author: ASHWORTH, J.,

text:
    Commonwealth v. Calhoun

      Susan Moyer, assistant district attorney, for Commonwealth.

      Vincent J. Quinn, for defendant.
    November 30, 2009
   ASHWORTH, J.,

Randy A. Calhoun has filed a direct appeal to the Superior Court of Pennsylvania from his judgment of sentence imposed on December 13, 2007, as finalized by the court’s denial of his post-sentence motion to modify sentence nunc pro tunc on October 27, 2009.

I. BACKGROUND

On February 13, 2006, appellant was arrested and charged with simple assault, terroristic threats, harassment and recklessly endangering another person. The victim of these offenses was appellant’s wife, Karen Calhoun, and their two children. These charges were docketed to Information no. 873-2006. On June 12,2006, appellant pleaded guilty to all charges and immediately stood for sentencing. The Honorable Paul K. Allison sentenced appellant to 11 1/2 to 23 months incarceration in the Lancaster County Prison, plus three years probation. Appellant’s minimum sentence date was January 28, 2007 and his maximum sentence date was January 13, 2008. As a condition of the sentence, appellant was ordered to have no contact with his estranged wife, including through third parties.

Between August 15, 2006 and September 17, 2006, appellant used the Lancaster County Prison monitored telephone system to contact his mother, Ann Calhoun. Appellant made 26 threatening calls to his mother in South Carolina and further used his mother as a third-party contact and had his mother conveying threatening messages to his ex-wife. As a result, appellant was charged, while in prison, with stalking and terroristic threats. These new charges were docketed to Information no. 5853-2006.

Appellant was arraigned on the new charges on November 15,2006. In anticipation of entering a guilty plea to the charges, appellant received an order on August 1, 2007, for a court-appointed psychological evaluation to address questions of appellant’s competence and to aid in preparation of his guilty plea and sentencing.

On October 1, 2007, appellant tendered a straight guilty plea to these charges. After conducting an on-the-record colloquy, this court accepted the guilty plea and sentencing was deferred pending completion of a presentence investigation report. (N.T., guilty plea at 15.)

On December 13, 2007, appellant was sentenced to one and one-half years to seven years in the state correctional institution on the stalking charge and six to 23 months on the terroristic threats charge. These sentences were concurrent to one another but consecutive to appellant’s other sentence imposed on no. 873-2006. Appellant was represented at the guilty plea hearing and the sentencing hearing by court-appointed counsel, Mark F. Walmer, Esquire.

A timely post-sentence motion was filed on December 21, 2007, in which appellant sought to modify his sentence to include certain time credit. On January 3,2008, appellant filed an amended post-sentence motion in which he restated his claim for certain time credit but also included a motion to withdraw his guilty plea nunc pro tunc for the following reasons: (1) he was not advised of his rights adequately at either his guilty plea or sentencing hearings; (2) he was not aware that he was pleading guilty without a plea agreement; (3) he thought the most he could receive as a sentence was one to two years; (4) he did not understand the sentencing guidelines; and (5) he maintained his actual innocence on the underlying charges. (See appellant’s “amended post-sentence motions” at^3.)

As a result of these assertions and other issues raised by appellant, defense counsel included in the amended post-sentence motion a request for leave to withdraw so that new counsel could be appointed to address his effectiveness. (See appellant’s “amended post-sentence motions” at ¶13.) On February 5, 2008, the motion for leave to withdraw and appoint new appellate counsel was granted; the requests to modify sentence and withdraw guilty plea were denied. New counsel was not appointed, however, and no direct appeal was filed by appellant.

On June 22, 2009, appellant, acting pro se, filed a “motion for reconsideration of sentence nunc pro tunc,” which this court treated as a petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§9541-46. Pursuant to Rule 904(A) of the Pennsylvania Rules of Criminal Procedure, Vincent J. Quinn, Esquire, was appointed to represent Calhoun on his collateral claims and directed to file an amended petition on or before August 24.2009. However, after a thorough review of the record in this matter and after consultation with counsel, this court determined that appellant was entitled to relief and that an amended petition need not be filed. Accordingly, on September 9, 2009, Randy Calhoun’s petition for post-conviction collateral relief was granted, his appeal rights were reinstated nunc pro tunc and he was given 60 days to file a post-sentence motion.

Appellant’s post-sentence motion to modify sentence nunc pro tunc was timely filed on October 7, 2009, in which he challenged the discretionary aspects of his sentence. This motion was denied by order dated October 27.2009. A timely appeal to the Superior Court of Pennsylvania was filed on November 2, 2009.

Pursuant to this court’s directive, appellant furnished a statement of errors complained of on appeal which raised the following issues: (1) whether the imposition of one and one-half years to seven years in the state correctional institution on the stalking charge was excessive and unreasonable; (2) whether, in imposing the sentence, the court focused exclusively on “the serious nature of the offense and the victim’s articulation of fear and effectively ignored the fact that the appellant had been happily married for a number of years and had been gainfully employed within the community”; (3) whether the imposition of a sentence of one and one-half years to seven years was manifestly unreasonable given the nature and circumstances of the offense and the history and characteristics of the appellant; (4) whether the imposition of a sentence of one and one-half years to seven years violated the Sentencing Code’s provision that any sentence imposed should be “consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant,” 42 Pa.C.S. §9721 (b); and (5) whether the imposition of a minimum sentence of one and one-half years incarceration together with a maximum sentence of seven years, which is the maximum sentence which can be provided for by law, was manifestly excessive, extraordinarily severe and a manifest abuse of discretion. (See appellant’s statement of eiTors at ¶4.)

II. DISCUSSION

Appellant’s issues relate solely to his sentencing. Appellant does not dispute that the sentence imposed was legislatively permitted. With these issues, appellant is challenging the discretionary aspect of his sentencing. Commonwealth v. Hartman, 908 A.2d 316, 319 (Pa. Super. 2006). Such challenges must be raised in a post-sentence motion or during the sentencing proceedings, or they are waived. Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003). See also, Pa.R.A.P. 302(a). Appellant did raise these claims in his motion to modify sentence; therefore, these claims are preserved for appeal.

However, even when the discretionary aspects of a sentence are properly challenged, there is no automatic right to appeal. Our Superior Court in Commonwealth v. Hornaman, 920 A.2d 1282 (Pa. Super. 2007), recently reiterated the standard of review with respect to discretionary aspects of a criminal sentence:

“In order for an appellant to challenge the discretionary aspects of his sentence, he must first ‘set forth in his brief a concise statement of reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence.’ Pa.R.A.P. 2119(f). Second, the appellant must show ‘that there is a substantial question that the sentence is not appropriate under the Sentencing Code.’... See also, 42 Pa.C.S. §9781(b). Moreover, ‘ [w]hether a substantial question has been raised is determined on a case by case basis.’... Also, ‘we will be inclined to allow an appeal where an appellant advances a colorable argument that the trial judge’s actions were: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.’...” Id. at 1284. (citations omitted)

Only then do the facts require a grant of allowance of appeal of the discretionary aspects of the sentence.

In this case, appellant has filed with this court a timely statement of matters complained of on appeal in which he raises discretionary aspect of sentence claims. We will assume for purposes of this appeal that appellant will likewise satisfy the requirements of Pa.R.A.P. 2119(f) by filing a separate statement with the Superior Court. Additionally, our Supreme Court held in Commonwealth v. Mouzon, 571 Pa. 419, 435, 812 A.2d 617, 627 (2002) (plurality), that a claim that a sentence, which is within the statutory limits, is excessive can raise a substantial question. However, the court cautioned:

“This does not mean, however, that the Superior Court must accept bald allegations of excessiveness. Rather, only where the appellant’s Rule 2119(f) statement sufficiently articulates the manner in which the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process, will such a statement be deemed adequate to raise a substantial question so as to permit a grant of allowance of appeal of the discretionary aspects of the sentence.” Id.

In his Rule 1925 statement, appellant generally avers that his sentence is “manifestly excessive, extraordinarily severe and a manifest abuse of discretion.” (See statement of errors at t4(e).) Appellant, however, does allege at paragraph 4(d) of the statement that the court imposed a sentence in violation of a particular provision of the Sentencing Code. Specifically, Calhoun has averred that, in view of the various mitigating circumstances which were developed on behalf of appellant at sentencing and in his motion to modify sentence, a.sentence of one and one-half to seven years incarceration was not “consistent with the protection of the public, the gravity of the offenses, and the rehabilitative needs of the criminal defendant,” as required by 42 Pa.C.S. §9721 (b). Thus, as appellant has challenged his sentence imposed under 42 Pa.C.S. §9721(b), which is a specific provision of the Sentencing Code, he has raised a substantial question on appeal and we will address the merits of appellant’s discretionary aspect of sentence claim. See Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957 (2007). See also, Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006) (where appellant claims trial court failed to consider the factors set forth in 42 Pa.C.S. §9721 (b), substantial question has been raised for appellate review).

