text:
    Dunbar v. Rivello

      C.P. of Lackawanna County,
    No. 13 CV 3052

      Michael G. Gallacher, for plaintiffs.

      Nicholas E. Fick, for defendant.
    November 4, 2013
   NEALON, J.,

In the latest legal dispute between Old Forge developers of residential townhouse units and a neighbor who resides near that development, the developers have presented a petition seeking to enjoin the neighbor from trespassing upon the development property, from having any contact with the developers, their employees, current tenants, and prospective tenants or purchasers, and from “stalking and/ or photographing” any of those same individuals. Based upon the credible evidence introduced during the three evidentiary hearings, the neighbor will be enjoined from entering the development property, unless such entry is in response to an express invitation by a townhouse tenant. Defendant will also be prohibited from communicating with the developers and their employees, but only to the extent that such contact constitutes terroristic threats, 18 Pa.C.S.A. §2706(a), harassment, 18 Pa.C.S.A. §2709(a), or stalking by communication, 18Pa.C.S.A. §2709.1(a)(2). Additionally, defendant will be enjoined from “stalking” the developers and their employees, as that term is defined in 18 Pa.C.S.A. §2709.1(a)(l). In all other respects, the petition for injunctive relief will be denied, including the requests to bar defendant “from having any contact” or “speaking to” any current tenants, prospective tenants or prospective purchasers of the townhouse units, and to prohibit defendant from photographing the developers, their employees, existing tenants, and prospective tenants or purchasers.

I. PROCEDURAL HISTORY

On June 12,2013, plaintiffs, George Dunbar (“Dunbar”) and Lilac Meadows, Inc. (“Lilac Meadows”), filed a complaint against defendant, Joseph Rivello (“Rivello”), charging him with making “false” and “malicious” statements about Lilac Meadows’ land development project during Old Forge Borough Council meetings, (Docket entry no. 1 at ¶¶7-11, 14-15, 26), trespassing on Lilac Meadows’ property, (Id. at ¶¶19-25), harassing and photographing Dunbar’s employees working at Lilac Meadows’ construction site, (Id. at ¶¶13, 16-17), and threatening “the physical and personal safety” of Dunbar. (Id. at ¶18). Dunbar and Lilac Meadows have averred that Rivello “is now seeking to prevent the release to the plaintiffs of almost thirty thousand dollars ($30,000.00) in bond money [by] falsely claiming that the Plaintiffs have violated zoning regulations, construction plans and directives of the Old Forge Borough Council.” (Id. at ¶27). Dunbar and Lilac Meadows further contend that the “statements and actions by [Rivello] are causing harm and damage to the reputation of plaintiff, George Dunbar, who is a well respected business man in the community,” and, therefore, “must be enjoined.” (Id. at ¶¶28-29).

Dunbar and Lilac Meadows also filed a “Petition for Emergency Injunctive Relief’ and secured a Rule to Show Cause which was made returnable for an answer by Rivello on July 5, 2013, with an evidentiary hearing to be held on July 22, 2013. (Docket entry no. 2). Rivello filed an answer and amended answer to the petition for injunctive relief on June 19, 2013, and July 3, 2013. (Docket Entry nos. 5-6). Hearings were conducted on July 22, 2013, August 15, 2013, and September 12, 2013, at which time testimony was received from Dunbar, Eric Vandermark, Officer David Kimble, Officer Jason Dubemas, Rivello and Harold Ash. (Docket entry nos. 9, 11-12). The parties thereafter submitted letter briefs dated September 16, 2013, September 25, 2013, and October 3, 2013. (Docket entry nos. 15-17).

The first twenty-nine paragraphs of the “Petition for Emergency Injunctive Relief’ are identical to the twenty-nine averments contained in the complaint. (Docket entry no. 1 at ¶¶1-29; Docket entry no. 2 at ¶¶1-29). The petition also sets forth the criteria for the issuance of an injunction. (Docket entry no. 2 atfl30-34). In their prayer for relief, Dunbar and Lilac Meadows seek to enjoin Rivello “from entering onto the Plaintiffs’ property for any reason,” “from having any contact with or speaking to the Plaintiffs, Plaintiffs’ employees, and/or Plaintiffs’ tenants, prospective tenants, and prospective purchasers,” “from stalking and/or photographing the Plaintiffs, Plaintiffs’ employees, and/or Plaintiffs’ tenants, prospective tenants, and prospective purchasers,” and “from speaking to anyone regarding the [Lilac Meadows] development.” (Docket entry no. 2 at p.7). At the time of the third evidentiary hearing on September 12, 2013, Dunbar and Lilac Meadows withdrew their request to enjoin Rivello from speaking to anyone concerning the Lilac Meadows development project on Edith Street.

When considering requests for injunctive relief, the trial judge acts as the factfinder and makes credibility determinations in resolving any conflicts in the evidence presented. See Shepherd v. Pittsburgh Glass Works, LLC, 25 A.3d 1233, 1245 (Pa. Super. 2011); Hunter v. Bowman, 159 Pa. Cmwlth. 222, 225-226, 633 A.2d 655, 656 (1993). As the factfinder who personally heard the witnesses testify, the trial judge is “in the sole position to observe the demeanor of the witnesses and assess their credibility.” Hirsch v. EPL Technologies, Inc., 910 A.2d 84, 88 (Pa. Super. 2006), app. denied, 591 Pa. 727, 920 A.2d 833 (2007). As a result, the trial judge “may believe all, part or none of the evidence presented.” Ruthrauff, Inc. v. Ravin, Inc., 914 A.2d 880, 888 (Pa. Super. 2006), app. denied, 599 Pa. 711, 962 A.2d 1197 (2008); Rizzo v. MSA, Inc., 18 Pa. D. & C. 5th 233, 245 (Lacka. Co. 2010), aff’d, 32 A.3d 830 (Pa. Super. 2011). The factual findings set forth in Section II below are based upon the evidence which has been deemed to be competent, credible and relevant.

II. FINDINGS OF FACT

Dunbar is the sole owner and principal of Lilac Meadows, which is engaged in the business of developing and constructing rental properties. In 2010, Dunbar was exploring the possibility of purchasing property on Edith Street in the Borough of Old Forge as a potential site for Lilac Meadows’ construction of new townhouse units. Prior to purchasing that land, Dunbar visited the Edith Street property in early September 2010, and reviewed the prepared construction plans at that location. While Dunbar was present at the Edith Street site, a nearby neighbor, Rivello, entered the property and voiced objections to Dunbar regarding his proposed purchase of the Edith Street property and intended construction of townhouse units there. The verbal exchange became heated and culminated with Dunbar demanding that Rivello leave the property.

On September 20, 2010, Dunbar’s counsel forwarded a letter to Rivello stating that Rivello had “repeatedly approached [Dunbar] with regard to ‘objections’ to his proposed project,” and had “been aggressive and threatening” to Dunbar. Dunbar’s counsel informed Rivello that Dunbar was “purchasing a project which was approved years ago by the [Old Forge] Borough Planning Commission and Borough Council,” and that Rivello “had ample opportunity at that time to voice [his] objections or complaints.” Dunbar’s counsel admonished Rivello to “cease approaching my client in a threatening manner,” and stated that “if this conduct does not immediately cease, [Dunbar] will take any and all actions necessary and appropriate under the law to protect himself and his project.”

