were duly severed and recorded prior to the assessment.” Defendant specifically points to the following language:

It is the “estate and interest. . . [of] the real owner or owners” of the land sold, which passes by the sale, and not some other estate or interest, which the “real owner or owners” did not have. The default of “the real owner or owners” was the failure to pay taxes on the land, which they owned and which was subject to the right-of-way; the title which the purchaser acquired was the title of that “real owner or owners,” and not also an interest of some other owner, not taxed or referred to in the statute.

Id. Defendant argues that since the mineral rights had been severed and did not belong to the owner of the surface, and since the reservation of mineral rights had been recorded, that interest did not pass to the purchaser at the tax sale. Defendant fails to note, however, the previous sentence: “We therefore hold that if land is sold for taxes, an easement, servitude, or interest in the nature of an easement, is not destroyed, but the purchaser takes subject thereto.” Id. (emphasis added). Unlike a subsurface estate, a right-of-way does not make one a “holder of unseated lands” and thus subject to the Act of 1806, and indeed, that Act was not implicated in the court’s decision. Even the last phrase of the language highlighted by defendant acknowledges the distinction: “an interest of some other owner, not taxed or referred to in the statute.” The Act of 1806 does refer to the subsurface estate previously owned by defendant and makes such taxable. Herder Spring, supra. The holding of Tidewater-Pipe is therefore not applicable.

Next, defendant contends plaintiffs have produced no evidence of compliance with the required tax sale procedures, including the providing of notice. Plaintiffs do not have such a burden, however, as the Act of 1815 “substitute[ed] the ‘presumption that everything was rightly done, for the proof that it was rightly done.’” Herder Spring, supra, at 469, quoting Morton v. Harris, 9 Watts 319 (Pa. 1840). Further, defendant’s objection to procedural irregularities is barred by the two-year redemption period. Id. (“The original owner was prevented from offering specific proof of irregularity of process, after a ‘lapse of two years from the time of sale.”’)

Finally, defendant argues that the notice provisions of the tax sale laws in effect in 1910, which allowed notice by publication, violated the Hoyts’ right to due process of law, citing Mullane v. Central Hanover Bank & Trust Company, 339 U.S. 306 (1950), and Mennonite Board of Missions v. Adams, 462 U.S. 791 (1983). Defendant’s reliance on these cases is misplaced, however:

Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case....
An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance[.] But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met, the constitutional requirements are satisfied. “The criterion is not the possibility of conceivable injury but the just and reasonable character of the requirements, having reference to the subject with which the statute deals.”...
This court has not hesitated to approve of resort to publication as a customary substitute in another class of cases where it is not reasonably possible or practicable to give more adequate warning. Thus it has been recognized that, in the case of persons missing or unknown, employment of an indirect and even a probably futile means of notification is all that the situation permits and creates no constitutional bar to a final decree foreclosing their rights....
Accordingly we overrule appellant’s constitutional objections to published notice insofar as they are urged on behalf of any beneficiaries whose interests or addresses are unknown to the trustee.

Mullane, supra, at 313-18 (citations omitted).

Similarly, in Mennonite Board of Missions, while the court held that a mortgagee is entitled to notice reasonably calculated to apprise him of a pending tax sale, and that unless the mortgagee is not reasonably identifiable, constructive notice alone does not satisfy the mandate of Mullane, that holding was based on the fact that the mortgagee “clearly has a legally protected property interest”. Mennonite Board of Missions, supra, at 798.

What defendant overlooks is the fact that by failing to report the severance to the taxing authorities as required by the Act of 1806, the Hoyts no longer had a legally protected interest and, as far as the taxing authorities were concerned, their interest was unknown. In Texaco, Inc. v. Short, 454 U.S. 516 (1982), the United States Supreme Court upheld an Indiana statute which provided for the abandonment of mineral interests unused for twenty years unless certain actions were taken by the holder of such interests. The court relied on prior cases in which the power of the state, to condition the retention of a property right upon the performance of an act within a limited period of time, was acknowledged. The court specifically noted that “[i]n each instance, as a result of the failure of the property owner to perform the statutory condition, an interest in fee was deemed as a matter of law to be abandoned and to lapse.” Id. at 529. In the instant case, the Act of 1806 required the reporting of severed mineral interests, and the tax assessor’s sale of the whole, based on a presumption that no severance had occurred because none had been reported, followed by a failure to redeem the property, could be viewed as a deemed abandonment of the interest. Since it was abandoned, it was not entitled to the legal protection of actual notice of its proposed sale for non-payment of taxes.

In response to defendant’s related argument that the Hoyts had no notice that the Act of 1806 required them to report the severance, the court simply notes that “[i]t is well established that persons owning property within a State are charged with knowledge of relevant statutory provisions affecting the control or disposition of such property.” Id. at 532. Further, “[it] has long been established that ‘laws [must] give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly,’ but it has never been suggested that each citizen must in some way be given specific notice of the impact of a new statute on his property before that law may affect his property rights.” Id. at 535-36 (citation omitted).

Further, defendant’s attempt to distinguish Texaco because it does not involve a tax statute is unavailing. In noting the well-established rule that “persons owning property within a State are charged with knowledge of relevant statutory provisions affecting the control or disposition of such property”, Id. at 532, the court quoted North Laramie Land Co. v. Hoffman, 268 U.S. 276, 283 (1925), as follows:

All persons are charged with knowledge of the provisions of statutes and must take note of the procedure adopted by them; and when that procedure is not unreasonable or arbitrary there are no constitutional limitations relieving them from conforming to it. This is especially the case with respect to those statutes relating to the taxation or condemnation of land. Such statutes are universally in force and are general in their application, facts of which the land owner must take account in providing for the management of his property and safeguarding his interest in it.”

Texaco, supra, at 532, fn. 25 (emphasis added). The court reads nothing in Texaco which limits its holding to “property abandonment statutes.” Moreover, simply because the current Dormant Oil and Gas Act in this Commonwealth does not authorize an abandonment or confiscation of oil and gas interests for non-use, the court is not required to find that the Act of 1806 also did not intend to lead to a deemed abandonment for non-reporting of severed mineral rights and the consequent non-payment of taxes on those rights. As noted in Texaco, “the fiscal interest in collecting property taxes is manifest.” Id. at 529. Since the Act’s reporting requirement furthers that interest, this court simply notes Texaco's declaration that “[t]he state surely has the power to condition the ownership of property on compliance with conditions that impose such a slight burden on the owner while providing such clear benefits to the State.” Id.

There remain no disputed issues of material fact and application of the law clearly entitles plaintiffs to the following:

ORDER

And now, this 10th day of December 2014, for the foregoing reasons, the motion for summary judgment is hereby granted with respect to Count 2 of the second amended complaint. The motion is dismissed as moot with respect to Count 3.

      . Plaintiff obtained a default judgment in 2009 on the original complaint, but that judgment was stricken by order of May 29, 2013. The complaint was then amended and additional parties joined. For ease of reference in the instant opinion, the court will refer to additional plaintiffs as “plaintiffs”. Similarly, as only defendant Hoyt Royalty, LLC filed a response in opposition to plaintiffs’ motion, Hoyt Royalty will be referred to as “defendant” even though there are numerous other defendants.

      . Counts 1,2 and 3 are pled in the alternative.

      . The Act of 1806 provides, in pertinent part: “It shall be the duty of eveiy person hereafter becoming a holder of unseated lands, by gift, grant or other conveyance, to furnish to the county commissioners, or board for the assessment and revision of taxes, as the case may be, a statement signed by such holder, or his, her, or their agent, containing a description of each tract so acquired, the name of the person or persons to whom the original title from the Commonwealth passed, and the nature, number and date of such original title, together with the date of the conveyance to such holder, and the name of the grantor, within one year from and after such conveyance,....” 72 P.S. Section 5020-409.