We begin by noting that sentencing is within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Commonwealth v. Tirado, 870 A.2d 362, 366 (Pa. Super. 2005). An abuse of discretion is more than an error in judgment. A sentencing court has not abused its discretion “unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill will.” Walls, 592 Pa. at 564, 926 A.2d at 961 (quoting Commonwealth v. Smith, 543 Pa. 566, 571, 673 A.2d 893, 895 (1996)).

In considering whether a sentence was unreasonable the appellate court must give great weight to the sentencing judge’s discretion, as he or she is in “the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it.” Walls, 592 Pa. at 565, 926 A.2d at 961 (quoting Commonwealth v. Ward, 524 Pa. 48, 52, 568 A.2d 1242, 1243 (1990). See also, Commonwealth v. Ellis, 700 A.2d 948, 958 (Pa. Super. 1997) (noting that the sentencing court is in the best position to measure various factors such as the nature of the crime, the defendant’s character, and the defendant’s display of remorse, defiance or indifference).

A sentence will not be disturbed where it is evident that the sentencing court was aware of the sentencing considerations and weighed the considerations in a meaningful fashion. Commonwealth v. Cappellini, 456 Pa. Super. 498, 513, 690 A.2d 1220, 1228 (1997). Moreover, where the court’s sentencing colloquy “shows consideration of the defendant’s circumstances, prior criminal record, personal characteristics and rehabilitative potential, and the record indicates that the court had the benefit of the presentence report, an adequate statement of the reasons for the sentence imposed has been given.” Commonwealth v. Brown, 741 A.2d 726, 735-36 (Pa. Super. 1999) (quoting Commonwealth v. Phillips, 411 Pa. Super. 329, 344, 601 A.2d 816, 823-24 (1992)).

In this case, it is clear that in fashioning appellant’s sentence the court considered the individual circumstances concerning appellant and particularly any mitigating factors. See 42 Pa.C.S. §9781(d). As noted at the sentencing hearing, the court carefully considered the following factors: appellant’s age (47); his family history, including a physically abusive father; his educational background; his established employment history; his extensive prior criminal record beginning in 1988; his substance abuse history, starting with his use of marijuana at the age of 17, alcohol at 18, cocaine in his late 20s, and prescription pain medications in his early 30s; his mental health, which includes a diagnosis of bi-polar disorder, depression ADHD and poly substance abuse; his 14-year marriage; and his rehabilitative needs. (N.T., sentencing at 9-10.)

It is clear from the record that this court carefully considered the entire presentence investigation report. As our Superior Court noted:

“Since the sentencing court had and considered a presentence report, this fact alone was adequate to support the sentence, and due to the court’s explicit reliance on that report, we are required to presume that the court properly weighed the mitigating factors present in the case____‘In imposing sentence, the trial court is required to consider the particular circumstances of the offense and the character of the defendant. The trial court should refer to the defendant’s prior criminal record, age, personal characteristics, and potential for rehabilitation. However, where the sentencing judge had the benefit of a presentence investigation report, it will be presumed that he or she was aware of the relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors. . . Commonwealth v. Fowler, 893 A.2d 758, 766-67 (Pa. Super. 2006). (citations omitted)

As our Supreme Court explained: “It would be foolish, indeed, to take the position that if a court is in possession of the facts, it will fail to apply them to the case at hand.” Commonwealth v. Devers, 519 Pa. 88, 102, 546 A.2d 12, 18 (1988).

The court was well aware of all of the evidence presented by appellant on his behalf in support of mitigation. However, the court had to balance carefully this mitigating evidence against appellant’s risk to his family and others in the community, which it did. On balance, the seriousness of the offense and the risk of harm to others coupled with appellant’s attitude towards the offenses vastly outweighed any mitigating evidence.

In rejecting appellant’s request for immediate release from prison and counseling in an outpatient setting, the court emphasized appellant’s need for treatment in a more controlled environment:

“Mr. Calhoun, what you are asking of me is to take a gamble. To take a risk to see if, perhaps, you have chosen to change your behavior in the way that you interact and treat other people. A risk that if I am wrong could result in very serious consequences.
“At the moment, unless and until you demonstrate in a controlled environment that you choose to change your behavior, I’m not prepared to take that risk. That is not to say at some point in the future you will not be given the opportunity to demonstrate it in a less controlled environment, until I’m satisfied or until the authorities involved are satisfied, following an extensive psychiatric evaluation and following treatment. But I note, I have reviewed the psychiatric evaluations. There is very little in the way of ongoing treatment from the time of these offenses. You are on medication but you have been incarcerated and simply haven’t established enough of a track record, for my satisfaction, to demonstrate you are not a risk to others.
“... I want to make sure any treatment that you get is in a controlled environment, where you don’t have the opportunity to run away....
“Mr. Calhoun, before I am prepared to take the risk of you injuring yourself and others in the process, I want to make sure you have additional treatment. And that you have an opportunity to demonstrate in an environment where you can’t run away and can’t just go off and do what you want to do. Transitional living is important and it is critical, but transitional living is only for certain individuals at a given time in their rehabilitation or incarceration process. And at this time I do not believe it is suitable.
“... The way the state system is established now ... [tjhere are outstanding programs that are available that also provide for transitional living. There are outstanding programs that didn’t exist three or four years ago, where you have transitional living of the type recommended by your attorney. Those transitional living facilities are available when the people who have had an opportunity to evaluate prisoners are satisfied they are ready for it. At the moment I’m not satisfied you are ready for it.” (N.T., sentencing at 29-32.)

Appellant was made eligible for and encouraged to participate in all available psychiatric and psychological programs, as well as any drug and alcohol programs in the state correctional system. (Id. at 33-34.) As the court noted: “Whether you realize it or not, the sentence I imposed here today is intended to help you and not just punish you. It is intended to get your life back on track.” (Id. at 34.) Clearly, the court carefully considered all of the evidence in the presentence investigation report, as well as the evidence presented by appellant on his behalf in support of mitigation.

In addition to the presentence investigation report, the court also took into consideration the victim’s letter and statement to the court (id. at 3-6), appellant’s statement to the court (id. at 24-26), what defense counsel had to say on behalf of appellant (id. at 13-23), and what the prosecutor had to say on behalf of the Commonwealth (id. at 8-13,26), as well as the provisions of the Sentencing Code, the authorized penalties and the circumstances of the offenses.

Moreover, the court carefully considered the sentencing guidelines in determining the time of incarceration for this appellant’s offenses. Here, appellant pleaded guilty to stalking, a felony in the third degree. A person convicted of such crimes may be sentenced to imprisonment for not more than seven years. 18Pa.C.S. §1103(3). Appellant’s sentence of one and one-half to seven years did not exceed the statutory maximum. Nor were any of the individual sentences outside the standard guidelines.

Appellant cannot point to any factor that was not brought to the attention of this court either during the guilty plea hearing, in the presentence investigation report, or at the sentencing hearing. To the contrary, the record as a whole demonstrates that the court provided sufficient reasons for its sentence and in fashioning the sentence the court clearly considered all of the individual circumstances concerning appellant and the crimes he committed.

Thus, the assertion that appellant’s sentence is “unreasonable” is without any support in the record or the facts of this case. The judgment exercised in this case was neither manifestly unreasonable, nor the result of partiality, prejudice, bias or ill will, and, as such, the court did not abuse its discretion. See Mouzon, 571 Pa. at 430-31, 812 A.2d at 625.

III. CONCLUSION

For the reasons set forth above, appellant Randy A. Calhoun’s issues on appeal are meritless and it is respectfully suggested that his appeal should be dismissed and his judgment of sentence affirmed.

Accordingly, we enter the following:

ORDER

And now, November 30, 2009, the court hereby submits this opinion pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure.

      .18 Pa.C.S. §2701,18 Pa.C.S. §2706(a)(l), 18 Pa.C.S. §2709 and 18 Pa.C.S. §2705, respectively.

      . 18 Pa.C.S. §2709.1(a)(1) and 18 Pa.C.S. §2706(a)(l), respectively.

      . There was, however, an ongoing dialogue regarding appellant’s time credit on the sentence at no. 5853-2006. On January 15, 2008, defense counsel and the assistant district attorney first met in my chambers to discuss this issue. It was not finally resolved until August 20, 2008.

      . It is well-settled that “the PCRA provides the sole means for obtaining collateral review, and that any petition filed after the judgment of sentence becomes final will be treated as a PCRA petition.” Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007) (quoting Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002)). See also, Commonwealth v. Evans, 866 A.2d 442 (Pa. Super. 2005) (concluding motion for reconsideration or modification of sentence required treatment under the PCRA).

      . It is well-established that a sentencing court can impose a sentence that is the maximum period authorized by the statute. 42 Pa.C.S. §9756(a). Here, appellant was found guilty of one count of stalking, which is graded as a felony in the third degree. A person convicted of such a crime may be sentenced to imprisonment for not more than seven years. See 18 Pa.C.S. §1103(3). Appellant’s sentence of one and one-half years to seven years did not exceed the statutory maximum.

      . Section 9721(b) provides in pertinent part:
      “In selecting from the alternatives set forth for subsection (a) the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant. ...” 42 Pa.C.S. §9721 (b).


source: Caselaw Access Project

author: GRINE, J,

license: Public Domain

text:
    Bank of New York Mellon v. Hall

      Steven K. Eisenberg, for plaintiffs.