On September 28,2010, Lilac Meadows purchased the Edith Street land together with the land development plans which had been approved previously by the Pennsylvania Department of Environmental Protection, the Lower Lackawanna Valley Sanitary Authority, the Old Forge Zoning Board, the Old Forge Planning Commission, and the Old Forge Borough Council. Upon purchasing the Edith Street property, Dunbar posted it with no trespassing signs. Shortly thereafter, Rivello and his sister, Virginia Panko (“Panko”), began appearing at Old Forge Borough Council meetings and making statements critical of Dunbar and the Lilac Meadows project. Rivello also appeared at the Edith Street construction site on a daily basis, photographed Dunbar’s construction workers, and heckled them about their work. According to Eric Vandermark, Rivello stalks the construction workers on the project, constantly criticizes their work product, and incessantly accuses them of faulty workmanship and violations of the pre-approved development plans.

On November 11, 2010, the interaction between Dunbar’s workers and Rivello became so hostile that the Old Forge Police were summoned to quell a “neighbor dispute.” Upon completing his investigation, Office David Kimble informed Rivello that he was “to stay away from Mr. Dunbar’s property and his workers,” and Rivello “agreed to do so.” (Plaintiffs’ Exhibit G at p. 3 of 3). However, on March 16, 2011, Rivello again trespassed upon Lilac Meadows’ property and was issued a criminal citation by the Old Forge Police Department for defiant trespass. (Plaintiffs’ Exhibit I). Once the criminal trespass charge was filed, Rivello’s visits to Lilac Meadows’ property and his contact with Dunbar and his workers ceased.

During a subsequent hearing in Com. v. Rivello, MJ-45101-NT-069-2011 (Lacka. Co.), Magisterial District Judge James A. Gibbons directed that, in exchange for Rivello’s agreement to avoid Dunbar and refrain from trespassing on Lilac Meadows’ property, the defiant trespass charge would be dismissed. Rivello admitted under oath, during his discovery deposition in Lilac Meadows, Inc. v. Rivello, No. 11 CV 4375 (Lacka. Co.), that Magisterial District Judge Gibbons had specifically instructed him to “stay away from [Dunbar] and his property.” Notwithstanding that fact, once the criminal trespass charge was dismissed on May 3, 2011, Rivello’s disruptive actions towards Dunbar and his construction workers resumed.

On July 20, 2011, Lilac Meadows filed a defamation suit against Rivello and his sister, Panko, based upon verbal statements that they made about the Lilac Meadows Township project during Old Forge Borough Council meetings. See Lilac Meadows, Inc. v. Rivello, 25 Pa. D.& C. 5th 250, 252-257 (Lacka. Co. 2012). After that slander action was instituted, Rivello’s public comments concerning Lilac Meadows’ project and his daily actions at the construction site once again abated. On April 5, 2012, the undersigned sustained Rivello’s demurrer to Lilac Meadows’ slander claim on the grounds that Rivello’s comments lacked the requisite defamatoiy character, and that Lilac Meadows had not asserted a commercial disparagement or trade libel claim against Rivello for making false and malicious representations regarding the title or quality of Lilac Meadows’ interest in property. Id. at 270-274. However, inasmuch as Panko had “suggested] that Lilac Meadows was involved in some form of corruption in conjunction with the land development project,” her preliminary objections were overruled. Id. at 272, 274.

Following the dismissal of Lilac Meadows’ slander claim against Rivello, Rivello’s belligerent behavior towards Dunbar and his workers resumed. On June 26, 2012, Rivello was observed on Lilac Meadows’ Edith Street property, and the Old Forge Police Department was contacted to investigate another defiant trespass charge against Rivello. (Plaintiffs’ Exhibit H). A Lilac Meadows townhouse tenant advised Officer Jason Dubemas that Rivello had entered the tenant’s driveway and spoken with him, albeit without an invitation from the tenant to enter Lilac Meadows’ land. (Id. at p. 4 of 4). After speaking with Officer Kimble and Magisterial District Judge Gibbons, Officer Dubemas contacted the Lackawanna County District Attorney’s Office and was advised that charges would be filed against Rivello for criminal trespass. (Id.).

On July 11, 2012, criminal charges were filed against Rivello and were later bound over for trial following a preliminary hearing on September 18, 2012. See Com. v. Rivello, No. CP-35-CR-02159-2012 (Lacka. Co.) At the conclusion of a subsequent non-jury trial on February 27, 2013, Judge Vito P. Geroulo sustained Rivello’s demurrer and dismissed the criminal trespass charge. See Com. v. Rivello, No. 12 CR 2159, Geroulo, J. (Lacka. Co. Feb. 27, 2013). Additionally, on May 20, 2013, Lilac Meadows’ slander suit against Panko was discontinued with prejudice after Panko’s liability insurer made a settlement payment to Lilac Meadows.

After the dismissal of Rivello’s criminal charge and Panlco’s settlement of the defamation action, Rivello’s combative and hostile actions toward Dunbar and his workers resumed. Rivello’s harassing conduct reportedly included constant pacing along the Edith Street property, glaring at Dunbar and his workers, photographing Dunbar’s workers, and making obnoxious comments at them. Once Dunbar and Lilac Meadows commenced this injunction proceeding against Rivello on June 12, 2013, all such statements and actions halted.

In their post-hearing submission, Dunbar and Lilac Meadows maintain that Dunbar and his workers are still required to travel to the Lilac Meadows property “on a regular basis even though the construction is complete,” and that Rivello “continues to harass, intimidate and threaten the Plaintiffs and their employees.” (Docket entry no. 16 at p. 3). Dunbar and Lilac Meadows contend that “[t]he fact that [Rivello] was not convicted has emboldened him to continue his improper conduct and to push it even further.” (Id. at p. 4). They submit that they are entitled to their requested injunctive relief since “[t] he First Amendment does not allow a citizen to threaten, harass and intimidate another citizen under the guise of free speech.” (Id.).

Rivello counters that with the exception of his appearance at an Old Forge Borough Council meeting on May 7, 2013, all other issues raised in support of the petition for injunctive relief “were previously litigated and decided” in Rivello’s favor. (Docket entry no. 15 at p. 2). Rivello asserts that Old Forge Borough’s engineering consultant, Harold Ash, suggested to Rivello at a Borough Council meeting that he should photograph any water runoff problems that Rivello contended were caused by the Lilac Meadows project. Rivello posits that he merely “went to a Borough Council meeting on May 7, 2013, to express concerns about a pave cut on Edith Street which sunk and was now directing water runoff towards his property,” and “took photographs as directed by Borough Council and a representative of the Borough Engineer. (Id. at pp. 1, 3). He argues that Dunbar and Lilac Meadows “are simply attempting to exact financial punishment on Mr. Rivello for asking questions about the project” and “to squash his First Amendment rights to attend a public meeting and voice his concerns.” (Id. atp. 2). Rivello avers that the requested injunctive relief should be denied since “there is no immediate and irreparable harm to prevent.” (Docket entry no. 17 atp. 1).

Dunbar and Lilac Meadows seek to bar Rivello from entering their property “for any reason,” to enjoin him from contacting or speaking to Dunbar, his employees, tenants and prospective tenants or purchasers, and to preclude Rivello from stalking or photographing those same individuals. (Docket entry no. 2 at p. 7). Although the parties’ post-hearing submissions cite the criteria for the issuance of an injunction under Pennsylvania law, they do not provide any decisional authority addressing the propriety of an injunction enjoining the type of conduct that Dunbar and Lilac Meadows seek to prohibit. The three categories of requested injunctive relief will be addressed in the order in which they were presented.