      . See Paragraphs 94 and 104 of Hoyt Royalty, LLC’s reply to Anadarko E&P Onshore, LLC’s new matter to complaint to join additional defendants, filed March 3,2014.

      . Defendants ask this court to take judicial notice of these facts.

      . Affidavit of Scott Sager, Curator of Collections for the Lycoming County Historical Society, Exhibit 12 of Hoyt Royalty, LLc’s supplemental appendix, filed November 4,2014.

      . This statement was made in response to the trial court having “credited the Keller heirs’ averment in their pleadings that the records of the severed subsurface rights were not kept by the recorder of deeds or were lost or destroyed.” Herder Spring at 472.

      . Id. at 472: “the Keller heirs who ostensibly took possession of the subsurface rights, had two years from the delivery of the title to Herr, the purchaser at tax sale, to make known their claim.”

      . Specifically, defendant contends there was a discrepancy between the number of acres listed in the assessment and the number of acres noted in the treasurer’s deed.

      . Defendant also contends in its second supplemental response, that the 60-day notice period was not observed. While the second supplemental response has been stricken, the court wishes to note that this objection is also barred by the two-year redemption period.

      . Defendant’s contention that the recorded deed should have served as notice to the taxing authorities is without merit. In Herder Spring, the Superior Court noted the Supreme Court’s admonition that “[t]he record of the deed creating a separate estate in the minerals would not be notice to the assessor or the commissioners, as they were not bound to search or examine the records.” Herder Spring, supra, at 471.

      . The statute (the Dormant Mineral Interests Act, Ind. Code §§ 32-5-11-1 through 32-5-11-8 (1976) ) provided that “the unused interest shall be “extinguished” and that its “ownership shall revert to the then owner of the interest out of which it was carved.”

      . “The court in Mullane itself distinguished the situation in which a State enacted a general rule of law governing the abandonment of property.” Texaco, Inc. v. Short, 454 U.S. 516, 535 (1982). While the Act of 1806 did not by its own express terms dictate that the property was to be considered abandoned if not reported, the courts’ interpretation of that Act must be read in conjunction therewith.

      . Hoyt Royalty, LLC’s supplemental response, filed November 4, 2014, at p. 19.

      . Defendant argues such, and the court will assume for sake of argument that such is true. Defendant has not cited to the relevant statute.


text:
    Office of Disciplinary Counsel v. Halfpenny

      Disciplinary Board Nos. 55 DB 2009 and 166 DB 2010
    Dec. 10, 2014
   ORDER

And now, this 10th day of December, 2014, there having been filed with this court by John P. Halfpenny his verified Statement of Resignation dated November 2, 2014, stating that he desires to resign from the Bar of the Commonwealth of Pennsylvania in accordance with the provisions of Rule 215, Pa.R.D.E., it is

Ordered that the resignation of John P. Halfpenny is accepted; he is disbarred on consent from the Bar of the Commonwealth of Pennsylvania, retroactive to October 7, 2009; and he shall comply with the provisions of Rule 217, Pa.R.D.E. respondent shall pay costs, if any, to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.

5. He acknowledges that the material facts upon which the allegations of misconduct contained in Exhibit “A” and Exhibit “B” are based are true.

6. He acknowledges that the convictions constitute a per se ground for discipline under Rule 203(b) (1), Pa.R.D.E.

7. He acknowledges that under Rule 214(f)(1), Pa.R.D.E., he would be entitled to the institution of a formal proceeding before a hearing committee in which the sole issue to be determined would be the extent of discipline to be imposed.

8. He acknowledges that by submitting the within resignation he is knowingly, voluntarily and intelligently waiving the right to have a disciplinary hearing pursuant to Rule 214(f)(1), Pa.R.D.E.

9. He submits the within resignation because he knows that he could not successfully defend himself against the charges of professional misconduct that have been brought in connection with his conviction.

10. He is fully aware that the within resignation statement is irrevocable and that he can only apply for reinstatement to the practice of law pursuant to the provisions of Rule 218, Pa.R.D.E.

11. He acknowledges that he is fully aware of his right to consult and employ counsel to represent him in the instant proceeding. He has not J.P.A. consulted with counsel in connection with his decision to execute the within resignation.

12. He is requesting that the order for disbarment be made retroactive to October 7, 2009, the date he was placed on temporary suspension. He understands that such decision will be entirely in the discretion of the Supreme Court of Pennsylvania and that the Office of Disciplinary Counsel takes no position on the issue of retroactivity.

PETITION FOR DISCIPLINE

Petitioner, Office of Disciplinary Counsel, by Paul J. Killion, Esquire, Chief Disciplinary Counsel, and by Harold E. Ciampoli, Jr., Esquire, Disciplinary Counsel, files the within Petition for Discipline and charges Respondent, John P. Halfpenny, with professional misconduct in violation of the Rules of Professional Conduct and Pennsylvania Rules of Disciplinary Enforcement as follows:

1. Petitioner, whose principal office is located at 601 Commonwealth Ave., Suite 2700, P.O. Box 62485, Harrisburg, Pennsylvania 17106 is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement (hereinafter “Pa.R.D.E.”) with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of said Rules of Disciplinary Enforcement.

Exhibit A

County under docket number MC-51CR-0048155-2008, charging respondent with violating the PEA by having unauthorized contact with Ms. Halfpenny on August 24, 2008.

10. On October 8, 2008, a criminal information was filed against respondent in the court of common pleas of Philadelphia County under docket number CP-51 — CR — 0011907-2008, charging respondent with Burglary and related offenses in connection with an incident that occurred on September 14, 2008.

11. On December 5,2008, respondent pled guilty or no contest to the following offenses:

Docket No. CP-51-CR-0011907-2008.
Ct-1 Attempted Burglary(Fl);
Ct-2 Criminal Trespass (F2);
Ct -3 Stalking (F3);
Ct-4 Contempt for Violation of Order (M3);
Ct-5 Possession of Instrument of Crime (Ml) (NO CONTEST);
Ct-7 Harassment (M3)
Docket No. MC-51-CR-0036787-2008
Ct-1 Contempt for Violation of Order (M3);
Ct-2 Stalking (Ml)
Docket No. MC-51-CR-0048155-2008
Ct-1 Contempt for Violation of Order (M3);
Ct-2 Stalking (Ml)
Police officer Rosa Boone responded to Ms. Halfpenny’s call and while in the residence, observed the door knob to Ms. Halfpenny’s family room turn;
Officer Boone investigated and observed respondent fleeing through the rear yard and also observed respondent drop a beige bag;
Officer Boone recovered the bag, which was covered with respondent’s blood;
The beige bag contained a smaller bag, which had inside it a roll of silver duct tape, a white extension cord, a blue book of matches, a black scarf, a pair of leather gloves, and a 13 inch kitchen knife; and
Respondent’s blood was found on several areas of Ms. Halfpenny’s house and yard, including a set of French doors and the surrounding patio area.

14. Respondent reported the fact of his conviction to the secretary of the board.

15. The crimes of which respondent was sentenced are “serious crime [s],” as defined in Rule 214(i), Pa.R.D.E.

16. By his conduct as alleged in paragraphs 6 through 15 above, respondent violated the following Rules of Professional Conduct and Pennsylvania Rules of Disciplinary Enforcement:

VERIFIED STATEMENT

1. Harold E. Ciampoli, Jr., Disciplinary Counsel, state under the penalties provided in 18 Pa.C.S. §4904 (unsworn falsification to authorities) that:

I am a Disciplinary Counsel of the Disciplinary Board of the Supreme Court of Pennsylvania assigned to prosecute this matter pursuant to the Pennsylvania Rules of Disciplinary Enforcement;

I am authorized to make this verified statement; and The facts contained in the attached petition for discipline are true and correct to the best of my knowledge, information and belief.

law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of said Rules of Disciplinary Enforcement.