      Jerry Hall and Michele Hall, pro se.
    February 9, 2010
   GRINE, J,

Presently before the court is a preliminary objection brought by Jerry and Michele Flail (defendants). Defendants have filed this objection against a mortgage foreclosure action asserted by The Bank of New York Mellon (plaintiff). Defendants ask the court to sustain their obj ection and require plaintiff to provide a valid Act 91 notice. An order was issued on December 18, 2009, at which time the parties were ordered to file briefs. Both parties submitted such briefs in a timely manner, and the court is now ready to make a decision.

FACTUAL BACKGROUND

On or about September 12,2005, defendants executed a mortgage with plaintiff as a security instrument to a promissory note in the amount of $175,500. Defendants defaulted on this mortgage by failing to make payment due on September 1,2007 and each subsequent payment due thereafter. In order to comply with the Homeowner’s Emergency Assistance Act, plaintiff sent an Act 91 notice to defendants in January 2008. Defendants scheduled a meeting with a consumer counseling agency listed in the notice to possibly receive assistance in making their mortgage payments.

The consumer counseling agency required defendants to provide a copy of the recorded deed and mortgage for their property. Defendants went to the Centre County Recorder of Deeds office to obtain these documents only to discover that the deed to their property was still in the previous owners’ names and there was no mortgage recorded. The consumer counseling agency informed defendants that they were unable to aid them in applying for emergency mortgage assistance with the Pennsylvania Housing Finance Agency (PHFA) because defendants did not have a recorded deed and mortgage to their property.

In 2009, the subject mortgage evidencing the real property as security was recorded in the Centre County Recorder of Deeds office at book 2004 p. 398. On October 26, 2009, plaintiff filed a mortgage foreclosure complaint pursuant to Pa.R.C.P. 1141, due to defendants’ default on the above referenced mortgage for failure to make the payments due on the note from September 1, 2007 and each subsequent payment due thereafter. On December 14, 2009, defendants filed preliminary ejections to plaintiff’s complaint for plaintiff’s failure to send a valid Act 91 notice. Defendants assert that because the deed and mortgage were not recorded, they could not seek assistance pursuant to the Act 91 notice for possible repayment of the amount due on their mortgage.

DISCUSSION

The Act 91 notice requirement is set out in 35 P.S. §1680.403c:

“(a) Any mortgagee who desires to foreclose upon a mortgage shall send to such mortgagor at this or her last known address the notice provided in subsection (b): provided, however, that such mortgagor shall be at least 60 days contractually delinquent in his mortgage payments or be in violation of any other provision of such mortgage.
“(b)(1) The agency shall prepare a notice which shall include all the information required by this subsection and by section 403 of the act of January 30, 1974 (P.L. 13, no. 6), referred to as the Loan Interest and Protection Law and referred to commonly as the Usury Law. This notice shall be in plain language and specifically state that the recipient of the notice may qualify for financial assistance under the Homeowner’s Emergency Mortgage Assistance Program. This notice shall contain the telephone number and the address of a local consumer credit counseling agency. This notice shall be in lieu of any other notice required by law ....”

The purpose of this notice, referred to as an “Act 91 notice”, is to inform the mortgagor of a different means of satisfying his/her obligation under a mortgage in order to avoid foreclosure and to provide a timetable in which such means must be accomplished. See Wells Fargo Bank v. Monroe, 966 A.2d 1140, 1142 (Pa. Super. 2009) (citing 35 P.S. §1680.403c and Fish v. Pennsylvania Housing Finance Agency, 931 A.2d 764, 767 (Pa. Commw. 2007). The statute requires an Act 91 notice to be sent to the mortgagor before the mortgagee can commence any legal action against the mortgagor. An Act 91 notice was sent to defendants in January 2008, but defendants argue that this notice was deficient due to their inability to receive assistance from a consumer counseling agency as a result of plaintiff’s failure to record their deed and mortgage. Plaintiff argues that defendants are not entitled to any further notice beyond what they received because the statute does not require the mortgage to be recorded and according to Pennsylvania law, the mortgage is binding upon the defendants whether recorded or unrecorded. Plaintiff cites U.S. Bank N.A. v. Mallory, 982 A.2d 986 (Pa. Super. 2009), as support for this argument.

U.S. Bank v. Mallory holds that the recording of an assignment of a mortgage is not a prerequisite to an assignee having standing to seek enforcement of the mortgage through foreclosure. The plaintiff assignee averred in its complaint that it was the legal owner of the mortgage and was in the process of formalizing its ownership through the recording process. Id. at 992. The court was persuaded that the defendant was sufficiently put on notice of the plaintiff assignee’s claim in the foreclosure action because plaintiff assignee set forth the date and existence of the mortgage, the fact that another company assignor is the current legal owner of the mortgage, and that assignee has assumed assignor’s rights under the mortgage and is in the process of formalizing this assignment. Id. at 992-93. Plaintiff, in this case, had a recorded mortgage at the time of its complaint, and therefore has standing to seek enforcement of the mortgage through foreclosure. Standing is not the issue presented in defendants’ preliminary objection though. The issue, which will be further discussed, is whether plaintiff is required to resend an Act 91 notice, since in January 2008, when the original notice was sent, defendants were not able to seek any assistance due to plaintiff’s failure to have a recorded deed and mortgage at that time.

35 P.S. §1680.403c(g) offers guidance on requiring the mortgagee to resend the Act 91 notice:

“(g) Notwithstanding any other provisions of this section, a mortgagee shall not be required to send the uniform notice provided in subsection (b) to any mortgagor who has already been sent the uniform notice and:
“(1) who did not apply for a mortgage assistance loan;
“(2) who applied for a mortgage assistance loan but whose application was denied; or
“(3) whose mortgage assistance disbursements were terminated by the agency for any reason.”

Plaintiff argues that this statute makes clear that no further notice needs to be provided to the mortgagor who has received a notice and not applied for assistance or has otherwise been turned down for assistance. It is not clear from the statute whether plaintiff mortgagee should be required to resend the Act 91 notice. Defendants did receive the notice in January 2008 and did not apply for a mortgage assistance loan. Defendants claim that they would have applied for a mortgage assistance loan though but for plaintiff’s failure to record the deed and mortgage.

In Wells Fargo Bank v. Monroe, 966 A.2d 1140 (Pa. Super. 2009), the mortgagors argued that the Act 91 notice was deficient because it only identified the servicer of the loan and not the mortgagee. The court held that even if the notice was defective, the mortgagors exercised all of their rights available because they met with a credit counseling agency, applied for mortgage assistance, were denied assistance, and PHFA’s decision was affirmed on appeal. Id. at 1143. Defendants, in this case, were not able to exercise all of their rights available under the Act 91 notice. Defendants were not granted a meeting with a credit counseling agency due to the lack of a recorded mortgage and deed and therefore did not even get a chance to apply for mortgage assistance. Where the mortgagors in Wells Fargo Bank v. Monroe suffered no prejudice as a result of the deficient Act 91 notice, defendants mortgagors in this case did suffer prejudice because they were not able to apply for mortgage assistance.

In In re Miller, 90 B.R. 762, (Bkrtcy E.D.Pa. 1988), the debtor alleged that the Act 91 notice that she received was sent at a time period too remote from the institution of the litigation to be effective. The court recognized that upon sending an Act 91 notice to a mortgagor, the mortgagee affords the mortgagor with new rights to apply for homeowner’s emergency assistance. Id. at 768. The court further recognized that while some delay may result in the mortgagee’s ability to commence a legal action against the mortgagor there is mutual benefit to the parties if the mortgagor is able to receive assistance with the mortgage payments. Id. at 769. On the issue of resending the Act 91 notice the court states, “We believe that a rule of reason must control the issue of when a mortgagee is obliged to resend a notice to a mortgagor of the right to apply for benefits under Act 91 and that such a rule should be liberally construed to require a new notice wherever it appears practical to do so.” Id. This court believes that using a rule of reason in this case that plaintiff is required to resend the Act 91 notice to defendants. It is practical to require plaintiff to resend the notice to defendants because the initial Act 91 notice was ineffective due to defendants’ inability to receive any kind of assistance.

Plaintiff further argues that it is not required to send the notice because pursuant to 35 P.S. §1680.403c(f), a mortgagee shall not be required to send the notice “to any mortgagor who is more than 24 consecutive or nonconsecutive months in arrears on the residential mortgage in question, no matter what the reason therefor; . . . Plaintiff offers support that at the time of foreclosure the defendants were due for 26 monthly payments and in their answer filed with the court defendants admit this fact. While a mortgagee may not be required to send the Act 91 notice to any mortgagor more than 24 months in arrears the statute does not instruct on requiring a mortgagee to resend a notice because the original notice was defective when sent to the mortgagor, who at the time of receipt was not more than 24 months in arrears.

Since defendants suffered prejudice from receiving a deficient Act 91 notice in January 2008 and it is practical to require plaintiff to resend the notice so defendants may properly apply for emergency homeowner’s assistance this court grants defendants’ preliminary objection and orders plaintiff to send the defendants a new Act 91 notice.