III. DISCUSSION

(A) STANDARD OF REVIEW

The complaint and petition filed by Dunbar and Lilac Meadows seek the issuance of a permanent injunction rather than a temporary injunction. (Docket entry no. 1 at pp. 6-7; Docket entry no. 2 at pp. 7-8). An injunction “is a court order that prohibits or commands virtually any type of action.” Woodward Township v. Zerbe, 6 A.3d 651, 658 (Pa. Cmwlth. 2010); Gates v. Ransom Township, 2010 WL 4974415, at * 3 (Lacka. Co. 2010). “It is an extraordinary remedy that should be issued with caution.” Big Bass Lake Community Association v. Warren, 950 A.2d 1137, 1144 (Pa. Cmwlth. 2008).

The elements necessary to establish entitlement to a preliminary injunction are: (1) immediate and irreparable harm in the absence of an injunction; (2) greater injury will result from refusing an injunction than from granting it; (3) an injunction will restore the parties to the status quo that existed immediately prior to the wrongful conduct; (4) the proponent’s right to relief is clear; (5) the injunction is reasonably suited to abate the offending activity; and (6) the preliminary injunction will not adversely affect the public interest. Wyland v. West Shore School District, 52 A.3d 572, 582 (Pa. Cmwlth. 2012); American Homecare Supply Mid-Atlantic, LLC v. Gannon, 10 Pa. D. & C.5th 362, 375 (Lacka. Co. 2009). To secure permanent injunctive relief, the proponent must establish: (1) a clear right to relief; (2) an urgent necessity to avoid an injury which cannot be compensated in damages; and (3) that greater injury will result from refusing, rather than granting, the injunctive relief request. Woodward Township, supra\ Gates, supra. Thus, unlike a claim for a preliminary injunction, the party seeking a permanent injunction “need not establish either irreparable harm or immediate relief.” Board of Revision of Taxes, City of Philadelphia v. City of Philadelphia, 607 Pa. 104, 133, 4 A.3d 610, 627 (2010); Com. v. TAP Pharmaceutical Products, Inc., 36 A.3d 1197, 1221 (Pa. Cmwlth. 2011). “Rather, the plaintiff must show that an actual and substantial injury has occurred and/or is threatened in the future. WellSpan Health v. Bayliss, 869 A.2d 990, 995 (Pa. Super. 2005).

To demonstrate that its right to relief is clear, the plaintiff “must show that it is likely to prevail on the merits.” Duquesne Light Company v. Longvue Club, 63 A.3d 270, 275 (Pa. Super. 2013). “For a right to relief to be clear, it must be more than merely ‘viable’ or ‘plausible.’” Ambrogi v. Reber, 932 A.2d 969, 980 (Pa. Super. 2007), app. denied, 597 Pa. 725, 952 A.2d 673 (2008). Moreover, “[e]ven where the essential prerequisites of an injunction are satisfied, the court must narrowly tailor its remedy to abate the injury.” Woodward Township, supra (citing Big Bass Lake Community Association, 950 A.2d at 1144-1145).

(B) DEFENDANT’S ENTRY UPON PLAINTIFFS’ PROPERTY

Dunbar and Lilac Meadows first seek to enjoin Rivello “from entering onto the Plaintiffs’ property for any reason.” (Docket entry no. 2 at p. 7). It is well settled that a court has the authority to permanently enjoin a party from entering or otherwise interfering with the use of another’s land. See Gunther v. Bolus, 853 A.2d 1014, 1017 (Pa. Super. 2004), app. denied, 578 Pa. 709, 853 A.2d 362 (2004); Phillippi v. Knotter, 748 A.2d 757, 758 (Pa. Super. 2000), app. denied, 563 Pa. 689, 760 A.2d 855 (2000). Such an injunction will issue where the party seeking to enjoin a trespass upon real property has a clear right to the property in question. Sprankle v. Burns, 450 Pa. Super. 319, 323, 675 A.2d 1287, 1289 (1996), app. denied, 546 Pa. 683, 686 A.2d 1312 (1996); King v. Rock, 415 Pa. Super. 605, 608, 610 A.2d 48, 49 (1992). “The fact that a plaintiff has a remedy in a trespass cause of action does not rule out the availability of injunctive relief.” Big Bass Lake Community Association, 950 A.2d at 1146 n. 13 (citing Ochroch v. Kia-Noury, 345 Pa. Super. 161, 165, 497 A.2d 1354, 1356 (1985)).

There is no dispute that the Edith Street property, where Lilac Meadows’ townhouse units are located, is owned by Dunbar or Lilac Meadows. The credible evidence established that although Rivello has temporarily halted his trespass onto that land since this suit was filed on June 12, 2013, he has repeatedly entered that land in the past notwithstanding warnings from Dunbar, the Old Forge Police Department and Dunbar’s counsel, and the clear directive from Magisterial District Judge Gibbons. “Our Supreme Court has continually held that equity is available to a landowner who suffers trespasses of a continuing nature,” and that a trial court “possesses jurisdiction to enjoin repeated trespasses on land, as well as to enjoin a nuisance.” Jones v. Wagner, 425 Pa. Super. 102, 111, 624 A.2d 166, 170 (1993), app. denied, 536 Pa. 626, 637 A.2d 286 (1993).

Based upon the credible evidence introduced during the hearings, Dunbar and Lilac Meadows are likely to prevail on the merits of a civil trespass claim. However, Dunbar and Lilac Meadows seek to bar Rivello from entering the Edith Street property “for any reason.” It is conceivable that a tenant of Lilac Meadows may invite Rivello into a townhouse unit or onto Lilac Meadows’ grounds for social purposes. Section 504-A of the Landlord and Tenant Act of 1951 states that “[t]he tenant also shall have the right to invite to his apartment or dwelling unit, for a reasonable period of time, such social guest, family or visitors as he wishes so long as his obligations as a tenant under this article are observed.” 68 P.S. §250.504-A. The appellate courts in Pennsylvania have construed that statutoiy provision as granting tenants a protected right to invite social guests to their apartments. See Branish v. NHP Property Management, Inc., 694 A.2d 1106, 1107 (Pa. Super. 1997).

Therefore, an injunction barring Rivello from entering the Edith Street property “for any reason” would be overly broad and violative of 68 P.S. §250.504-A. In the absence of a social invitation from a tenant of Lilac Meadows, Rivello has no right to enter any Lilac Meadows property, and he will be permanently enjoined from doing so. Consequently, the request for injunctive relief will be more narrowly tailored to permanently enjoin Rivello from entering Lilac Meadows’ property, except pursuant to an express invitation from a Lilac Meadows tenant.

(C) DEFENDANT’S CONTACT WITH PLAINTIFFS, THEIR EMPLOYEES, TENANTS AND PROSPECTIVE TENANTS AND PURCHASERS

Dunbar and Lilac Meadows next seek to enjoin Rivello “from having any contact with and/or speaking to” them, their employees, tenants, and prospective tenants and purchasers. It is firmly established in this Commonwealth that an injunction “decree should be as definite, clear, and precise in its terms as possible, so that there may be no reason or excuse for misunderstanding or disobeying it; and, when practicable, it should plainly indicate to the defendant all of the acts which he is restrained from doing, without calling upon him for inferences or conclusions about which persons may well differ.” Apple Storage Co. v. Consumer’s Education and Protective Association, 441 Pa. 309, 315, 272 A.2d 496, 499 (1971) (quoting Collins v. Wayne Ironworks, 227 Pa. 326, 330, 76 A.24, 25 (1910)); George F. Mayer & Son v. Com., Department of Environmental Resources, 18 Pa. Cmwlth. 85, 88, 334 A.2d 313, 315 (1975) (same). The scope of the requested injunction, which seeks to bar “any contact” with identified and unidentified individuals, is problematic in that regard.