2. Respondent, John P. Halfpenny, was bom on May 26, 1966, and was admitted to practice law in the Commonwealth on March 22, 2000.

3. By order dated October 7, 2009, the Supreme Court placed respondent on temporary suspension pursuant to Rule 214(d)(2), Pa.R.D.E. in connection with his January 23, 2009 criminal conviction for attempted burglary, criminal trespass, stalking, contempt for violation of a protection from abuse order, possession of instrument of a crime and harassment and referred the matter to the disciplinary board pursuant to Rule 214(f) (1), Pa.R.D.E.

4. By letter dated July 7, 2010, respondent notified the Secretary of the Disciplinary Board of his June 8, 2010 conviction of two additional felonies of the third degree relating to the possession of child pornography and illegal use of a communications device.

5. Respondent’s former public access address was Halfpenny Technologies Inc., 725 Skippack Pike Ste 100, Blue Bell, PA 19422.

6. On information and belief, respondent is currently incarcerated at SCI Camp Hill and his release date is uncertain.

7. By order dated December 6,2010, the Supreme Court referred the matter relating to respondent’s convictions of sexual abuse of children-possession of child pornography and criminal use was seized subsequent to a search warrant and 13 additional images of children under the age of 18 engaging in sexual acts with adults were discovered.

15. The images that respondent had down loaded were printed from known child pornography sites.

16. On January 25, 2010, a criminal information docketed to CP-51-CR-0000170-2010 was filed charging respondent with Count 1: Sexual Abuse of Children-Possession of Child Pornography, 18 6312 DI (F3) and Count 2: Criminal Use of Communication Facility, 18 7512 A (F3).

17. On February 24,2010, respondent pled guilty to both counts of Criminal Information CP-51 -CR-0000170-2010.

18. On February 24, 2010, the Honorable Thomas Dempsey sentenced respondent on Count 2, Criminal Use of Communication Facility, to incarceration for a minimum term of 5 months to a maximum term of 23 months, and three years probation, to run consecutive to his sentence received in case CP-5 l-CR-0011907-2008.

19. On June 8, 2010, Judge Dempsey sentenced respondent on Count 1, Sexual Abuse of Children-Possession of Child Pornography, to incarceration for a minimum term of 5 months and a maximum term of 23 months, to run concurrent to the sentence he received on Count 2.

20. The crimes of which respondent was sentenced are “serious crime[s],” as defined in Rule 214(i), Pa.R.D.E.

21. By his conduct, as alleged in paragraphs 9 through 20,

VERIFIED STATEMENT

I, Harold E. Ciampoli, Jr., disciplinary counsel, state under the penalties provided in 18 Pa.C.S. §4904 (unsworn falsification to authorities) that:

I am a Disciplinary Counsel of the Disciplinary Board of the Supreme Court of Pennsylvania assigned to prosecute this matter pursuant to the Pennsylvania Rules of Disciplinary Enforcement;

I am authorized to make this verified statement; and The facts contained in the attached petition for discipline are true and correct to the best of my knowledge, information and belief.


author: NANOVIC, J.,

text:
    Dowd v. Scenic View Farms Inc.

      C.P. of Carbon County,
    No. 13-0576

      Richard S. Bishop, for plaintiffs.

      Thomas R. Elliott, Jr., for defendants.
    Dec. 15, 2014
   NANOVIC, J.,

Whether an agreement to sell real estate is enforceable by the buyer when neither the buyer nor the seller has tendered performance by the closing date set forth in the agreement, which date is expressly stated to be of the essence of the agreement, is the primary issue in this litigation. A secondary issue is what becomes of the title to real estate when the grantee named in a deed of conveyance does not exist, here a corporation which had never been incorporated.

PROCEDURAL AND FACTUAL BACKGROUND

On Saturday, February 2, 2013, John and Tina Dowd, husband and wife (“buyers”), and Peter Martin, in his capacity as sole shareholder and officer of Scenic View Farms, Inc., a Pennsylvania corporation (“seller”), signed an agreement for the purchase and sale respectively of a 115 plus acre farm owned by Scenic View Farms, Inc. to the Dowds for a purchase price of $500,000.00 (the “agreement”). The agreement called for the conveyance of title by general warranty deed, did not contain a waiver of formal tender of the deed of transfer or of the purchase price, provided that “[settlement shall take place within 30 days of the signing [of the agreement] at a time and place agreed to by the parties,” and stated that “[t]ime is of the essence of this agreement.” Title to the real estate which was the subject of the agreement was to be “good and marketable and free and clear of all liens, restrictions, easements, encumbrances, leases, tenancies and other title objections, except for the “clean and green” designation... and [ ] public utility easements whether or not recorded.” The agreement was signed by Peter Martin under seal in his capacity as president of the Seller and had been prepared by Mr. Martin’s counsel.

Settlement was not held by March 4,2013, (i.e., within thirty days of February 2, 2013), nor has it occurred to the present time. Why, is the subject of the instant action for specific performance commenced by the buyers by praecipe for writ of summons filed on April 1, 2013.

On the same date the agreement was signed, after its execution, Mr. Martin told the buyers he would be in touch with them about settlement. (N.T., 10/9/14, p.91). The next communication the buyers received was an e-mail from Mr. Martin’s son, Paul Martin, on February 13,2013, who advised that they had met with Peter Martin’s accountant and would be meeting that same day with Peter Martin’s attorney, that some paperwork needed to be put in order which might take a few weeks, and that he would keep the buyers updated on their progress. Next, the buyers received a second e-mail from Paul Martin on February 26, 2013, asking on behalf of Peter Martin and his immediate family that the agreement be canceled. A third e-mail sent by Paul Martin on March 2, 2013, inquired as to whether the buyers had made a decision on the earlier request to rescind the agreement.

After receipt of the second e-mail, Mr. Dowd spoke with Peter Martin, asked if this was his desire, and was told by Mr. Martin that his son, Paul Martin, had full authority to act on his behalf. (N.T., 10/9/14, pp.53, 95-96). On March 3, 2013, Mr. Dowd e-mailed the buyers’ response to the seller’s request to void the agreement. In this response, Mr. Dowd wrote that while he understood the importance of the property to the Martin family, it was also important to his family; that the property was the only large piece of land adjacent to the home where he and his wife resided and that they hoped someday to have their children live near them; and that the discussions between him and Peter Martin for the sale of the property had been ongoing for several years, were not spontaneous, and that it was Mr. Martin who had approached him in late 2012, at which time an oral agreement was reached, which was reduced to writing by Mr. Martin’s attorney and signed two to three months later. Mr. Dowd concluded his e-mail by expressing his interest to have closing in March.

On March 12, 2013, the buyers’ settlement agent forwarded a deed, settlement statement, seller’s affidavit, and several other settlement documents to be signed by Peter Martin to the seller, tentatively scheduled closing for March 20, 2013, and asked that the enclosed documents be returned prior to closing. In a typewritten response dated March 15, 2013, signed by Peter Martin, in which he referred to himself as the seller’s president, Mr. Martin wrote that because closing had not occurred within thirty days of the date the agreement was signed, and because time was of the essence, buyers were in breach of the agreement which he was thereby terminating. At this point, buyers, who had previously not been represented by counsel, obtained counsel who sent a letter dated March 19, 2013, to the seller wherein buyers disputed that they had violated the agreement and requested that settlement proceed in accordance with their settlement agent’s letter of March 12, 2013.