ORDER

And now, February 9,2010, upon consideration of the parties’ briefs, the court grants the defendants’ preliminary objection, plaintiff is ordered to send the defendants a new Act 91 notice so that they may apply for emergency mortgage assistance with the Pennsylvania Housing Finance Agency under The Homeowner’s Emergency Assistance Act.


author: COX, J.,

text:
    Blakely v. St. Marguerite’s Mutual Beneficial Society

      John E. Quinn, for plaintiff.

      Joseph W. Selep and Christina A. Rogers, for defendant.
    November 10, 2009
   COX, J.,

Before the court for disposition is the motion for summary judgment filed on behalf of the defendant St. Marguerite’s Mutual Beneficial Society, which argues that St. Marguerite’s floor was not in an unreasonably dangerous condition, the defendant did not have actual or constructive notice of the alleged dangerous condition and the condition of the floor was open and obvious to the plaintiff.

St. Marguerite’s is a social club with its place of business located at 27 North Liberty Street, New Castle, Lawrence County, Pennsylvania. St. Marguerite’s routinely held a “wing night” for its members and hosted a “fish fry” on Friday evenings during Lent. The plaintiff often prepared and served food for those events and was able to retain any money she received from the sale of food. On March 12,2008, the plaintiff Gwen A. Blakely and Mary Jane Domenick arrived at the St. Marguerite’s club premises to clean the deep fryers in preparation for “wing night” the following night. The plaintiff slid on the tile floor as she was carrying a tray of boiling grease and water from the fryer. The grease and water spilled on the plaintiff and she suffered bums and scarring to her arms, legs and buttocks.

The plaintiff filed a complaint on June 26, 2008, and discovery was conducted by the parties. On August 19, 2009, St. Marguerite’s filed this motion for summary judgment contending that St. Marguerite’s floor was not in an unreasonably dangerous condition, the defendant did not have actual or constructive notice of the alleged dangerous condition and the condition of the floor was open and obvious to the plaintiff.

The purpose of the summary judgment rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after the relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). The mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for a trial. The summary judgment rule exists to dispense with a trial of a case or, in some matters, issues in a case, where a party lacks the beginnings of evidence to establish or contest a material issue. Ertel v. Patriot-News Company, 544 Pa. 93, 674 A.2d 1038 (1996), reargument denied (1996), certiorari denied, 519 U.S. 1008 (1996).

Any party may move for summary judgment in whole or in part as a matter of law whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report or if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa.R.C.P. 1035.2. However, summary judgment is only appropriate when discovery relevant to the motion has been completed. Id. Summary judgment may be granted only in cases where it is clear and free from doubt that there is no genuine issue as to any material fact and that the moving party is entitled to a summary judgment as a matter of law. Kafando v. Erie Ceramic Arts Co., 764 A.2d 59, 61 (Pa. Super. 2000) (citing Rush v. Philadelphia Newspapers Inc., 732 A.2d 648, 650-51 (Pa. Super. 1999)).

The moving party bears the burden of proving the non-existence of any genuine issue of material fact. Kafando, supra. A material fact, for summary judgment purposes, is one that directly affects the outcome of the case. Gerrow v. Shincor Silicones Inc., 756 A.2d 697 (Pa. Super. 2000); Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000). The non-moving party must adduce sufficient evidence on issues essential to his case on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ertel, supra. The non-moving party must demonstrate that there is a genuine issue for trial and may not rest on averments in its pleadings. DeSantis v. Frick Company, 745 A.2d 624 (Pa. Super. 1999); Merriweather v. Philadelphia Newspapers Inc., 453 Pa. Super. 464, 470-72, 684 A.2d 137, 140 (1996).

When determining whether to grant a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Hughes v. Seven Springs Farm Inc., 563 Pa. 501, 762 A.2d 339 (2000); Dean v. PennDOT, 561 Pa. 503, 751 A.2d 1130 (2000). Summary judgment is proper only when the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. P.J.S. v. Pennsylvania State Ethics Commission, 555 Pa. 149, 153, 723 A.2d 174, 176 (1999); Basile v. H&R Block Inc., 563 Pa. 358, 761 A.2d 1115 (2000); Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000); Stevens Painton Corporation v. First State Insurance Company, 746 A.2d 649 (Pa. Super. 2000).

Only when the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment. Basile, supra. If there are no genuine issues of material fact in dispute or if the non-moving party has failed to state a prima facie case, summary judgment may be granted. Dudley v. USX Corporation, 414 Pa. Super. 160, 606 A.2d 916 (1992). Thus, a proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense. Rauch v. Mike-Mayer, 783 A.2d 815 (Pa. Super. 2001). The trial court must confine its inquiry when confronted with a motion for summary judgment to questions of whether material factual disputes exist. Township of Bensalem v. Moore, 152 Pa. Commw. 540, 620 A.2d 76 (1993). It is not the function of the court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Pennsylvania Securities Commission, 134 Pa. Commw. 494, 579 A.2d 1358 (1990).

First, St. Marguerite’s claims that the tile floor located in the club’s kitchen was not in an unreasonably dangerous condition. It must be noted that the parties stipulated the plaintiff would be considered an invitee for the purpose of this motion.

It is well-established that the possessor of land has a duty to exercise reasonable care to prevent harm caused by a dangerous condition of the land. PennDOT v. Patton, 546 Pa. 562, 567, 686 A.2d 1302, 1304-1305 (1997) (quoting Restatement (Second) of Torts §343). However, the possessor of land is not an insurer of a business invitee’s well-being and a possessor of land does not incur liability merely because an accident occurred. Hess v. Sun Ray Drug Co., 387 Pa. 199, 200-201, 127 A.2d 699, 700-701 (1956) (citing Parker v. McCrory Stores Corp., 376 Pa. 122, 101 A.2d 377 (1954)). A possessor of land owes a duty to protect an invitee from foreseeable harm, but that does not include conditions that are known to, or discoverable by, the invitee. Carrender v. Fitterer, 503 Pa. 178, 185, 469 A.2d 120, 123 (1983) (citing Restatement (Second) of Torts §§341 A, 343, 343A). The possessor is liable only if the following conditions are met:

“(a) knows or by the exercise of reasonable care would discover the condition, and should be realized that it involves an unreasonable risk of harm to such invitee, and
“(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
“(c) fails to exercise reasonable care to protect them against the danger.” Id.

A landowner must make a reasonable inspection of the premises to discover the actual condition and any latent defects on the premises. Argo v. Goodstein, 438 Pa. 468, 476-77, 265 A.2d 783, 787 (1970) (citing Restatement (Second) of Torts §343). The extent of the care to be exercised by the possessor of land is determined by the circumstances surrounding the use for which the invitee entered the property. Starke v. Long, 221 Pa. Super. 338, 341, 292 A.2d 440, 443 (1972) (quoting Restatement (Second) of Torts §343). “A possessor who holds his land open to others must possess and exercise a knowledge of the dangerous qualities of the place itself and the appliances provided therein which is not required of his patrons.” Starke, 221 Pa. Super. at 344, 292 A.2d at 444. It is apparent that no inference of negligence can be drawn merely because there is a greasy substance on the floor and that substance caused the plaintiff’s injury. Reay v. Montgomery Ward & Company Inc., 154 Pa. Super. 119, 120, 35 A.2d 558 (1944) (citing Dickey v. Boggs & Buhl Inc., 345 Pa. 453, 29 A.2d 1 (1942)).

Where previous experiences provide the defendant with knowledge that a slippery substance accumulates on the floor, the defendant must take precautions to warn or protect the invitees traversing the floor, which includes mopping the floor, placing a rug on the floor or placing a warning sign near the problem area. Miller v. Peter J. Schmitt & Co. Inc., 405 Pa. Super. 502, 511, 592 A.2d 1324, 1328-29 (1991). In Miller, an ice service employee delivered ice to a supermarket in accordance with a contract. The employee had been delivering ice to the supermarket for more than one year, which included delivering several hundred bags of ice weekly. The procedure for delivering the ice required that the employee utilize an open cart to transport the bags of ice from the delivery truck to the ice machine. While transporting the ice, water from the bags would leak on the highly glossed floors in the supermarket, causing a slippery surface. Normally, the employee carried a mop on the cart to clean any spillage or leakage off the floor, but failed to do so during the day in question. Additionally, the supermarket had rugs placed in the produce area as a precaution for the moisture that accumulated on the floor in that area, but failed to place rugs near the ice machine. Several minutes after the ice was delivered, the plaintiff walked on the wet surface near the ice machine and fell. It must be noted that the supermarket subsequently placed rugs near the ice machine after the plaintiff’s accident. The Miller court denied the supermarket’s motion for judgment n.o.v. as the plaintiff presented a question of fact for the jury as to whether the supermarket should have placed rugs near the ice machine to prevent slipping. Id.