There may be instances where an order is sufficiently definite, clear and precise in proscribing contact with a particular person or group of individuals. For example, the Protection from Abuse (“PFA”) Act, 23 Pa.C.S. §§6101-6122, provides for the issuance of orders prohibiting an abusive defendant’s “contact” with a victim who is a person “related by affinity.” See, e.g., Com. v. Walsh, 36 A.3d 613, 619 (Pa. Super. 2012). Similarly, a former employee who executed a non-competition agreement may be banned from contacting certain customers or clients of an ex-employer for a finite period of time. See, e.g., American Homecare Supply, 10 Pa. D.& C. 5th at 389-392. Additionally, protesters who engage in “threatening, intimidating or harassing” conduct towards specific parties may be subject to a content-neutral prohibition against such unlawful activity. See, e.g, SmithKline Beecham Corp. v. Stop Huntingdon Animal Cruelty, USA, 959 A.2d 352, 356-357 (Pa. Super. 2008).

Absent a statutory or contractual basis for banning any contact or communication with a specific person, an injunction prohibiting an individual “from having any contact with” or ever “speaking to” certain people, which presumably includes communication in a lawful manner, is too vague and impermissibly broad, and as worded, fails to properly advise that person of the specific “acts which he is restrained from doing, without calling upon him for inferences or conclusions about which persons may well differ.” See Apple Storage Co., supra. There may be occasions in which Rivello unexpectedly encounters Dunbar or one of his employees in a public setting, and in the process, makes a statement that is not threatening, harassing or defamatory. So long as Rivello is not present on Dunbar’s property as an uninvited guest at that time, a blanket prohibition against such lawful “contact” would overly burden Rivello’s First Amendment free speech rights. See SmithKline v. Beecham Corp., 959 A.2d at 359 (injunction prohibiting all protesting at pharmaceutical corporation’s facilities impermissibly burdened animal rights protesters’ free speech rights since “an outright ban is overbroad.”). Compare Sansom House Enterprises v. Waiters & Waitresses Union, Local 301, 382 Pa. 476, 480, 115 A.2d 746, 748 (1955) (“There is no question but that, where picketing is for an unlawful purpose, it is no longer protected as an exercise of the right of free speech and may property be enjoined.”).

Rivello may be enjoined from “communicating” with Dunbar and his employees to the extent that such communication constitutes terroristic threats, harassment or stalking under the Crimes Code. While courts generally will not enjoin the commission of a crime for the sole purpose of enforcing the criminal law, see Everett v. Harron, 380 Pa. 123, 129, 110 A.2d 383, 386 (1955), an injunction may be issued if the plaintiff “has shown that the wrongdoer’s acts, in addition to violating the criminal law, are also interfering with that individual plaintiffs property rights, [citation omitted], or with that individual plaintiff’s personal or civil rights.” Pennsylvania Society for Prevention of Cruelty to Animals v. Bravo Enterprises, Inc., 428 Pa. 350, 359, 237 A.2d 342, 347-348 (1968). Thus, inasmuch as the credible evidence indicates that Rivello has intentionally and repeatedly harassed, annoyed, alarmed and seriously inconvenienced Dunbar and his workers, Rivello will be restrained from engaging in any contact or communication with Dunbar and his employees which constitutes terroristic threats, harassment or stalking under 18 Pa.C.S.A. §§2706(a), 2709(a) or 2709.1(a), since such unlawful conduct also interferes with their individual rights

However, Lilac Meadows’ tenants have the statutory right to communicate and socialize with Rivello and to invite him to their townhouses, see 68 RS. §250.504-A, and they are entitled to decide whether they wish to have contact with Rivello. Although the record contains credible proof that Rivello has arguably harassed or intimidated Dunbar’s employees, it is devoid of any evidence that Rivello has acted similarly towards any Lilac Meadows tenants or purchasers. Furthermore, a “contact” prohibition with regard to “prospective” tenants and purchasers is far too ambiguous and lacks the requisite precision for clear enforcement. See TAP Pharmaceuticals Products, 36 A.3d at 1232 (stating that an injunction “decree should be as definite, clear and precise in its terms as possible.”). Hence, the request to enjoin Rivello from contacting or speaking to the existing tenants and prospective tenants or purchasers will be denied.

(D) DEFENDANT’S STALKING OR PHOTOGRAPHING OF PLAINTIFFS, THEIR EMPLOYEES, TENANTS AND PROSPECTIVE TENANTS AND PURCHASERS

In their final request for injunctive relief, Dunbar and Lilac Meadows seekto enjoin Rivello “from stalking and/or photographing” them, their employees, current tenants, and prospective tenants and purchasers. In addition to stalking by communication, as discussed in Section III(C) above, a person commits the crime of stalking when [s]he “engages in a course of conduct or repeatedly commits acts towards another person, including following the person without proper authority, under circumstances which demonstrate either an intent to place such other person in reasonable fear of bodily injury or to cause substantial emotional distress to such person.” 18 Pa.C.S.A. §2709.1(a)(l). The petitioners presented credible evidence demonstrating that Rivello has repeatedly followed Dunbar and his employees while they were present on Lilac Meadows’ property under circumstances which suggest an intent to cause emotional distress to them. Since any such stalking interferes with the personal rights of Dunbar and his employees, Rivello will be enjoined from engaging in conduct toward them which constitutes stalking under 18 Pa.C.S.A. §2709.1(a)(1). See Pennsylvania Society for Prevention of Cruelty to Animals, supra. However, in the absence of any proof of comparable conduct towards Lilac Meadows’ tenants, there is no evidentiary basis for extending that proscription to the existing tenants or prospective tenants and purchasers of Lilac Meadows.

Dunbar and Lilac Meadows also request a blanket prohibition barring Rivello from photographing them, their employees, existing tenants, and prospective tenants and purchasers in any setting. The Superior Court of Pennsylvania “has held that ‘courts of this Commonwealth can enjoin activity which violates an individual’s residential privacy.’” SmithKline Beecham Corp., 959 A.2d at 357 (quoting Klebanoff v. McMonagle, 380 Pa. Super. 545, 547, 552 A.2d 677, 678 (1988), app. denied, 522 Pa. 620, 563 A.2d 888 (1989)). A court may also enjoin a defendant from photographing an individual, provided that such activity creates civil liability on the part of the defendant for invasion of privacy. See, e.g., Crozer-Chester Medical Center v. May, 366 Pa. Super. 265, 269, 531 A.2d 2, 5 (1987) (protesters held in contempt for violating injunction barring them “[f]rom photographing or attempting to photograph any staff member, employee, patient, business invitee or guests” of reproductive health and counseling center “while such person is upon, entering or leaving” that center), app. dismissed, 520 Pa. 62, 550 A.2d 196 (1988).

‘”It is well established in Pennsylvania that a violation of the right of privacy is an actionable tort.’” Tagouma v. Investigative Consultant Services, Inc., 4 A.3d 170, 174 (Pa. Super. 2010) (quoting Harris by Harris v. Easton Pub. Co., 353 Pa. Super. 141, 152, 483 A.2d 1377, 1383 (1984)). Our tort law in this Commonwealth “recognize[s] a right to privacy that is not constitutionally based.” Moses v. McWilliams, 379 Pa. Super. 150, 159, 549 A.2d 950, 954 (1988), app. denied, 521 Pa. 631, 558 A.2d 532 (1989). Invasion of privacy involves four separate torts, but only the tort of unreasonable intrusion upon the seclusion of another is conceivably applicable in this case. See Doe v. Wyoming Valley Health Care System, Inc., 987 A.2d 758, 765 (Pa. Super. 2009).