When this did not occur, buyers commenced the present action for specific performance as previously stated. Buyers’ complaint was filed on July 18, 2013. A bench trial was held before the court on October 9, 2014 and November 20, 2014.

DISCUSSION

Performance as a Condition to Enforcement — Who Bears the Burden

Implied in every contract in Pennsylvania is an obligation on each party to act in good faith and to deal fairly with the other party. Somers v. Somers, 613 A.2d 1211, 1213 (Pa. Super. 1992). If the contract is silent as to the time of performance, the law implies a reasonable period. Field v. Golden Triangle Broadcasting, Inc., 305 A.2d 689, 694 (Pa. 1973). If the contract states a date by which performance is to occur and this date is not met, the law allows a reasonable period to cure, unless there is some additional factor, such as a willful refusal to perform or injury to the non-breaching party which cannot be compensated for in damages. Morrell v. Broadbent, 140 A. 500, 505-506 (Pa. 1928). However, where the settlement date fixed in an agreement is stated to be of the essence of the agreement, “courts will ordinarily accept the agreement as made and refuse to decree performance in the event of failure to make payment within the stipulated time,” Morrell, 140 A. at 506, unless such time is extended by agreement or waived by the conduct of the parties, in which event, “where the parties treat the agreement as in force after the expiration of the time specified for settlement it becomes indefinite as to time and neither can terminate it without reasonable notice to the other.” Davis v. Northridge Development Associates, 622 A.2d 381, 385 (Pa. Super. 1993) (quoting Warner Company v. MacMullen, 112 A.2d 74, 78 (Pa. 1955)). “It is also well settled that a buyer’s tender of performance is excused where the seller has expressly repudiated the contract or has indicated that he is unwilling or unable to perform.” Davis, 622 A.2d at 385.

In this case, both parties agreed that settlement would occur no later than March 4, 2013. With respect to their obligations under the agreement, delivery of the deed and payment of the purchase price were mutual, concurrent and dependent covenants. Yet, within this period neither party did what was necessary to consummate settlement: Seller failed to tender a deed and other documents reasonably requested for good and marketable title to pass, and buyers failed to tender the purchase money. (N.T., 10/9/14, pp.66-67, 86).

Instead, after initially advising buyers that it needed additional time to get its paperwork in order, seller not only failed to advise buyers that it could not meet the agreement’s closing date, but deliberately failed to communicate this fact believing that if buyers did not demand that settlement be held on or before March 4,2013, it retained the right to terminate the agreement, which was its intention for reasons independent of when settlement was held. After Peter Martin signed the agreement on February 2, 2013, and told his son and daughter of the pending sale, they opposed the sale and wanted to prevent its occurrence for a variety of reasons important to them: the price was too low, the tax implications of sale, and their desire to keep the property within the family. (N.T., 10/9/14, pp.50-51, 54, 71, 96). This notwithstanding that Peter Martin had been trying to sell the property for more than three years; that during this time the property had been listed with several real estate brokers and in fact was listed for sale at the time the agreement with the buyers was reached; that the best offer previously received was $450,000.00 (N.T., 10/9/14, p.44; Plaintiff Exhibit No. 20 (Deposition of Peter Martin, pp.56-57)); and that Peter Martin was elderly, in his mid-eighties, and in poor health.

In contrast to seller, who was looking for a way out of the agreement, within a week of signing the agreement, buyers contacted their settlement agent, an abstract company, to prepare for settlement. (N.T., 10/9/14, pp.49-50, 76). Buyers did not press seller for a settlement date when told seller needed time to put its paperwork in order, gently deflected Paul Martin’s overtures to cancel the agreement, and timely suggested on March 3, 2013, that settlement occur that month. At no time prior to March 15, 2013, did seller insist on settlement occurring on or before March 4, 2013.

Seller never told buyers it would insist on time being of the essence until after the date for closing specified in the agreement had passed. To the contrary, seller’s conduct reasonably led buyers to believe the date set for settlement in the agreement was not critical and would not be enforced. (N.T., 10/9/14, pp.97-98, 104-105; plaintiff Exhibit No. 20 (Deposition of Peter Martin, pp.52, 59)). By stating seller’s paperwork for settlement would take several weeks to complete, failing to keep buyers advised of the progress of this paperwork, playing on buyer’s sympathy to cancel the deal, and then being silent in response to Mr. Dowd’s March 3, 2013 letter, knowing buyers were intent on buying the property, yet deliberately waiting until after the settlement date called for in the agreement before notifying buyers of its decision to terminate the agreement, and having made no tender of a deed before the agreed-upon deadline for settlement, seller engaged in a course of conduct upon which buyers reasonably relied in believing that settlement by March 4, 2013 was not imperative, and then seller used this belief as the basis to declare the agreement void. This the law will not countenance. More to the point, by its conduct seller implicitly waived and/or is estopped from insisting on strict compliance with the agreement’s settlement date.

At a minimum, common decency and fair dealing required that when Mr. Dowd turned down seller’s request to cancel the deal on March 3, 2013, and advised buyers would like to complete settlement in March, seller should have replied that the deadline for settlement is tomorrow, March 4, and that unless closing is held by that time, there will be no settlement, rather than remaining silent for eleven days and responding only after receiving the settlement package from buyers’ agent. Under the circumstances, buyers were justified in accepting seller’s silence as an indication of its willingness to settle after March 4, 2013.

While courts of equity have the power to grant specific performance, the exercise of this power is discretionary.

The discretion which a court of equity has to grant or refuse specific performance, and which is always exercised with reference to the circumstances of the particular case before it, may, and of necessity must often be controlled by the conduct of the party who bases his refusal to perform the contract upon the failure of the other party to strictly comply with its conditions.... [Specific performance] is frequently ordered in favor of a party who has been for a considerable period in default, if he has never abandoned the contract, and the other party has suffered nothing from the delay for which he cannot be compensated in the decree.... Whether time is or is not of the essence of the contract, if the vendor has waived strict compliance with its terms as regards time of payment, he cannot thereafter rescind or forfeit the contract, without notifying the purchaser of his intention to do so unless payment is made, and allowing him a reasonable time for performance.

Cohn v. Weiss, 51 A.2d 740, 742-43 (Pa. 1947) (quotation marks and citations omitted). This, seller never did.

The agreement was not contingent on financing and this was never an issue for buyers who at all times had the necessary funds available for settlement. Moreover, and critical to buyers’ obligation to tender payment, seller never tendered a deed.

Where a contract imposes reciprocal duties on the parties and the ability of one to perform depends on performance by the other, it would seem plain that the latter’s failure to perform within the time fixed for performance by the former would be a waiver of the time limitation. A party who is himself in default has no right to insist on rescission while in default, and where there has been indulgence on both sides, one party cannot suddenly rescind without notice to the other. After waiver, or where the agreement was originally indefinite, time does not become of the essence until notice be given by one of the parties, insisting on compliance within a reasonable time.

Ephrata Water Company v. Ephrata Borough, 20 Pa. Super. 149, 155 (1901) (citations omitted).