In the case sub judice, the plaintiff provided testimony that the floor was a dangerous condition as it was constructed of tile and located near a fryer from which oil was frequently spilled causing the floor to become slippery. Additionally, Nick Perrotta, president of St. Marguerite’s, testified that he made sure mats were placed on the floor when he used the fryers and he believed the mats should be placed on the floor when anyone else used the fryers as well. However, the mats were not placed on the floor near the fryers in the kitchen when the plaintiff slipped and was injured because the mats were removed and stored outside due to the previous caterers’ failure to remove them while cleaning the tile floor. Also, Mary Jane Domenick observed the mats outside, but did not know if they were available for use in the kitchen area, indicating that those who were working on the night of plaintiff’s accident were unaware of the availability of the mats. In accordance with the Miller decision, it is a question of fact for a jury to decide whether the tile floor near the fryer was an unreasonably dangerous condition and whether St. Marguerite’s should have placed the mats near the fryer to remedy that condition.

Next, St. Marguerite’s claims that it did not have actual or constructive notice of the defective condition of the tile floor in the kitchen. The plaintiff indicates that St. Marguerite’s had notice of the condition as evidenced by the testimony of its president, Nick Perrotta.

Actual and constructive notice of a defective condition is a prerequisite to impose liability upon a possessor of land. Stais v. Sears-Roebuck and Company, 378 Pa. 289, 292, 106 A.2d 216, 217 (1954). (citations omitted) If the dangerous condition was caused by the defendant or the defendant’s agent, the plaintiff does not have to prove any notice to hold the defendant liable for the resulting harm. Porro v. Century III Associates, 846 A.2d 1282, 1285-86 (Pa. Super. 2004) (quoting Myers v. Penn Traffic Co., 414 Pa. Super. 181, 186, 606 A.2d 926, 929 (1992)). Conversely, if the condition was not caused by the defendant or the defendant’s agent, the plaintiff must establish that the defendant had notice of the dangerous condition. Id. “[T]he time of constructive notice depends on the particular circumstances of the case.” Lederhandler v. Bolotini, 402 Pa. 250, 255, 167 A.2d 157 159 (1961). In accordance with that rule, there can be a situation where five minutes would be adequate notice and where five hours would be inadequate notice. Branch v. Philadelphia Transportation Company, 374 Pa. 60, 65, 96 A.2d 860, 862 (1953). The existence of constructive notice of a dangerous condition is based upon several factors, including but not limited to: (1) the time that elapsed from the creation of the defect and the incident in question; (2) the size and physical condition of the premises; (3) the nature of the business; (4) the number of people using the premises; (5) the frequency of use of the premises; (6) the nature of the defect; (7) the defect’s location on the premises; and (8) the opportunity that the defendant had to remedy the defect. Davanti v. Hummell, 409 Pa. 28, 32-33, 185 A.2d 554, 556-57 (1962).

In the current matter, St. Marguerite’s club had notice of the alleged dangerous condition of the floor as evidenced by the deposition testimony of Nick Perrotta. He stated that he always placed the mats on the tile floor before using the fryers and the mats should always be used when the fryers were being utilized. Additionally, Mr. Perrotta informed Mary Jane Domenick that mats were customarily placed near the deep fryers; however, they were removed because caterers commonly failed to remove the mats to adequately clean the floors. The evidence presented indicates that St. Marguerite’s club was aware of the dangerous condition of the floor caused by the spillage of oil and failed to remedy that condition by placing mats on the floor surrounding the deep fryers, even though Mr. Perrotta routinely did so when he utilized the fryers.

Finally, St. Marguerite’s club contends that the danger presented by oil on the tile floor was an open and obvious condition. The plaintiff should have been aware of this condition and protected herself from it. The plaintiff contends that she was unaware of the substance on the floor and also the mats were not available to her for protection when walking on the slippery tile.

Pennsylvania law does not impose liability upon a possessor of land if a dangerous condition was obvious to the injured party. Carrender, supra (citing Palenscar v. Michael J. Bobb Inc., 439 Pa. 101, 106-107, 266 A.2d 478, 480, 483 (1970); Repyneck v. Tarantino, 415 Pa. 92, 95, 202 A.2d 105, 107 (1964); Kubacki v. Citizens Water Co., 403 Pa. 472, 170 A.2d 349 (1961)). “[A] danger is obvious when ‘both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence, and judgment.’” Baran v. Pagnotti Enterprises Inc., 402 Pa. Super. 298, 306, 586 A.2d 978, 982 (1991) (quoting Berman v. Radnor Rolls Inc., 374 Pa. Super. 118, 137, 542 A.2d 525, 534 (1988)). Moreover, a possessor of land is not liable when an invitee discovers an obvious and avoidable condition and decides to encounter the same voluntarily. Chiricos v. Forest Lakes Council Boy Scouts of America, 391 Pa. Super. 491, 498-99, 571 A.2d 474, 477 (1990). It must also be noted that a possessor of land may still incur liability where the possessor should anticipate the dangerous condition will cause physical harm, even though the dangerous condition is obvious to the plaintiff. Jones v. Three Rivers Management Corporation, 483 Pa. 75, 88, 394 A.2d 546, 552 (1978) (citing Restatement (Second) Torts §343(a) comment f).

In Kuminkoski v. Daum, 429 Pa. 494, 496, 240 A.2d 524, 525 (1968), the court held that a verdict could be sustained by the evidence presented by the plaintiff where the plaintiff slipped on sawdust spread throughout a butcher’s shop. The plaintiff exited a butcher’s shop carrying a large package containing meat she just purchased and she could not determine the nature of the substance she was walking on. The case proceeded to trial and the jury was unable to reach a unanimous verdict. The defendant moved for judgment on the whole record, which was granted by the trial court and was appealed by the plaintiff. The Kuminkoski court reasoned that the plaintiff could not be held liable for contributory negligence as a matter of law as she lacked the opportunity to become acquainted with the sawdust on the floor prior to purchasing the meat and would not have known that the substance was present, nor that it caused an unstable surface on the steps near the exit, even though the sawdust was readily observable. Id. The Kuminkoski court held, “[PJlaintiffs evidence must be considered in the light most favorable to her with the benefit of the inferences deduced from the testimony. So considered, we cannot say that plaintiff failed to malee out the existence of an unsafe or dangerous condition.” Id.

The current case is similar to Kuminkoski as the plaintiff has provided evidence that she was unaware of the existence of the slippery substance on the tile floor near the fiyers. It appears that the substance accumulated on the floor while the plaintiff was cleaning the fryers and carrying large pans containing boiling water and oil. The evidence creates a question of fact as to whether the plaintiff was aware of the slippery condition of the floor and whether she was negligent for failing to take reasonable precautions when traversing the floor. Moreover, the plaintiff presented testimony that the mats were not placed on the floor surrounding the fryers and the plaintiff and Ms. Domenick were unaware of the mats availability because Mr. Perrotta informed Ms. Domenick that the mats were stored outside due to caterers not cleaning underneath them. In accordance with the court’s decision in Kuminkoski, the plaintiff in the current matter has presented sufficient evidence to permit this case to proceed to trial.

For the reasons set forth in this opinion, the defendant’s motion for summary judgment is denied as the plaintiff has presented sufficient evidence to create issues of material fact for trial.

ORDER

Now this November 10, 2009, this case being before the court on October 26,2009, for oral argument on the motion for summary judgment filed by the defendant, with both parties appearing through counsel, the plaintiff, Gwen A. Blakely, represented through counsel, John E. Quinn, Esquire and the defendant, St. Marguerite’s Mutual Beneficial Society, represented through counsel, Joseph W. Selep, Esquire and Christina A. Rogers, Esquire and after consideration of the arguments and briefs presented and submitted by counsel, and a complete and thorough review of the applicable record, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

(1) In accordance with the attached opinion, the motion for summary judgment filed by the defendant is hereby denied.

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


author: COX, J,

text:
    Fannie Mae v. Ferraro

      Robert P. Wendt, for plaintiff.

      Thomas W Leslie, for defendants.
    November 20, 2009
   COX, J,

Before the court for disposition is the motion for summary judgment filed on behalf of the plaintiff Fannie Mae, which argues that the plaintiff has a right to immediate possession of the property and the defendants’ counterclaim should be dismissed as it is an improper collateral attack of a valid sheriff’s sale.

The plaintiff has filed this action in ejectment against Janet M. Ferraro, deceased, or the occupants of 314 Roberts Lane, New Castle, Lawrence County, Pennsylvania. Carl D’Augostine and Linda D’Augostine (occupants) are the current occupants of the property in question. The plaintiff has averred that a valid sheriff’s sale occurred after foreclosure proceedings and the occupants did not file any objections to the sheriff’s sale; thus, the plaintiff is entitled to possession of the property. The occupants filed an answer, new matter and counterclaim to the plaintiff’s complaint averring counterclaims for breach of contract and specific performance, which arose from negotiations with the plaintiff to purchase the property prior to the sheriff’s sale. The occupants claim that the parties reached an agreement regarding the purchase of the property. However, the plaintiff proceeded with the sheriff’s sale and, as a result, the plaintiff became the record owner of the property through a sheriff’s deed recorded in the Office of the Recorder of Deeds of Lawrence County on April 2, 2008. The plaintiff has demanded possession of the property, but the occupants refuse to vacate the premises.