Although the Supreme Court of Pennsylvania has not officially adopted Section 652B of the Restatement (Second) of Torts, it has relied upon Section 652B in analyzing the merits of “intrusion upon seclusion” claims. Tagouma, supra; Reinhold v. County of York, 2012 WL 4104793, at * 18 n. 23 (M.D. Pa. 2012). In addition, the Superior Court has stated “that the Restatement most ably defines the elements of invasion of privacy as that tort has developed in Pennsylvania.” Burger v. Blair Medical Associates, Inc., 928 A.2d 246, 250 (Pa. Super. 2007), aff’d, 600 Pa. 194, 964 A.2d 374 (2009). Section 652B of the Restatement is entitled “Intrusion upon Seclusion,” and provides:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

Tagouma, supra (quoting Restatement (Second) of Torts §652B).

To prevail on a claim for “intrusion upon seclusion,” a plaintiff must show that (1) there was an intentional intrusion, (2) upon plaintiff’s solitude or seclusion, or plaintiff’s private affairs or concerns, and (3) the intrusion was substantial and highly offensive. Reinhold, supra, at * 18; Rudder v. Pequea Valley School District, 790 F. Supp. 2d 377, 404 (E.D. Pa. 2011). Consequently, “there is no liability ‘for observing or even taking a photograph while a person is walking on the public highway, since he is not then in seclusion, and his appearance is public and open to the public eye.’” Tagouma, 4 A.3d at 174 (quoting Restatement (Second) of Torts §652B, Comment c). “Comment c underscores the traditional rule that watching or observing a person in a public place, or taking a photograph of a person who can be observed from a public vantage point, is not generally an invasion of privacy.” Wolfson v. Lewis, 924 F. Supp. 413, 420 (E.D. Pa. 1996). Accord, Tagouma, 4 A.3d at 177-178 (surveillance company hired by workers’ compensation carrier to perform videotape surveillance of plaintiff was not liable for invasion of privacy for videotaping plaintiff while worshipping at an Islamic Center, since investigator was standing at a lawful vantage point in a parking lot across the street and his use of a zoom lens was not unreasonable in light of the fact that the Islamic Center was not completely obstructed from the view of someone in the parking lot).

The only evidence introduced by Dunbar and Lilac Meadows with respect to Rivello’s photography revealed that Rivello has photographed Dunbar and his employees only when they were visible from a public roadway as they were standing or working on Lilac Meadows’ property. There is no proof that Rivello has photographed Dunbar or his employees in a private place where they had secluded themselves, or while they were attempting to exercise protected civil rights. Compare Crozier-Chester Medical Center, supra. Nor did Dunbar and Lilac Meadows present any evidence that Rivello has ever attempted to photograph an existing or prospective tenant or purchaser of Lilac Meadows. Since all photography activity by Rivello involved subjects who were plainly visible from a public vantage point, he has not committed an invasion of privacy.

Therefore, there is no reasonable likelihood that Dunbar or Lilac Meadows would prevail on a claim for invasion of privacy based upon Rivello’s photography to date. Dunbar and his employees may be concerned that Rivello may attempt to intrude upon their seclusion by photographing them in the future, but “[ijnjunctive relief is not available to eliminate a possible remote future injury or invasion of rights.” Rickman v. Mosites, 704 A.2d 655, 659 (Pa. Super. 1997). As a consequence, their requests to enjoin Rivello from photographing them, their employees, current tenants, and prospective tenants and purchasers will be denied. An appropriate order follows.

ORDER

And now, this 4th day of November, 2013, upon consideration of the “Petition for Emergency Injunctive Relief’ filed by plaintiffs, George Dunbar and Lilac Meadows, Inc., the credible evidence introduce during the hearings, and the legal arguments contained in the parties’ post-hearing submissions, and based upon the factual findings and legal conclusions set forth above, it is hereby ordered and decreed that:

1. Plaintiffs’ “Petition for Emergency Injunctive Relief’ is granted in part and denied in part;

2. Plaintiffs’ “Petition for Emergency Injunctive Relief’ is granted only to the extent that: (a) defendant is prohibited from entering Lilac Meadows’ property on Edith Street in Old Forge, unless such entry is pursuant to an express invitation by a Lilac Meadows’ tenant in accordance with 68 P.S. §250.504-A; (b) defendant is barred from communicating with George Dunbar and his employees to the extent that such communication constitutes terroristic threats under 18 Pa.C.S.A. §2706(a), harassment under 18 Pa.C.S.A. §2709(a), or stalking by communication under 18 Pa.C.S.A. §2709.1(a)(2); and (c) defendant is enjoined from “stalking” George Dunbar and his employees, as that term is defined in 18 Pa.C.S.A. §2709.1(a)(1); and

3. In all other respects, plaintiffs’ “Petition for Emergency Injunctive Relief’ is denied, including their requests to preclude defendant “from having any contact with” or ever “speaking to” any current tenants, prospective tenants or prospective purchasers of Lilac Meadows, Inc., and to bar defendant from photographing George Dunbar, his employees, and any existing tenant, prospective tenant or prospective purchaser of Lilac Meadows, Inc.

      . Rivello subsequently filed a motion seeking an award of counsel fees under 42 Pa.C.S.A. §2503(9) on the basis that Lilac Meadows’ conduct in commencing the slander action “was arbitrary, vexatious or in bad faith,” but that motion was denied as untimely and meritless. See Lilac Meadows, Inc. v. Panko, 2012 WL 5461380 (Lacka. Co. 2012).

      . One who intentionally enters the property of another without the privilege to do so is chargeable with civil trespass. Kopka v. Bell Telephone Company of Pennsylvania, 371 Pa. 444, 450, 91 A.2d 232, 235 (1952); Haan v. Wells, 2013 WL 3119996, at * 3 (Lacka. Co. 2013). Pennsylvania has adopted the Restatement (Second) of Torts §158 which imposes liability for trespass if the intruder enters or remains on the land of another without consent. Rawlings v. Bucks County Water Sewer Authority, 702 A.2d 583, 586 (Pa. Cmwlth. 1997); Murphy v. Frie, 2013 WL 5487072, at * 5 (Lacka. Co. 2013). The fact that Rivello was acquitted of defiant trespass in Com. v. Rinaldi, supra, is immaterial as to whether he may be liable for civil trespass. Criminal prosecutions are governed by the “beyond a reasonable doubt” standard, whereas civil cases are subject to the less demanding “preponderance of the evidence” burden of proof. See Suber v. Pennsylvania Commission on Crime and Delinquency, 885 A.2d 678, 681 (Pa. Cmwlth. 2005), app. denied, 586 Pa. 776, 895 A.2d 1264 (2006). Although a criminal conviction based upon the “beyond a reasonable doubt” standard constitutes conclusive proof of a defendant’s acts for purposes of civil liability premised upon the same culpable conduct, see In re Estate of Reinert, 367 Pa. Super. 147, 153-154, 532 A.2d 832, 835 (1987), app. denied, 518 Pa. 626, 541 A.2d 1138 (1988), the resolution of criminal charges in favor of a defendant does not bar a subsequent civil proceeding concerning the same underlying conduct, Boguslawski v. Department of Education, 837 A.2d 614, 617 (Pa. Cmwlth. 2003), nor does it “even constitute evidence of innocence in the civil action, upon the rationale that proof must be established beyond a reasonable doubt in the criminal case, while in civil cases, a preponderance of the evidence will suffice.” Smith v. Com., Dept. of Transp., Bureau of Driver Licensing, 747 A.2d 1247, 1250 (Pa. Cmwlth. 2000) (quoting Jordan v. Gore, 288 Pa. Super. 86, 91-92, 431 A.2d 300, 303 (1981)).