Specifically addressing the issue of the obligation to tender payment when a deed has not been tendered, when the agreement of sale does not contain an express waiver of formal tender, and when the agreement makes the date of settlement material to its performance, the Pennsylvania Supreme Court in Cohn stated:

Another important element in this case is the fact, as found by the court below, that the defendants never tendered a duly executed general warranty deed nor the necessary affidavits as to existing judgments required to remove the objections of the title company. If the vendor intended to hold the vendee to a strict compliance to the terms of the agreement in respect to the time of settlement, he should have been meticulous about his own readiness to perform his part of the agreement at the time fixed for settlement. In Lefferts v. Dolton, 217 Pa. 299, 66 A. 527,118 Am.St.Rep. 913, this court held that before a vendee is called upon to pay his money, he is ‘entitled to see that the conveyance was properly signed, sealed, and acknowledged, and that the description of the land to be conveyed was correct.’
In the instant case the court below correctly said: ‘In the absence of an express waiver of formal tender, the vendors were under a duty to appear at the stipulated time and place for performance and produce a duly executed instrument. Until this was done, the vendee could not be called upon to make payment or to proceed in the performance of her covenant. We are confronted, thereforer with a situation in which both parties permitted the time for performance to pass. Having allowed the stated time to go by, neither party could terminate the contract suddenly without giving the other an opportunity to perform.’
In Irvin v. Bleakley, 67 Pa. 24, which was an action of assumpsit for breach of contract for the purchase and sale of property, this court said: ‘...whichever of the parties first desired to enforce performance was bound to regard his part of the contract as a condition precedent, and perform or offer performance in order to enable him to proceed to enforce the contract.’ This doctrine was reiterated by this court in Heights Land Co. v. Swengel’s Estate et al., 319 Pa. 298, 179 A. 431, 432, where it said: ‘It is equally well established that a tender of performance on the part of plaintiff is prerequisite to a decree for the specific performance of a contract for the sale of real estate; he who seeks equity must do equity.’

Cohn, 51 A.2d at 743-44 (citations omitted) (emphasis added). Cf. Moser v. Jacob Brown Building & Loan Ass’n, 182 A. 531, 533-34 (Pa. 1936) (holding that in an agreement of sale in which time was of the essence, and tender of deeds and of purchase money were expressly waived, waiver of time is of the essence of the agreement would not result from a failure to tender, because the parties had agreed that neither tender of deed nor tender of purchase money was required to put the other in default).

A second reason why tender of payment of the purchase price by buyers on or before March 4, 2013 is not a precondition to specific performance is that seller was not in a position to convey good title by this date. Although buyers were not told of this fact, Paul Martin acknowledged this inability due to the title issue discussed below. On this point, our Superior Court stated:

[A] court may grant specific performance if a contract specifies that “time is of the essence” even if the buyer fails to tender where it is uncontradicted that any such tender would have been a futile act. Specific performance is foreclosed as a remedy if two elements are present: (1) the buyer has not tendered by the specified date; and (2) the seller has effectively denied that such tender would have been futile. In the instant case, the sellers have not denied that they were unable to convey good title on May 2, 1983. Tender by the buyer would have been futile.

Messina v. Silberstein, 528 A.2d 959, 962 (Pa. Super. 1987). This futility is dramatically illustrated in this case since, as explained below, as of March 4, 2013, seller was no longer in a position to convey good and marketable title.

Deeding Property to a Non-Existent Corporation — What is the Effect on Title

The second issue which needs to be decided in order that good and marketable title will be conveyed to the buyers is from whom title to the property should be transferred. This issue arises because after the agreement was signed, by deed dated February 24, 2013 and recorded on March 15, 2013, the seller conveyed title to the property to “Scenic View Farms, a de facto partnership, Albert Misciagna and Peter Martin, general partners.” This deed, according to seller, in fact conveyed no interest in the property, but was a deed of correction whose sole purpose was to have the records in the recorder of deeds office properly reflect who is the real owner of the property.

As explained by the seller, included in the recorded chain of title for the property is a deed dated August 20, 1974, from Elmer E. Shoenberger and Florence G. Shoenberger, predecessor owners, to Scenic Farms, Inc. (Plaintiff Exhibit No. 1). Scenic Farms, Inc. was a non-existent corporation, as articles of incorporation had never been filed. In a second deed dated August 2, 1976, and designated as a deed of correction, the Shoenbergers purported to re-convey title to the property to Scenic View Farms, Inc., a Pennsylvania corporation, the designated seller in the agreement. Scenic View Farms, Inc. was incorporated on September 15, 1975. (Plaintiff Exhibit Nos. 2, 3). Defendants contend that this second deed from the Shoenbergers was a nullity; that having previously conveyed title to the property to Scenic Farms, Inc., on August 20,1974, the Shoenbergers were no longer the owners of the property; and that even though Scenic Farms, Inc. was a nonexistent corporation, the effect of this transfer was to convey title to a de facto partnership consisting of Peter Martin and his brother, Albert Misciagna. Consequently, defendants contend the February 24,2013 deed from Seller to Scenic View Farms, a de facto partnership, did nothing more than create a paper trail on the public record to evidence who the real owner of the property is.

Buyers claim that the transfer from the Shoenbergers to Scenic Farms, Inc., a non-existent corporation, was a legal nullity, and that the subsequenttransferby the Shoenbergers to Scenic View Farms, Inc. actually conveyed title to the property to the seller. Consequently, buyers argue that the February 24, 2013 transfer by the seller to Scenic View Farms, a de facto partnership, was not only unnecessary, but in fact transferred title to the property to Albert Misciagna and Peter Martin, and acted to frustrate, if not prevent, the transfer of good and marketable title to the property by seller to buyers as required by the agreement.

In reviewing this history, we agree with the buyers’ assessment of the law, but disagree that seller acted in bad faith, finding instead that seller’s reliance on the advice of counsel was in good faith, albeit in error. “A deed that purports to convey real estate to a nonexistent corporation has no effect.” Borough of Elizabeth v. Aim Sher Corporation, 462 A.2d 811, 812 (Pa. Super. 1983) (holding that where an owner of property deeded the property to a corporation which had not been incorporated, no articles of incorporation having been filed, and which did not have any de facto existence before the filing of articles of incorporation over a year later, the transfer was void ab initio)', see also Lester Associates v. Commonwealth, 816 A.2d 394 (Pa.Cmwlth. 2003) (en banc) (holding that where the grantee, a named corporation, did not exist at the time of the purported conveyance and was not capable of taking title, title to real estate did not pass and no real estate transfer tax was owed). Seller’s reliance on In Re Gibbs’ Estate, 27 A. 383 (Pa. 1893) is misplaced.

In Gibbs’ Estate the court discussed whether evidence presented by a bank customer was sufficient to establish that the bank, which had failed and was in receivership, was a general partnership, not a corporation which it purported to be, in order that the customer could proceed against the individual assets of the estate of one of the bank’s shareholders, whom the customer claimed was a general partner. Without deciding whether the bank was properly incorporated, the court held only that the customer failed to make out a prima facie case that either the deceased shareholder was a partner, or the bank a general partnership. The court did not hold that a failure to incorporate (or an imperfect incorporation) ipso facto results in a de facto partnership.

In the instant case, the evidence presented showed that Peter Martin and his brother, Albert Misciagna, intended that title to the property be in the name of a corporation whose shares they owned. Although no corporation existed in 1974 when the transfer to Scenic Farms, Inc. was made, Scenic View Farms, Inc. was incorporated a little more than a year later and a second deed conveying title to the property from the Shoenbergers to this corporation was filed of record. No evidence was presented to the contrary.

In any event, whether Peter Martin is the owner of the property by virtue of the 1974 deed transfer from the Shoenbergers to Scenic Farms, Inc., or the 2013 transfer from Scenic View Farms Inc. to Scenic View Farms, a de facto partnership, as of this date, he is the owner of the property and the grantor from whom title should be transfer to the Buyers.