The plaintiff filed the current motion for summary judgment alleging that the occupants have attempted to improperly challenge a valid sheriff’s sale through a counterclaim in a collateral proceeding. Conversely, the occupants admit that the sheriff’s sale was valid, but claim they are entitled to possession of the property because the parties reached an agreement where the occupants would purchase the property. The occupants argue the plaintiff breached that agreement when it proceeded with the sheriff’s sale.

The purpose of the summary judgment rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after the relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). Summary judgment may be granted only in cases where it is clear and free from doubt that there is no genuine issue as to any material fact and that the moving party is entitled to a summary judgment as a matter of law. Kafando v. Erie Ceramic Arts Co., 764 A.2d 59, 61 (Pa. Super. 2000) (citing Rush v. Philadelphia Newspapers Inc., 732 A.2d 648, 650-51 (Pa. Super. 1999). The moving party bears the burden of proving the non-existence of any genuine issue of material fact. Kafando, supra. A material fact, for summary judgment purposes, is one that directly affects the outcome of the case. Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000). The non-moving party must adduce sufficient evidence on issues essential to his case on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ertel v. Patriot-News Company, 544 Pa. 93, 674 A.2d 1038 (1996), reargument denied, (1996), certiorari denied, 519 U.S. 1008 (1996). The non-moving party must demonstrate that there is a genuine issue for trial and may not rest on averments in its pleadings. DeSantis v. Frick Company, 745 A.2d 624 (Pa. Super. 1999).

When determining whether to grant a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Hughes v. Seven Springs Farm Inc., 563 Pa. 501, 762 A.2d 339 (2000). Summary judgment is proper only when the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. P.J.S. v. Pennsyl vania State Ethics Commission, 555 Pa. 149, 153, 723 A.2d 174, 176 (1999).

Only when the facts are so clear that reasonable minds camiot differ, a trial court may properly enter summary judgment. Basile v. H&R Block Inc., 563 Pa. 358, 761 A.2d 1115 (2000). If there are no genuine issues of material fact in dispute or if the non-moving party has failed to state a prima facie case, summary judgment may be granted. Dudley v. USX Corporation, 414 Pa. Super. 160, 606 A.2d 916 (1992). Thus, a proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense. Rauch v. Mike-Mayer, 783 A.2d 815 (Pa. Super. 2001). The trial court must confine its inquiry when confronted with a motion for summary judgment to questions of whether material factual disputes exist. Township of Bensalem v. Moore, 152 Pa. Commw. 540, 620 A.2d 76 (1993). It is not the function of the court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Pennsylvania Securities Commission, 134 Pa. Commw. 494, 579 A.2d 1358 (1990).

The sole issue presented to the court in this motion for summary judgment is whether it is proper for the occupants to assert their claims for breach of contract and specific performance as counterclaims to the plaintiff’s ejectment action or if that is an improper collateral attack on a valid sheriff’s sale.

It is well-established that the underlying judgment and sheriff’s sale cannot be attacked in a collateral proceeding. Roberts v. Gibson, 214 Pa. Super. 220, 222, 251 A.2d 799, 800 (1969). An ejectment action is collateral to the proceeding in which the land was sold. Dime Savings Bank FSB v. Greene, 813 A.2d 893, 895 (Pa. Super. 2002) (citing Mencke v. Rosenberg, 202 Pa. 131, 51 A. 767, 769 (1902)). “[Wjhere it is claimed that the underlying default judgment is merely voidable, that claim will not be entertained because such a judgment cannot be reached collaterally.” Id. (citing Roberts v. Gibson, 214 Pa. Super. 220, 251 A.2d 799 (1969)). A void judgment may be attacked in an ejectment action as a void judgment would render the sheriff’s sale a nullity. Id. (citing Brokans v. Melnick, 391 Pa. Super. 21, 569 A.2d 1373, 1376 (1989)). “A sheriff’s sale, in a collateral proceeding such as this was, is open to attack on one or other of two grounds — fraud, or want of authority in the officers making the sale.” Keystone Collieries v. Mudge, 256 Pa. 130, 134, 100 A. 526, 527 (1917) (citing Shields v. Miltenberger, 14 Pa. 76 (1850)).

In the current matter, the plaintiff is correct by stating that the judgment and the sheriff’s sale cannot be collaterally attacked by the occupants’ counterclaims. However, the occupants are not claiming that the underlying judgment was void and they readily admit that the sheriff’s sale was valid. They are claiming that the plaintiff breached an agreement to sell them the property in question when the plaintiff proceeded with the sheriff’s sale. Thus, the counterclaims are not attacking the underlying judgment or the sheriff’s sale. The court must now decide if the counterclaims asserted by the occupants are appropriate in this case.

Pa.R.C.P. 1056 provides that a party may file a counterclaim in an action for ejectment which “arises from the same transaction or occurrence or series of transactions or occurrences from which the cause of action arose.” This rule was analyzed in Hessler v. School Directors of Gamble Township, 79 D.&C. 47 (Lycoming Cty. 1952). In that case, the plaintiff filed an action in ejectment to remove the defendant from a former school house as the defendant relocated the school and no longer used the property to educate students. It must be noted that the conveyance to the defendant required that the tract of land revert back to the plaintiff in the event that the school house was removed. The plaintiff averred that the school house was relocated and the defendant was occupying the property unlawfully. Defendant filed an answer alleging that it still utilized the property for school purposes and filed a counterclaim contending that the plaintiff entered the property unlawfully and destroyed defendant’s blackboards and seats. The plaintiff filed preliminary objections contending that the defendant’s counterclaims violated Pa.R.C.P. 1056.

The Hessler court explained that the plaintiff’s cause of action arose from the defendant’s unlawful occupation of the school house in question; thus, the counterclaim based on the right of possession to the same school house arose from the same transaction or occurrence as the original action in conformance with Pa.R.C.P. 1056. Id., 79 D.&C. at 48. As a result, the court dismissed the plaintiff’s preliminary objections to the defendant’s counterclaim.

In the case sub judice, the occupants’ counterclaims arise from the same transaction or occurrence as the underlying action for ejectment. The occupants are claiming that the plaintiff breached an agreement to sell them the property, which would satisfy the underlying debt that was foreclosed upon prior to the entry of judgment and eventual sheriff’s sale. However, the plaintiff completed the sheriff’s sale, in violation of that alleged agreement. Now, the plaintiff filed this action in ejectment to remove the occupants from the property as a result of the sheriff’s sale. The occupants have filed a counterclaim requesting specific performance to sell them the property in accordance with the terms of the alleged agreement reached prior to the sheriff’s sale. As in Hessler, the occupants’ counterclaims arose from the issue of lawful possession of the property in question and are valid counterclaims in accordance with Pa.R.C.P. 1056.

As a result, there is a genuine issue of material fact regarding lawful possession of the property. It would be premature for the court to declare as a matter of law that the plaintiff is entitled to possession of the property because the occupants still have valid counterclaims that could alter the determination of lawful possession of the property. Therefore, the occupants have articulated a genuine issue of material fact regarding the lawful possession of the property and the court determines that summary judgment is inappropriate at this time.

For the reasons set forth in this opinion, the plaintiff’s motion for summary judgment is denied.

ORDER

Now this November 20, 2009, this case being before the court on October 26, 2009, for oral argument on the motion for summary judgment filed by the plaintiff, with counsel for both parties appearing, the plaintiff, represented through counsel, Robert R Wendt, Esquire and the defendant occupants, Carl D’Augustine and Linda D’Augustine appearing through counsel, Thomas W. Leslie, Esquire and after consideration of the arguments and briefs presented and submitted by counsel and a complete and thorough review of the applicable record, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

(1) In accordance with the attached opinion, the motion for summary judgment filed by the plaintiff is hereby denied.

(2) The prothonotary is directed to serve a copy of this order of court and opinion upon counsel of record, Robert R Wendt, Esquire and Thomas W. Leslie, Esquire.


author: CULLEN, J,

text:
    Crumm v. K. Murphy & Co.

      Richard L. Caplan, for plaintffs.

      C. Kent Price for defendant K. Murphy & Company Inc.

      Dean F. Piermattei, for additional defendant Century Spouting Co. Inc.
    September 16, 2009
   CULLEN, J,

Pending before the court is the motion for partial summary judgment filed by defendant, K. Murphy & Company Inc. In its motion, defendant asserts that the addition to plaintiffs’ amended complaint of a claim for pain and suffering represents a new cause of action for bodily injury after the applicable statute of limitations had run. In the alternative, defendant argues that even if the allegations are not barred by the statute of limitations, damages for pain and suffering are not recoverable in an action for breach of contract and breach of warranty or under the Unfair Trade Practices and Consumer Protection Law (UTP-CPL).

Based on the record before it, the court concludes that the amended complaint alleges anew cause of action for bodily injury which is barred by the two-year statute of limitations. Further, the court finds that defendant is entitled to the relief sought because plaintiffs cannot recover damages for pain and suffering under the circumstances presented. Accordingly, defendant’s motion for partial summary judgment will be granted.

PROCEDURAL AND FACTUAL HISTORY

Plaintiffs, Chadwick L. Crumm and Pamela D. Crumm, initiated this action by filing a praecipe for a writ of summons on March 31, 2005. A complaint was filed on January 24, 2007.