      . Section 2706(a) defines the offense of terroristic threats as “communicating], either directly or indirectly, a threat to...commit any crime of violence with intent to terrorize another” or “otherwise cause serious public inconvenience...with reckless disregard of the risk of causing such...inconvenience.” 18 Pa.C.S.A. §2706(a)(l), (3). A person commits the crime of harassment when, with the intent to harass, annoy or alarm another, the person communicates “lewd, lascivious, threatening or obscene words,” or repeatedly “in an anonymous manner” or “at extremely inconvenient hours.” 18 Pa.C.S.A. §2709(a) (4)-(6). Under Section 2709.1(a) of the Crimes Code, stalking includes “repeatedly communicat[ing] to another person under circumstances which demonstrate or communicate either an intent to place such other person in reasonable fear of bodily injury or to cause substantial distress to such other person.” 18 Pa.C.S.A. §2709.1(a)(2).


source: Caselaw Access Project

author: O’DELL-SENECA, J.,

license: Public Domain

text:
    Meridien Energy, LLC v. Hockran Excavating

      C.P. of Washington County,
    No. 2009-10043; 1203 WDA 2013

      Jason M. Yarbrough and James Richard Mall, for plaintiff/appellant.

      William T. Jorden and Matthew Bailey Jorden, for defendant/appellee.
    November 5, 2013
   O’DELL-SENECA, J.,

The matter before this court was plaintiff Meridien Energy, LCC’s (hereinafter “Meridien”) post-trial motions and challenge to the May 17, 2013 jury verdict in favor of defendant Hockran Excavating (hereinafter “H&H”) in the amount of $428,040, which plaintiff has appealed. The relevant facts are as follows:

Meridien is a contractor that constructs gas pipelines for utility companies. It was hired by Equitrans, LP, a division of Equitable Gas, to install a portion of pipeline along Route 19 in Peters Township, Washington County, Pennsylvania. Meridien hired H&H, an excavation contractor, to install a portion of the pipeline by a method known as horizontal directional drilling (“HDD”), via a June 1,2009, contract, which specified that the HDD location would be “along the existing pipeline right of way.” (Plaintiff’s trial exhibit 1). The contract also provided that acceptance of the gas line installation would be at the discretion of Equitrans, and that Meridien would make no compensation to H&H for any portion of the installation that was rejected by equitrans. Id. at ¶ 17.

In June 2009, H&H began work, and upon completing a pilot hole, Meridien tendered a progress payment to defendant for 40% of the completed project, being $285,360, per the contract. The balance of $428,040 was due to H&H upon successful completion of the project. Defendant’s vice president and co-owner, Jason Hockran, testified that he interpreted plaintiff’s progress payment as “confirmation to me that the pilot hole was where they wanted per the terms of the contract.” (T.T. Vol. 3,19:2-4).

H&H proceeded to complete the HDD and install the steel pipe into the hole. On July 16, 2009, defendant submitted an invoice to Meridien for the completed work, seeking the remaining $428,040. However, the invoice was not paid, as Equitrans had by then indicated to Meridien that “the pipe was off the right of way and perhaps under houses.” (T.T. Vol. 1, 46:3-4). Mr. Hockran testified that his company installed the pipeline within the right of way and should have been accepted. Moreover, he blamed Meridien for Equitrans rejecting defendant’s line:

[Tjhey gave us information to drill the original drill with, we utilized that information, we installed the pipe based on that information, but then after we had the pilot hole done and the pipe installed, they came back and said that there is new information that we have to not accept this line.

(T.T. Vol. 3, 34:19-24). Even so, H&H began to devise alternative solutions, because, pursuant to the contract, it would not receive payment until Equitrans accepted the work. (T.T. Vol. 3, 36:2-22).

On August 5, 2009, H&H proposed an amendment to the original contract which permitted it to complete the project by way of an intersect drill “for the original contract sum,” but H&H would “not accept any financial responsibility for any costs incurred by” Meridien or Equitrans. Plaintiff rejected this proposed amendment. In an effort to reach an agreement to complete the project to Equitrans’ satisfaction, representatives of both parties — Bob Joyce and J.J. Connor for plaintiff and Thomas Hockran for defendant — met at the Italian Fisherman restaurant in Bemus Point, New York on August 9, 2009.

Plaintiff’s agents indicated it “would incur costs and back charges” if it permitted defendant to attempt the intersect drill. (T.T. Vol. 2, 41:9-13). Mr. Hockran asked Mr. Connor for a cost estimate, and Mr. Connor testified that he replied, “It’s going to be $200,000, $250,000 minimum. It’s going to be a big number.” (T.T. Vol. 2, 96:14-15). There is significant disagreement over who would be responsible for any back charges. Mr. Joyce and Mr. Connor testified that Mr. Hockran agreed that H&H would cover plaintiff’s back charges if permitted to attempt the intersect drill. (T.T. Vol. 2,45:10-13; T.T. Vol. 2, 95:3-7). Conversely, Mr. Hockran testified that he never agreed for defendant to pay Meridien’s costs. Instead he insisted that each party pay its own additional costs related to the intersect drill. (T.T. Vol. 3, 154:1-8). A new or amended agreement was never executed, but the intersect drill was completed under the terms of the June 9, 2009, contract.

Soon after the meeting at the Italian Fisherman, H&H began work on the intersect drill, and completed the project, which Equitrans accepted. On September 4, 2009, Meridien billed defendant for $711,208.76 in back charges, but claimed that it only sought $283,168, as it had credited H&H with $428,040 for completing the project. Defendant disputed Meridien’s back charges, and, on October 1,2009, defendant’s attorney sent a letter demanding the balance of $428,040, as well as $817,125 for costs related to the intersect drill. On November 9, 2009, Meridien sued H&H.

PLAINTIFF’S MATTERS COMPLAINED OF ON APPEAL

Plaintiff’s Motion for Directed Verdict

Plaintiff complains that this court erred in refusing to grant plaintiff’s motion for directed verdict for three reasons. “[A] directed verdict may be granted only where the facts are clear and there is no room for doubt.” Perkins v. Desipio, 736 A.2d 608, 609 (Pa. Super. 1999) (internal citations omitted). “In deciding whether to grant a motion for a directed verdict, the trial court must consider the facts in the light most favorable to the nonmoving party and must accept as true all evidence which supports that party’s contention and reject all adverse testimony.” Id. (internal citations omitted). A directed verdict was not merited in this case for the reasons contained herein.

Meridien first contends this court should have issued a directed verdict because H&H failed to introduce evidence that the contract was modified to relieve defendant “for all additional costs and financial consequences in failing to provide a successfully [sic] pipeline installation.” Concise Statement of Matters Complained of on Appeal Pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), ¶ 1(a). It is undisputed that H&H ultimately completed the project, and thus this court must assume plaintiff is arguing that the original contract required defendant to cover Meridien’s costs for the initial, rejected pipeline. Plaintiff’s argument fails, as the contract only holds defendant liable for costs arising from “non-completion of the contracted work.” (Plaintiff’s trial exhibit 1, ¶ 13.1). Further, it was reasonable for the jury to interpret this clause as not applying to the rejected work which was ultimately completed and accepted by Equitrans.

Plaintiff’s second directed verdict argument is rooted in Equitrans ’ discretion to accept or rej ect any work performed by defendant. Plaintiff posits that, because Equitrans’ rejection of defendant’s initial pipeline was permissible under the contract, the jury’s verdict was contrary to law. Plaintiff’s position is incorrect, as Equitrans’ discretion to reject the HDD is immaterial to the jury’s finding that, upon defendant’s successful completion of the project, plaintiff was not entitled to back charges.