CONCLUSION

The date for settlement provided in an agreement of sale imposes duties upon both parties to the transaction. When the agreement expressly makes the date of settlement of the essence of the agreement, this date is waived when neither party tenders performance by the settlement date and neither tender of the deed nor tender of the purchase money has been waived in the agreement. Under these circumstances, neither seller nor buyer has the right to do absolutely nothing when the other proposes a settlement date beyond the period called for in the agreement and then refuse to perform.

Specific performance should only be granted “where the facts clearly establish the plaintiff’s right thereto; where no adequate remedy at law exists; and, where the chancellor believes that justice requires it.” Payne v. Clark, 187 A.2d 769, 771 (Pa. 1963). Here, both the seller’s conduct in deliberately allowing the settlement date to pass with the intent of voiding the agreement, having led buyers in the meantime to reasonably believe that settlement by this date was no longer material to performance, and the seller’s failure to tender a deed, with no proven evidence of prejudice to seller by the delay, persuade us that we should permit the buyers a reasonable period from the date of this decision within which to complete settlement.

Finally, we believe it is not without significance that seller’s decision to terminate the agreement had nothing to do with the settlement date being scheduled approximately two weeks after March 4, 2013. This was a subterfuge for the real reason underlying the decision, Peter Martin’s change of heart because his son and daughter were against the sale. We understand the dilemma Mr. Martin faced, making a choice between what he had agreed to and what his children wanted, however, the law does not excuse performance because of second thoughts.

      . At trial, the buyers presented evidence from an accountant that projected the difference in the federal and state income tax consequences of the sale of the property to the buyers if the transfer were from the Seller, Scenic View Farms, Inc., versus from the individual, Peter Martin. (Plaintiff Exhibit No. 25). The total projected tax on the sale of the farm by the corporation, including tax on the distribution of the net cash proceeds from the sale by the corporation to Peter Martin, was $223,155.00. In comparison, if the farm were determined to be owned by Peter Martin and transferred by him directly to the buyers, the total projected tax was $ 111,511.00. The difference between these two figures is $111,644.00.

      . Four listing agreements with the seller, Scenic View Farms, Inc., identified as the owner, were admitted in evidence. The earliest is dated July 22, 2009. (Plaintiff’s Exhibit No. 5). The most recent is dated February 9,2012. (Plaintiff’s Exhibit No. 8). This last agreement lists the property at a price of $699,900.00 and provides for the listing to expire at 11:59 P.M. on February 9,2013.

      . The 1976 deed from the Shoenbergers to Scenic View Farms, Inc. states, inter alia:

      And the original deed into Scenic Farms, Inc. dated August 20,1974, was erroneous in that said corporation had not been legally incorporated at the time the deed was executed and delivered and when the charter was granted, it was granted in the name of Scenic View Farms, Inc. The purpose of this deed is to correct the name of the grantee, Scenic View Farms, Incorporated.
      (Plaintiff Exhibit No. 3). The Articles of Incorporation for Scenic View Farms, Inc. expressly state that Albert Misciagna and Peter Martin are each the owner of 10 shares in this corporation and, in the registry statement, Albert Misciagna is identified as the president and Peter Martin the secretary of the corporation. (Plaintiff Exhibit No. 2). Since its incorporation, property taxes have been billed to the seller in its corporate name (Plaintiff Exhibit Nos. 17, 18) and seller has a clean lien certificate (Plaintiff Exhibit No. 23) which, according to buyers’ accountant, signifies that corporate tax returns are being timely filed on seller’s behalf.

      . At the outset of the first day of trial on October 9, 2014, the following stipulation between counsel was made part of the record:

        Mr. Elliott: Let me say this, the purpose for correction deed was to abate the possibility of there being a problem actually closing. You will notice that in my pleadings-and this was a thing that was specifically considered-we felt it was disingenuous on our part to argue that even though Mr. Martin was a principal and had been principal since very beginning, whether partnership or president of corporation, to us it didn’t matter because we were prepared to close based upon correction deed. In other words, we weren’t going to say if they were on time, we were not going to say; guess what, you have a problem, the deed is in wrong party, title was never fixed. We would have given them a deed from the current owner as reflected in the correction deed.
      The Court: Okay. So are you able to stipulate for these proceedings that in term of enforcement of the agreement if it should be specifically enforced, which is that they are seeking here, that who the owner of the property is, is non-issue.
      Mr. Elliott: Yes, because I think that’s the right thing.
      (N.T. 10/9/14, pp.17-18).
      In addition, pursuant to a transfer agreement between Peter Martin and Albert Misciagna dated February 2,2009, Mr. Misciagna transferred “all of [his] 50% interest in Scenic View Farms, Inc.” to Peter Martin. (Plaintiff Exhibit No. 4). In an acknowledgment, ratification and release agreement dated November 5, 2010, Albert Misciagna acknowledged and ratified the transfer of his shareholdings in Scenic View Farms, Inc. pursuant to the February 2,2009 transfer agreement. (Defendant Exhibit No. 4). Finally, as to any individual interest Mr. Misciagna may have acquired by the February 24, 2013 transfer from the Seller to Scenic View Farms, a de facto partnership, any such interest was transferred, assigned and relinquished to Peter Martin on February 25, 2013 by the first supplement to the February 2, 2009 transfer agreement and acknowledgment, ratification, and release agreement. (Plaintiff Exhibit No. 13, paragraph 1).


author: SHREEVES-JOHNS, J.,

text:
    Lee v. Bernard

      Marc I. Simon, for plaintiffs.

      Steven P Cholden, for defendants.
    Nov. 19, 2014
   SHREEVES-JOHNS, J.,

— Plaintiffs Yeung Woo and OK H Lee (hereinafter “plaintiffs”), husband and wife, brought the underlying personal injury action against both John P. Bernard and Comcast of Philadelphia II, LLC. (collectively referred to as “defendants”) seeking redress for alleged injuries resulting from a motor vehicle accident.

On July 18, 2014, following a jury trial, the juiy rendered a verdict finding that the defendants were not the factual cause of any harm to plaintiff Yeung Woo Lee. However, the jury found the defendants’ negligence to be the factual cause of plaintiff, Ok H Lee’s injuries and awarded her $5,000.00 in damages.

Following the verdict, plaintiff filed a timely motion for post-trial relief seeking a new trial. In their motion, plaintiffs raised the following issue:

1. Whether the court erred in deciding that plaintiffs’ medical expert was precluded from offering opinions as to the reasonableness and necessity and relatedness of plaintiffs’ laser spine surgical procedure.

FACTS

The facts relevant to this motion are as follows: as a result of the alleged injuries sustained in the motor vehicle accident, both plaintiffs underwent surgical procedures performed by Dr. Keith Girton at the Laser Spine Institute. Plaintiffs’ counsel produced expert reports from family practitioner, Dr. Gregoiy Temple for each plaintiff in which Dr. Temple opined that the laser spine surgeries were reasonably related to the underlying motor vehicle accident.

During Dr. Temple’s depositions relating to both Yueng Woo Lee and OK H. Lee, plaintiffs’ counsel asked Dr. Temple whether he had “an opinion to within a reasonable degree of medical certainty as to the reasonableness and necessity of all the treatment that Mr. Lee received following the accident?” See temple trial deposition transcript, 05/20/14, p.50, lines 4-8. On both occasions, defense counsel raised the following objection:

“The only objection I have is with regard to the surgery as being beyond the scope of this physician’s expertise. Obviously, he can discuss the treatment that would be rendered by the chiropractor and some of the other treatments...but...surgery is beyond the scope of this witness’s expertise.”

See temple trial deposition transcript, 05/20/14, pp.50-51, lines 17-3; see also trial deposition transcript of Dr. Temple regarding plaintiff, Yeung Woo Lee at 24.