In their complaint, plaintiffs allege that in October 2000, they purchased a building lot encompassing approximately .64 acres from defendant. (Compl. at ¶5.) Plaintiffs also contracted with defendant for the construction of a two-story, 2,800 square foot home with an “in-law suite”. (Id. at ¶7.) According to plaintiffs, the total cost of construction was $320,000. (Id. at ¶¶14-16.)

Construction of the home was completed at the beginning of April 2001 (id. at ¶14), and at that time defendant gave plaintiffs a one-year builder’s limited warranty. In October 2001, plaintiffs obtained a certificate of occupancy for the home. (Id. at ¶¶14-16.)

Plaintiffs claim that the completed residence contained certain deficiencies and that they notified defendant of these deficiencies pursuant to the builder’s limited warranty. (Id. at ¶18.) These deficiencies included a drainage problem and a cracked front door. (Id. at ¶¶19-20.) According to plaintiffs, the drainage problem eventually caused water infiltration, damage to the “in-law suite,” mold spores in the basement, infestation by insects and “major” flooding. {Id. at ¶¶22-32.) By May 2005, the mold toxicity forced plaintiffs to vacate the home. {Id. at ¶47.)

Plaintiffs sought monetary damages based on four causes of action: (1) breach of contract, (2) breach of express warranty, (3) violation of the Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1 et seq., and (4) breach of implied warranties. {Id. at ¶¶51-68.)

On April 3,2007, defendant filed its answer and new matter including the defense of the statute of limitations. On November 30,2007, plaintiffs filed a motion to amend the complaint to which defendant did not respond. The court, therefore, granted the motion as uncontested on January 8, 2008. On April 9, 2008, plaintiffs filed their first amended complaint.

The first amended complaint is virtually identical to the original complaint except for four paragraphs which would be amended. These paragraphs, with amendments emphasized, state:

“(46) In February and March 2005, [plaintiffs] consulted a New York physician, with expertise in toxic mold, seeking an explanation to the cause of a variety of recurring, unexplained illnesses from which family members continued to suffer. Symptoms of these illnesses included, but were not limited to, nosebleeds, migraine headaches, nasal sores, upper respiratory congestion and inflammation, joint pain, temporary muscle weakness and lymph node tenderness. ...
“(48) Thereupon, [plaintiffs] moved into the rental townhouse in Elizabethtown that they currently occupy, and the unexplained illnesses that had plagued them, while they remained resident in the house, gradually disappeared. . ..
“(54) As a proximate consequence of the presence of substantial concentrations of toxic molds in the house, facilitated by the infiltration within the premises of rain and ground water, attributable to [defendant’s] shoddy construction in breach of the contract, [plaintiffs] have incurred damages .. . comprised of... (h) [plaintiffs ’] pain and suffering attributable to the illnesses described in paragraph 46 above. . . .
“(57) As a proximate consequence of [defendant’s breach of an express warranty, plaintiffs] suffered those damages, believed to exceed $300,000 in the aggregate, set forth in paragraph 54 above. ” (Am. compl. at ¶¶46, 48, 54 and 57.) (emphasis in original to indicate amendments to original allegations)

On January 26, 2009, defendant filed its answer with new matter to amended complaint again raising the statute of limitations as a defense.

On March 9,2009, defendant filed its motion for partial summary judgment. Plaintiffs filed a response on April 9, 2009, and thereafter the motion was referred to the court for disposition.

DISCUSSION

Under Rule 1035.2 of the Pennsylvania Rules of Civil Procedure, any party may move for summary judgment as a matter of law. Pa.R.C.P. 1035.2. Specifically, Rule 1035.2 provides:

“Rule 1035.2. Motion
“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2(l)-(2).

The purpose of the summary judgment procedure is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Phaff v. Gerner, 451 Pa. 146, 151, 303 A.2d 826, 829(1973). The court “must ignore controverted facts appearing only in the pleadings” and restrict its consideration to material “filed in support of and in opposition to the motion for summary judgment” and the “uncontroverted” allegations of the pleadings. Id. at 151, 303 A.2d at 830; Washington Federal Savings and Loan Association v. Stein, 357 Pa. Super. 286, 289, 515 A.2d 980, 981 (1986).

Summary judgment will be granted by a trial court “only in those cases in which the record clearly shows that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law.” Wright v. Allied Signal Inc., 963 A.2d 511, 514 (Pa. Super. 2008) (citing Gutteridge v. A.P. Green Services Inc., 804 A.2d 643, 651 (Pa. Super. 2002)); see also, Caro v. Glah, 867 A.2d 531, 533 (Pa. Super. 2004) (citation omitted); Szpynda v. Pyles, 433 Pa. Super. 1, 4-5, 639 A.2d 1181, 1183 (1994). (citation omitted) A grant of summary judgment “is proper only when the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law.” Wright, 963 A.2d at 514. Thus, “only where the facts are so clear that reasonable minds cannot differ, may a trial court properly enter summary judgment.” Id.

In determining whether to grant a motion for summary judgment, a trial court must “view the record in the light most favorable to the non-moving party” and resolve “all doubts as to the existence of a genuine issue of material fact” in his favor. Wright, 963 A.2d at 514; Caro, 867 A.2d at 533; Herr v. Herr, 957 A.2d 1280, 1284 (Pa. Super. 2008). (citation omitted) However, “[wjhen faced with a motion for summary judgment, the non-moving party must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor.” Herr, 957 A.2d at 1284. (emphasis added) If the non-moving party fails to adduce this evidence, then “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id.

Generally, Pennsylvania courts are liberal in granting a party leave to amend pleadings. Frey v. Pennsylvania Electric Company, 414 Pa. Super. 535, 538, 607 A.2d 796, 797 (1992). “Although the determination of whether to grant leave to amend is within the sound discretion of the trial court, leave should be granted at any stage of the proceedings, unless such an amendment violates the law or unfairly prejudices the rights of the opposing party.” Id. Amendments which introduce a new cause of action after the statute of limitations has expired are not permitted. Hodgen v. Summers, 382 Pa. Super. 348, 350, 555 A.2d 214, 215 (1989).

Most actions for breach of contract are governed by a four-year statute of limitations. McGaffic v. City of New Castle, 973 A.2d 1047, 1052 (Pa. Commw. 2009); 42 Pa. C.S. §5525. Generally speaking, the statute of limitations begins to run as soon as the right to institute and maintain the suit arises. Sevast v. Kakouras, 591 Pa. 44, 53, 915 A.2d 1147, 1153 (2007). (citation omitted) In an action for breach of contract, the statute begins to run on the date the action accrues — the date of the breach. McGaffic, 973 A.2d at 1052.

The statute, 42 Pa.C.S. §5524(2), limiting the time in which an action for injuries to the person may be brought is applicable to all actions for recovery for injuries to the person, whether based in contract or tort, because the words of the personal injury statute of limitations are general. Jones v. Boggs & Buhl Inc., 355 Pa. 242, 244-45, 49 A.2d 379, 381 (1946). Section 5524(2) states, “An action to recover damages for injuries to the person ... caused by the wrongful act or... negligence of another [must be commenced within two years].” 42 Pa.C.S. §5524(2).

The application of the two-year limitation cannot be avoided by suing in contract because actions for personal injury must be commenced within two years whether the action sounds in tort or contract. Jones, 355 Pa. at 244-45, 49 A.2d at 381; Bermudez v. Philadelphia Transportation Company, 64 D.&C.2d 462, 463 (Phila. Cty. 1973), aff’d, 228 Pa. Super. 873, 322 A.2d 658 (1974).

For example, an action for breach of an implied warranty of habitability seeking damages for personal injuries sustained by a falling ceiling in an apartment leased from the defendant which was filed more than two years after the incident could not be maintained because the action was barred by the two-year statute of limitations applicable to personal injury actions. Frasier v. Greenblatt, 7 D.&C.3d 779, 781 (Phila. Cty. 1978).

The nature of the relief requested, rather than the form of the pleading, determines which statute of limitations controls a particular action. Ritchey v. Patt, 431 Pa. Super. 219, 221, 636 A.2d 208, 210 (1994) (citing Spack v. Apostolidis, 353 Pa. Super. 362, 368, 510 A.2d 352, 355 (1986) (en banc)). “The two-year statute of limitations contains general language and does not distinguish personal injuries resulting from negligence or contract breaches. Rather, it addresses every suit to recover damages for injury wrongfully due to a person.” Id. (citation omitted)

Defendant argues that the amendments should be dismissed because they allege a new cause of action for bodily injury and are barred by the two-year statute of limitations set forth in 42 Pa.C.S. §5524(2). Plaintiffs contend that the added language is appropriate because it merely amplifies the original allegations and does not allege other acts or conduct beyond what was asserted in the complaint. (PI. mem. of 1. in opp. to def. mot. for partial s.j., at 5.) Further, plaintiffs argue that pain and suffering are consequential damages that are recoverable because they were reasonably foreseeable as arising from defendant’s breach of contract and breach of express and implied warranties. Accordingly, plaintiffs maintain that these new allegations should be governed by the four-year statute of limitations applicable to actions based in contract instead of the two-year statute of limitations for actions based in tort. (Id. at 5-8.)