Finally, plaintiff claims it did not breach the contract, because it credited H&H with the outstanding balance of $428,040 in reducing defendant’s back charges by that amount. Again, plaintiff’s claim fails. The jury determined that plaintiff was not entitled to back charges, and thus plaintiff’s imposition of back charges — with or without credit for the outstanding balance — constituted a breach.

Defendant’s Testimony Regarding Its HDD Installation

Plaintiff next complains that the court erred in permitting defendant’s representatives to testify that its HDD installation, which was ultimately rejected, was within the prescribed right of way, and not underneath residential structures. Plaintiff argued that such testimony was irrelevant, because, absent a showing of bad faith, Equitrans was within its discretion to reject defendant’s work irrespective of it being within the right of way. (T.T. Vol. 3, 20:18-25). “All relevant evidence is admissible, except as otherwise provided by law. Evidence that is not relevant is not admissible.” Pa.R.E. 402. “’Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Pa.R.E. 401.

The testimony in question was ruled relevant, as it is critical to defendant’s theory that it behaved at all times in conformity with the contract. It is undisputed that Equitrans had discretion to reject defendant’s work, yet H&H contended that rejection did not necessarily entail a breach of its contract with Meridien. The contract required defendant to drill “along the existing pipeline right of way,” and plaintiff’s case-in-chief featured testimony that defendant breached this requirement. It is disingenuous, then, to claim defendant’s testimony in defense of a specifically-alleged breach is irrelevant. Moreover, the testimony is pertinent to the critical issue of back charges: defendant’s theory of the case is that any additional expense incurred by Meridien was, in fact, the fault of plaintiff, and that nothing in the course of defendant’s performance would warrant back charges under the contract.

The Jury Misapplied the Court’s Charge on the Law

Plaintiff further complains that, because of a question the jury asked the court during deliberations, the jury ignored or misapplied the court’s charge. “The law... is well established that courts should not overturn jury verdicts absent exigent circumstances such as a case of manifest and extreme abuse of the jury’s function. Moreover a court will not inquire into the purely internal workings of the jury’s decisional processes on the mere suspicion of confusion.” Pearsall v. Emhart Industries, Inc., 599 F.Supp. 207, 211 (E.D. Pa. 1984) (internal citations omitted). Accordingly, the jury’s question does not equate to ignoring or misapplying the court’s charge, and the jury’s verdict should not be overturned.

Plaintiff’s Post-Trial Motions

Meridien complains this court erred by failing to consider and grant plaintiff’s motion for post-trial relief on the grounds that the verdict was against the weight of the evidence and contrary to the law. This court did not err in denying plaintiff’s motion for post-trial relief, as the jury’s verdict is supported by the testimony and evidence. Defendant provided testimony that plaintiff breached the contract, as well as testimony challenging all grounds on which plaintiff alleged defendant breached the contract. “[A] 11 matters of credibility and evidentiary weight are in the province of the fact-finder,” Appeal of Mellon Bank, N.A., 467 A.2d 1201, 1202-03 (Pa. Cmwlth 1983), and, the fact-finder, being the jury, made those credibility determinations.

Accordingly, the jury’s verdict of May 17,2013, should be upheld.


author: GLAZER, /.,

text:
    WFIC, LLC v. LaBarre

      Michael G. Trachtman, Benjamin A. Andersen and David M. Burkholder, for plaintiff.

      Mark C. Cavanaugh, George Bochetto, David P. Heim, John A. O ’Connell, Stephenie W Yeung, Ralph G.

      Wellington, Aaron E. Moore, Arthur W. Lefco, Gina M. Scamby-Stowe, Andrew K. Stutzman and Mitchell L. Paul, for defendants.
    November 13, 2013
   GLAZER, /.,

PROCEDURAL AND FACTUAL HISTORY

Plaintiff, WFIC, LLC, initiated the current action against multiple defendants alleging: (1) conversion; (2) interference with contractual relations; (3) breach of contract; (4) unjust enrichment; and (5) replevin. This suit is grounded upon a series of events, dating back to the late 1990s. Between 1998 and 1999, Larry Martin (“Martin”) made three loans to defendant Polymer Dynamics, Inc. (“PDI”) totaling $1,400,000, on which PDI subsequently defaulted. In response to PDFs failure to pay, Martin’s attorney, Allen Turner (“Turner”) filed a confession of judgment. At that time, PDI was insolvent and claimed as its primary asset a lawsuit against Bayer Corporation (“Bayer”), which included claims of breach of contract and negligent misrepresentation. See brief of defendant William Anthony Hitschler on Bifurcated Issues to be Resolved by the Court, ex. 1. PDI believed all of its claims against Bayer would result in an award of at least $100 million. See WFIC complaint, ¶12. Upon discovering PDFs insolvency and pending litigation, Martin agreed, based on Turner’s advice, to release the confessed judgment in exchange for entering into a settlement agreement containing a promissory note secured by a collateral assignment and security agreement (“Assignment”). The Assignment granted Martin a security interest in a portion of potential proceeds “for any claim in tort or contract which PDI has or may assert against Bayer Corporation arising from the contract for the sale and or lease of machinery....” See WFIC compl., Ex. B. The Assignment specifies that any proceeds from the Bayer litigation are first to be applied to attorneys fees, then to any payments owed to the government, and third to all amounts then due and unpaid to Martin. See id. Additionally, the Assignment states that:

Martin may cause the proper recordation of this Collateral Assignment and Security Interest and any Uniform Commercial Code filing to perfect Martin’s collateral assignment and security interest.

Id. Acting on the language of the Assignment, Turner filed a UCC-1 financing statement on October 26,2001 in order to perfect Martin’s security interest in the Bayer proceeds. However, this financing statement expired on October 26, 2006 when Turner failed to file the necessary UCC-3 continuation statement within the requisite five years.

On June 24,2005, PDI obtained a verdict against Bayer for $12.5 million. Unsatisfied with the outcome, both parties appealed the award, which was later affirmed-plus interest-by the Third Circuit Court of Appeals in 2009. During the appeal, PDI acquired investors in order to fund its legal fees by establishing the “Bayer Litigation Fund” (“Litigation Fund”). The Litigation Fund attracted investors because they would receive their share of proceeds as a part of the attorney’s fees due to PDFs counsel.

Once the award was finalized, the funds were dispersed in October 2009 to June 2010 in the following order: (1) attorneys fees, which included the Litigation Fund investors, (2) amounts owed to the government, and (3) other secured creditors in order of priority. Martin did not receive any funds. PDI concluded that Martin’s security interest was unperfected due to his failure to file a UCC-3 financing statement after the expiration of the initial financing statement, and, therefore, disbursed the remaining funds to creditors with higher priority than Martin. In turn, Martin filed a malpractice case against his attorney, Turner, for causing his security interest to have lapsed. Martin ultimately reached a settlement with Turner, and Turner’s malpractice carrier West Chester Fire Insurance Company, for Turner’s policy limit of $1 million in 2011. The settlement required that Martin assign his claim from the Bayer litigation to his insurance company which established the entity WFIC (“plaintiff’) for the sole purpose of receiving the assignment. The assignment covered “any and all rights, claims and causes of action (based upon tort, contract, violation of statute, or otherwise) which Martin has or may have with regard to the PDI Loan Documents and the Bayer Lawsuit Proceeds, and against all persons and entities responsible for or involved in the distribution of the Bayer Lawsuit Proceeds and against all persons and entities who received any of the Bayer Lawsuit Proceeds (collectively, the “Assigned Claims”) all WITHOUT RECOURSE to Assignor.” McKissock Brief for Bifurcated Trial, Ex. 2. WFIC has brought this suit in order to receive a portion of the Bayer proceeds WFIC alleges it is entitled to arising out of the Assignment and which were paid to the various defendants in this case.