At trial, this court sustained the defense’s objection as to Dr. Temple’s testimony regarding the reasonableness and necessity of plaintiffs’ laser spine surgery. (N.T., 7/15/13 at 31:8).

DISCUSSION

I. STANDARD OF REVIEW FOR POST-TRIAL RELIEF.

In Pennsylvania, after a trial, and upon the written motion of any party, a court may: (1) order a new trial as to all or any of the issues; (2) direct the entry of judgment in favor of any party; (3) remove a nonsuit; (4) affirm, modify or change the decision; or (5) enter any other appropriate order. Pa.R.C.P. 227.1(a).

II. STANDARD FOR GRANTING A MOTION FOR A NEW TRIAL.

It is well settled that the grant or denial of a new trial rests in the discretion of the trial court. Kiser v. Schulte, 648 A.2d 1, 4 (1994); see also Mendralla v. Weaver Corp., 703 A.2d 480, 485 (Pa. Super. 1997). Atrial court may only grant a new trial when the jury’s verdict is so contrary to the evidence that it “shocks one’s sense of justice.” Kiser, 538 Pa. at 226, 648 A.2d at 4. The review of a trial court’s grant or denial of a new trial is limited to whether there was an abuse of discretion or error of law. Neison v. Hines, 653 A.2d 634, 636 (1995). The court must consider the evidence in the light most favorable to the verdict winner, the verdict winner must be given the benefit of every inference of fact arising therefrom, and any conflict in the evidence must be resolved in favor of the verdict winner. Metis v. Griglak, 264 A.2d 684, 686 (Pa. 1970). The harmless error doctrine underlies every decision to grant or deny a new trial. Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1122 (2000). “A new trial is not warranted merely because some irregularity occurred during the trial or another trial judge would rule differently; the moving party must show prejudice resulting from the mistake.” Id.

III. WHETHER THE COURT ERRED IN DECIDING THAT PLAINTIFFS’ MEDICAL EXPERT WAS PRECLUDED FROM OFFERING OPINIONS AS TO THE REASONABLENESS AND NECESSITY AND RELATEDNESS OF PLAINTIFFS’ LASER SPINE SURGICAL PROCEDURE.

In the case at bar, plaintiffs argue that the trial court erred in concluding that plaintiffs’ testifying medical expert was precluded from offering opinions as to the reasonableness and necessity of surgical procedures. See plaintiff’s brief at 1.

Questions concerning the admission or exclusion of evidence are within the sound discretion of the trial court, whose decision will not be disturbed absent a clear indication of abuse of that discretion. Bennyhoff v. Pappert, 790 A.2d 313, (2001), app. dn. 823 A.2d 143 (2003). To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party. Ettinger v. Triangle-Pacific Corp., 799 A.2d 95, 2002 Pa. Super. 142 (2002) app. dn. 572 Pa. 742 (2003).

A. Qualification for Opinion Testimony.

Under Pennsylvania law, it is well-settled that rulings concerning the admission of expert testimony are generally committed to the trial court’s sound discretion. Miller v. Brass Rail Tavern, Inc., 664 A.2d 525, 528-29 (1995); see also Dambacher v. Mallis, 485 A.2d 408 (Pa. Super. 1984).

Whether a witness is qualified as an expert can only be determined by comparing the area in which the witness has expertise with the subject matter of the witness’ testimony. 2 Fitzgerald, Intoxication Test Evidence § 67:4 (2d. ed.). Before permitting an alleged expert witness to give an opinion, the court must make a preliminaiy finding that the witness is legally competent and has the required qualifications to offer an opinion on the matter. The qualification, or lack of qualification, of an expert witness is a matter within the discretion of the trial court. Kravinsky v. Glover, 396 A.2d 1349 (1979). McDaniel v. Merck, Sharp and Dohme, 533 A.2d 436 (1987) (“The next question the court should ask is whether the witness has sufficient skill, knowledge or expertise in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth.”).

B. UNDER PENNSYLVANIA LAW, DR. TEMPLE DID NOT POSSESS THE NECESSARY SKILLS OR QUALIFICATIONS TO OFFER AN OPINION AS TO THE REASONABLENESS AND NECESSITY OF PLAINTIFFS’ SURGICAL PROCEDURES PERFORMED AT THE LASER SPINE INSTITUTE.

In the instant matter, the record reveals that Dr. Temple is board certified in primary care family medicine with no experience or training in laser spinal surgery. More specifically, “Dr. Temple was offered as an expert in the area of family medicine,” and was permitted to testify regarding his treatment of plaintiffs. See plaintiff’s brief at 3 (emphasis added). Notwithstanding, plaintiffs sought to offer Dr. Temple’s opinion as to the reasonableness and necessity of plaintiffs’ surgery in the highly specialized field of laser spinal surgery. The crux of plaintiffs’ argument is that “all medical doctors are qualified to testify concerning medical subjects.” See plaintiffs brief at 3. Plaintiffs boldly claim that Dr. Temple is qualified to testify as to the reasonableness and necessity of both Yeung Woo Lee and OK H Lee’s laser spine surgery by virtue of his experience as a “general practitioner who deals with orthopedic injuries and makes recommendations to his patients” and due to his experience in the area of “family medicine.” See plaintiff’s brief at 3. This argument, however, incorrectly circumscribes the scope of the Pennsylvania Rule of Evidence and whether an individual possesses the necessary qualifications to provide expert testimony.

In order to assist the factfinder, the proffered knowledge of the witness must concern the specific inquiry for which the expertise is offered. See McDaniel v. Merck, Sharp and Dohme, 533 A.2d 436 (1987). In the case at hand, there has been no evidence adduced of record showing, or even tending to show, that Dr. Temple possessed the requisite education or experience in laser spinal surgery so as to render an opinion as to the reasonableness and necessity of such procedure. Indeed, Pennsylvania common law recognizes that “in the area of medicine, specialties sometimes overlap and a practitioner may be knowledgeable in more than one field. Different doctors will have different qualifications, some doctors being more qualified than others to testify about certain medical practices.” Wexler v. Hecht, 847 A.2d 95, 99 (Pa. Super. 2004). However, “a medical witness must have some familiarity with the particular medical or surgical technique involved in the suit” in order to proffer an opinion. Ragan v. Steen, 331 A.2d 724, 735 (1974). Simply put, an expert must demonstrate some knowledge of the specific subject matter upon which he promises to express an opinion. See, In Re: Involuntary Termination of Parental Rights, 297 A.2d 117 (1972).

In a case materially similar to the instant matter, the Superior Court in Dambacher v. Mallis, 485 A.2d 408 (1985), held that it was improper to allow testimony of a witness who had no expertise in the specialized subject at issue. More importantly, the court did not mince words when it stated:

It may appear that the scope of the witnesses experience and education may embrace the subject in question in a general way, but the subject may be so specialized that, even so, the witness will not be qualified to testify. Thus, every doctor has a general knowledge of the human body. But an ophthalmologist, for example, is not qualified to testify concerning the causes and treatment of heart disease.

Dambacher v. Mallis, supra at 32, 485 A.2d at 418; see also, Wexler v. Hecht, 847 A.2d 95 (2004) aff’d, 593 Pa. 118, 928 A.2d 973 (2007) (a podiatrist is not qualified to render expert opinions regarding the care and treatment provided by an orthopedic surgeon.); Dierolf v. Slade, 581 A.2d 649 (1990) (upholding trial court’s refusal to qualify orthodontist as an expert witness on oral surgery); McDaniel v. Merck, Sharp and Dohme, 533 A.2d 436 (1987) (physician specializing in anesthesiology not qualified to express an opinion regarding, among other things, the alleged misuse of antibiotic drug where physician had no clinical or research experience with the drug at issue.