In form, plaintiffs’ complaint and amended complaint contain the same four “claimfs] for relief” — (1) breach of contract; (2) breach of express warranty; (3) Unfair Trade Practices and Consumer Protection Law, 73 PS. §201-1 et seq.; and (4) breach of implied warranties. In substance, however, paragraphs 46,48, 54 and 57 of the amended complaint allege a new cause of action for personal injuries resulting from defendant’s purported breach of contract. Plaintiffs claim to have suffered “illnesses,” symptoms of which “included, but [were] not limited to, nosebleeds, migraine headaches, nasal sores, upper respiratory congestion and inflammation, joint pain, temporary muscle weakness and lymph node tenderness.” (Am. compl. a^46.) Further, plaintiffs contend that “the unexplained illnesses that had plagued them, while they remained resident in the house, gradually disappeared.” (Id. at ¶48.) According to plaintiffs, their “pain and suffering” is “attributable to the illnesses.” (Id. at ¶54.)

Although this language was added to existing paragraphs in the complaint, the nature of the amendments reflects a cause of action for personal injuries, not breach of contract. Therefore, these amendments form a new cause of action governed by the two-year statute of limitations, 42 Pa.C.S. §5524(2).

A review of the record leads to the inescapable conclusion that this new cause of action is time-barred. Paragraph 46 of the amended complaint indicates that plaintiffs became aware of the nature and cause of their illnesses due to the toxic mold in “February and March 2005” after consulting a New York physician. There is nothing in the record to contradict this assertion, and plaintiffs do not claim that any such evidence exists. To be timely, plaintiffs were required to file their amended complaint no later than February or March 2007. Since the amended complaint was not filed until April 9,2008, the claims for damages for personal injuries will be stricken with prejudice as barred by the two-year statute of limitations.

Although the court has discussed the applicability of the statute of limitations, it is prudent to address the second issue — that is, whether plaintiffs’ claims for damages for personal injuries, including pain and suffering, are properly recoverable as consequential damages in a case alleging breach of contract and breach of warranty. This second issue is often intertwined with questions involving the statute of limitations.

“Consequential damages can be appropriate in a breach of contract case.” Condominium Association Court of Old Swedes v. Stein-O’Brien, 913 A.2d 475, 483 (Pa. Commw. 2009). “[A] party is entitled to recover whatever damages it suffered, provided the damages were such that would naturally and ordinarily result from the breach, or the damages were reasonably foreseeable and within the contemplation of the parties at the time of contracting and can be proved with reasonable certainty.” Id. (citing James Corporation v. North Allegheny School District, 938 A.2d 474, 497 (Pa. Commw. 2007). “Where the consequential damages are ‘foreseeable’ and were contemplated by ‘the parties at the time they made the contract,’ they will be awarded in order to put the victim of the contract breach in the same position as if there had been performance, not breach.” Id. at 483 (citing Ferrer v. Trustees of the University of Pennsylvania, 573 Pa. 310, 341, 815 A.2d 591, 610 (2002)).

In its motion, defendant contends that plaintiffs’ claims for personal injuries are not recoverable under breach of contract and breach of warranty theories nor under the Unfair Trade Practices and Consumer Protection Law. (Def. mot. partial s.j. at ¶¶26-28.) Defendant argues that plaintiffs’ alleged injuries, including pain and suffering, do not constitute a basis to award consequential damages to which plaintiffs would be entitled because “ ‘pain and suffering’ damages were not within the reasonable contemplation of the parties at the time they entered into a contract for the construction of a home.” (Def. br. in supp. of mot. partial s.j. at 8.) (emphasis in original)

Generally speaking, damages for personal injuries, including pain and suffering, are not recoverable in a breach of contract action. Ritchey, 431 Pa. Super. at 221-22, 636 A.2d at 209-10 (1994); Murray v. University of Pennsylvania Hospital, 340 Pa. Super. 401, 407, 490 A.2d 839, 842-43 (1985); see McIntyre ex rel. Howard v. Philadelphia Housing Authority, 816 A.2d 1204, 1209 (Pa. Commw. 2003).

In the present case, the record fails to support the conclusion that the damages sought could reasonably fall within the scope of consequential damages. Damages for personal injuries arising from an alleged exposure to toxic mold are not such that would naturally and ordinarily arise from a breach of contract to construct a home nor is there any evidence that these damages were reasonably foreseeable and within the contemplation of the parties at the time the contract was formed. Plaintiffs have not pointed to any language in the contract documents which would support such a finding, nor have they cited any other evidence in the record which would lead to this conclusion. For example, there is no showing that plaintiffs ever discussed this possibility with defendant or that defendant had any prior experience with toxic mold in residential construction.

Comment a to section 3 51 of the Restatement (Second) of Contracts provides in pertinent part:

“(a) Requirement of foreseeability. A contracting party is generally expected to take account of those risks that are foreseeable at the time he makes the contract. He is not, however, liable in the event of breach for loss that he did not at the time of contracting have reason to foresee as a probable result of such a breach. The mere circumstance that some loss was foreseeable, or even that some loss of the same general kind was foreseeable, will not suffice if the loss that actually occurred was not foreseeable. It is enough, however, that the loss was foreseeable as a probable, as distinguished from a necessary, result of his breach. Furthermore, the party in breach need not have made a ‘tacit agreement’ to be liable for the loss. Nor must he have had the loss in mind when making the contract, for the test is an objective one based on what he had reason to foresee. There is no requirement of foreseeability with respect to the injured party. In spite of these qualifications, the requirement of foreseeability is a more severe limitation of liability than is the requirement of substantial or ‘proximate’ cause in the case of an action in tort or for breach of warranty....” Restatement (Second) of Contracts §351 cmt. a (1981).

Since there is nothing in the record to support the position that the claimed damages for personal injuries, including pain and suffering, were foreseeable as a probable result of a breach of contract, defendant is entitled to judgment in its favor.

Plaintiffs also cannot recover damages for pain and suffering under the Unfair Trade Practices and Consumer Protection Law.

“Any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss ofmoney or property, real or personal, as a result of the use or employment by any person of a method, act or practice declared unlawful by section 3 of the Act, may bring a private action to recover actual damages or $100, whichever is greater.” 73 P.S. §201-9.2(a). (emphasis added)

Analogous to damages for emotional distress, recovery for pain and suffering is not permitted under the UTP-CPL as it does not fall within the express limitations of the statute which recognizes as actual damages only “any ascertainable loss of money or property ... .” See In re Bryant, 111 B.R. 474, 479-80 (E.D. Pa. 1990) (limiting damages to the express language of section 201-9.2 and excluding recovery for emotional distress as a result).

For the reasons set forth above, no genuine issue of material fact exists and defendant is entitled to judgment as a matter of law. Accordingly, the motion for partial summary judgment will be granted.

ORDER

And now, September 16,2009, upon consideration of defendant’s motion for partial summary judgment, and plaintiffs’ response, it is ordered that defendant’s motion for partial summary judgment is granted.

      . In the interim, on December 10,2007, defendant joined Century Spouting Co. Inc. as an additional defendant.

      . Plaintiffs’ motion to amend the complaint was filed on November 30,2007. Even ifthis date is used for purposes ofthe statute of limitations, the amended complaint is still untimely.

      . If otherwise proper, evidence of these illnesses may be admissible, not for the purpose of recovering monetary damages, but to establish the existence of the toxic mold and the reason plaintiffs vacated the property. Such a determination cannot be made until the time of trial.

      . Plaintiffs cite North German Lloyd Steamship Co. v. Wood, 18 Pa. Super. 488 (1901), for the blanket proposition that pain and suffering damages are recoverable in a breach of contract action. (PI. mem. of 1. in opp. to def. mot. partial s.j., at 7.) However, Wood simply represents a case in which the court found that damages for mental suffering were warranted as foreseeable consequential damages.
      “[Specifically, the defendant] distinctly alleg[ed] that the stateroom which the plaintiff company compelled [the defendant] to occupy was most uncomfortable, that the motion there was very great and the rattle of the machinery there was such as to prevent her from sleeping; and that in consequence of the discomforts of the room and the disturbance occasioned by the movement and noise of the machinery, [the] defendant was able to sleep but very little during the entire voyage, and in consequence suffered nervous sickness, causing her much pain and suffering, which continued during the entire voyage and after her arrival in the country.” Wood, 18 Pa. Super. at 491.
      The court concluded that such damages may be recoverable as consequential damages with regard to the facts of Wood, stating that “[w]e cannot say that the loss of sleep would not be the reasonable and probable consequence, with the ordinary person, of being compelled to remain in a noisy stateroom.” Id. (emphasis added) In short, the defendant “sufficiently allege[d] a physical injury directly resulting from the plaintiff’s breach of contract, and which was a reasonable and probable consequence of such breach.” Id. (emphasis added)
      This court notes that Wood has never been cited for the general proposition, as plaintiffs posit, that pain and suffering damages are recoverable in a breach of contract action.