Here, plaintiffs have made the novel argument that “all medical doctors are qualified to testify concerning medical subjects and it is for the jury to determine the weight to be given to the expert testimony” citing Commonwealth v. Morris, 207 A.2d 921 (1965), and Ragan v. Steen, 331 A.2d 724, 726 (1974). See plaintiff’s brief at 2. However the defect in plaintiffs’ argument can be traced to the cases plaintiffs rely upon. Neither Morris nor Ragan established the bright-line rule, as plaintiff states, that “all medical doctors are qualified to testify concerning medical subjects.” See plaintiff’s brief at 2. As a matter of fact, plaintiffs’ counsel took the creative license in stretching, and manipulating the court’s decision in Ragan. More specifically, in Ragan, the court stated:

“It is time that Pennsylvania join the states which have recognized the absurdity of permitting witnesses to testify as experts simply by virtue of their licenses or degrees.

The court continued:

The new discoveries, the innovative procedures and practices, and even the birth of fields unknown to medical science just a few years ago (cancer immunologists, transplant specialists, fetologists, and specialists in nuclear medicine, to name a few), have flooded medical science with data no one man can possibly digest. Physicians have gone so far as to set up a referral system taking a patient from a diagnostic specialist (-ologist) to a specialty surgeon (e.g., neurologist-neurosurgeon, Cardiologist-Cardiac surgeon). This system is so well implanted that a general practitioner would be exposing himself to potential malpractice by attempting to treat a condition properly referable to a specialist. Physicians are themselves the first to admit the folly of treating a condition on the basis of their textbook or medical school experience, with the virtual certainty that a bad result would be easily linked to a failure to take cognizance of or utilize a course of treatment which had developed within a given specialty through clinical studies, medical treatises, and theoretical experience. We, as lawyer-judges, must take cognizance of the realities of a burgeoning and progressing world. It is neglect of the first order, and a death blow to the medical world, to ignore such facts.

Ragan v. Steen, 331 A.2d 724, 734-35 (1974) (emphasis added). In its entirety, it is clear this case does not support plaintiffs’ position as he leads the court to believe.

As stated above, the subject matter at issue concerns a familyphysician’sexperttestimonyastothereasonableness and necessity of plaintiffs laser spine surgery. Indeed, attendance in medical school doubtlessly familiarized Dr. Temple with the basic parameters of medicine. Nonetheless, Dr. Temple’s practice as a family practitioner was a general practice, in that it was not limited to a specific branch of medicine, and as a general practitioner, Dr. Temple was not a specialist in any area of medicine. The reasonableness and necessity of a patient receiving highly complex spinal surgery is a matter of specialized knowledge which is not typically embodied within the knowledge or education of a general family practitioner and therefore was not within the ken of plaintiffs’ expert, Dr. Temple. Dr. Temple’s area of practice is unrelated to that of Dr. Keith Girton’s specialty, and there are no facts of record to support any contrary conclusion.

As plaintiffs’ counsel state, Dr. Temple is — at best — “a general practitioner who deals with orthopedic injuries and makes recommendations to his patients.” See plaintiff’s brief at 3. At no point in the proceedings did plaintiffs’ counsel or Dr. Temple further develop the record to prove that he did in fact possess any specialized knowledge regarding laser spine surgeries or the reasonableness and necessity of such treatment. Moreover, Dr. Girton was the actual surgeon who performed the laser spine surgery on both plaintiffs. Therefore, plaintiffs were free to have utilized Dr. Girton to testify that the procedures were reasonable, necessary and related to the April 23, 2012 accident: yet, plaintiffs’ counsel chose not to call Dr. Girton to testify.

In light of the foregoing, and notwithstanding Pennsylvania’s liberal standard for qualification of expert witnesses, the trial court can imagine no reasonable professional calculation which would support a finding that Dr. Temple, a general family medicine practitioner, had a reasonable pretension to such specialized knowledge, or that his opinions or inferences would have aided the jury in its role as factfinder as to the reasonableness and necessity of a highly specialized laser spinal surgery. Therefore, “If a witness possesses neither experience nor education in the subject matter under investigation, he should not be qualified [as an expert].” Dierolf v. Slade, 581 A.2d 649, 651 (1990).

C. EVEN ASSUMING ARGUENDO THAT DR. TEMPLE SHOULD NOT HAVE BEEN PRECLUDED TO TESTIFY, THE MISTAKE, IF ANY, AMOUNTED TO NOTHING MORE THAN HARMLESS ERROR.

Plaintiffs argue that this court’s decision to preclude Dr. Temple’s testimony as to the reasonableness and necessity of plaintiffs’ laser spine surgery was erroneous and therefore, grounds for a new trial. However, the salient question in addressing plaintiffs’ argument is whether plaintiffs were prejudiced by this court’s refusal. See Harman ex rel. Harman v. Borah, 756 A.2d 1116 (2000) (“the moving party must demonstrate to the trial court that he or she has suffered prejudice from the mistake.).

Even if precluding Dr. Temple’s testimony was an error, it was harmless as the verdict returned by the jury did not rely on Dr. Temple’s testimony as to the reasonableness and necessity of plaintiffs’ laser spine surgery. With respect to plaintiff, Yuen Woo Lee, the verdict form presented the jury with the following two questions: (1) Was the negligence of defendants, John Bernard and Comcast of Philadelphia II, LLC a factual cause of harm to plaintiff, Yeung Woo Lee? and (2) Do you find that plaintiff, Yeung Woo Lee sustained a serious impairment to a body function as a result of the accident of April 23, 2012? The jury answered “no” to the first question and found that defendants were not the factual cause of any harm to plaintiff Yeung Woo Lee.

By contrast, however, with respect to plaintiff, Ok H. Lee, the juiy found that the defendants were the factual cause of harm to Ok H. Lee. Nonetheless, the jury found that plaintiff Ok H. Lee did not sustain a serious impairment to a body function as a result of the underlying accident.

Based on the foregoing, it is clear that the jury’s verdict did not hinge on the admission of Dr. Temple’s testimony, and the exclusion of said testimony would not have changed the outcome of the trial in any way. Factually speaking, with regards to Yeung Woo Lee, the jury found there to be no evidence which would support a finding that defendants were factually at fault for his injuries. Therefore, it logically follows that the testimony of Dr. Temple as to the reasonableness and necessity of Yeung Woo Lee’s spinal surgery procedure would have been meaningless in assisting the jury to reach a verdict. Similarly, with respect to Ok H. Lee, albeit the jury found the defendants’ negligence to be the factual cause of plaintiff’s injuries, based on the facts, the jury found that Ok H. Lee did not sustain a serious impairment to a body function which would require the assistance of expert testimony preferred by Dr. Temple.

Regardless of the rubric used, the analysis is the same. Whether or not plaintiffs’ laser spine surgery was reasonable or necessary was superfluous in aiding the trier of fact “in their search for truth.” McDaniel v. Merck, Sharp andDohme, 533 A.2d 436 (1987). Even generously construed, plaintiffs brief does not demonstrate that the trial court abused its discretion or made an error of law. It bears noting that plaintiffs have also failed to show prejudice resulting from the alleged mistake — if any.

Accordingly, plaintiffs’ motion for a new trial was properly denied.

ORDER

And now, this 19th day of Nov. 2014, upon consideration of defendants, Comcast of Philadelphia II, LLC and John P. Bernard’s response to plaintiffs’ post-trial motions, it is hereby ordered and decreed, that said plaintiffs’ motion is denied.