Pursuant to a request by the court appointed special master, Peter F. Vaira, Esquire, the parties submitted additional briefs on three bifurcated issues: (1) whether Larry Martin (“Martin”) perfected a security interest in the proceeds of the Bayer litigation and if so, was that security interest superior to all other security interests in the proceeds of the Bayer litigation at the time it was perfected; (2) If the answer to question 1 is yes, whether that security interest thereafter continued to be superior to all other security interests in the proceeds of the Bayer litigation; and (3) whether, the assignment of Martin’s rights to the proceeds of the Bayer litigation from Martin to WFIC was a valid assignment capable of being enforced by the court. Court order (Aug, 19, 2013).

DISCUSSION

In order to determine the first issue — whether Martin had a perfected security interest in the proceeds of the Bayer litigation — the court must analyze whether Martin’s interest was automatically perfected in 2001. “Perfecting” a security interest is a vital step in collecting from a debtor because it has the effect of establishing and protecting the priority of the lender. See 13 Pa. C.S. §9322(a); see also Dollar Bank v. Swartz, 657 A.2d 1242, 1244 (Pa. 1995). In order to perfect a security interest one must file a financing statement, unless an exception applies. For example, a security interest may be able to avoid the filing requirements if it: (1) falls within the category of “payment intangibles” and (2) it is automatically perfected, 13 Pa. C.S. §9309(2). In the case at hand, Martin’s attorney filed the UCC-1 financing statement in 2001, but failed to file the subsequent UCC-3 continuation statement in 2006. This failure caused the original UCC-1 financing statement to lapse, and left Martin with an unperfected security interest subordinate to other creditors. See 13 Pa.C.S.A. §9515(c). However, Martin’s security interest in the Bayer proceeds would have remained perfected if it met the exception of constituting as a “payment intangible” that was automatically perfected at the time of Martin’s 2001 UCC-1 filing.

As defined in 13 Pa. C.S. §9102, a “payment intangible” is a subset of “general intangible under which the account debtor’s principal obligation is a monetaiy obligation.” The importance of the debt being facially monetary is reiterated in the comments:

Virtually any intangible right could give rise to a right to payment of money once one hypothesizes, for example, that the account debtor is in breach of its obligation. The term “payment intangible,” however, embraces only those general intangibles “under which the account debtor’s principal obligation is a monetary obligation.”

13 Pa.C.S.A. §9102 cmt. 5.d. (emphasis in original). For reasons set forth below, this court rejects plaintiff’s attempt to classify an assignment of an anticipated judgment resulting from a sale of defective goods as a payment intangible.

First, the terms of the contract between PDI and Bayer do not themselves create a payment intangible for PDI. PDFs contract with Bayer was for the sale of goods. Bayer’s principal obligation was to provide PDI with machinery, and in consideration, PDI was to make payment on it. Ultimately, Bayer breached the contract by providing defective machinery. While this may give rise to a financial award, delivering faulty goods does not automatically convert Bayer’s obligation into a primarily monetary one.

Second, and more importantly, PDFs assignment to Martin of the anticipated proceeds from PDFs lawsuit against Bayer is not a payment intangible either. The Pennsylvania Supreme Court previously confronted the issue of an assignment of anticipated proceeds in a condemnation lawsuit in which the court held it to be a general intangible; it would be entitled to priority, establishing its perfection, only after the filing of a financing statement. See Sams v. Redevelopment Auth. of City of New Kensington, 436 Pa. 524, 529, 261 A.2d 566, 568 (1970). “Courts uniformly hold that, under the UCC, proceeds of an anticipated recovery from an impending lawsuit constitute general intangibles,” and consequently, “the proceeds of a resulting settlement agreement are also considered general intangibles.” First Am. Bank Valley v. George J. Hegstrom Co., Inc., 551 N.W.2d 288, 292 (N.D. 1996). Payment intangibles require an obligation, and the mere hope of receiving a favorable judgment does not create one on its own. Indeed, the precise nature of the obligation is a crucial component:

For a payment intangible to exist, there must be a “monetary obligation.” When the debtors pledged to appellants their interest in potential settlement proceeds, the alleged tortfeasors had no obligation to pay debtors anything. At that point there had been neither a settlement nor a judgment....Until there is a contractual obligation to pay a judgment, a tort claim cannot be a payment intangible because the required “monetary obligation” is lacking.

In re Cohen, 305 B.R. 886, 904 (B.A.P. 9th Cir. 2004). Although that case involves a claim of personal injury, the court’s rationale on the need for a then-existing obligation is directly on point to the case at hand. WFIC’s own description of Bayer’s obligation at the time of assignment directly conflicts with this requirement when it described Bayer as, “the prospective judgment debtor in the Bayer Litigation” with a “future obligation to pay a judgment of money damages....” See plaintiff’s Brief of Issues for First Hearing of Bifurcated Trial, at 9 (emphasis added). However, the assignment of a payment intangible requires a current debtor with an existing obligation. The mere likelihood that PDI would receive damages is insufficient. Bayer’s obligation only materialized once the verdict was upheld in 2009. Until then, Bayer was not bound to pay PDI anything. Therefore, the lack of a monetary obligation at the time of the 2001 assignment precludes this court from categorizing the security interest as a payment intangible capable of being automatically perfected. As a result, Martin was required to file a UCC-3 continuation statement upon the expiration of the original financing statement in 2006, in order to maintain his priority and perfect his interest.

Based upon the foregoing, this court holds that Martin failed to renew a security interest in the anticipated proceeds of the Bayer litigation, and therefore the general intangible assigned to WFIC, LLC did not maintain priority over other defendants’ security interests. Martin and his attorney did not file the necessary financing statement to prevent the interest from lapsing, and WFIC may not bypass those requirements by deeming its interest to be a payment intangible. In light of this decision, the court need not address the issue of whether Martin’s assignment to WFIC was valid and enforceable by the court as it would have no bearing on the disbursement of funds.

CONCLUSION

Based on the foregoing, WFIC is not entitled to any portion of the Bayer proceeds as it did not hold a superior perfected security interest over other secured creditors.

ORDER

And now, this 7th day of November, 2013, it is hereby,

ORDERED

that based upon a review of the submissions of the parties, WFIC, LLC did not have a perfected security interest in the proceeds of the Bayer litigation and therefore did not maintain priority as against other secured creditors.

      . Against all defendants except Wells Fargo, jointly and severally.

      . Against all defendants except Wells Fargo, jointly and severally.

      . Against PDI.

      . Against all defendants except McKissock and Wells Fargo.

      . Against Ardeleigh Partners, Hitschler, PDI, Peoples, and Wells Fargo

      . PDI alleged that Bayer machinery, for which PDI relied upon to maintain its business, had malfunctioned, resulting in PDFs insolvency. The complaint also included allegations of fraud, breach of fiduciary duty, misappropriation of confidential commercial information, unfair competition, and breach of disclosure agreement.

      . General intangibles is defined as “[a]ny personal property, including things in action, other than accounts, chattel paper, commercial tort claims, deposit accounts, documents, goods, instruments, investment property, letter-of-credit rights, letters of credit, money and oil, gas or other minerals before extraction. The term includes payment intangibles and software.” 13 Pa. C.S. §9102.

      . This court readily acknowledges that it is not bound by In re Cohen, but is incorporating its analysis due to a lack of relevant precedent in the Commonwealth of Pennsylvania.


author: MCCORMICK, J.,

text:
    Kunich v. NVR, Inc.
    C.P. of Westmoreland County,
    Nos. 3599 of 2010 and3600 of 2010

      Michael E. DeMatt, for plaintiffs.

      William B. Pentecost, Jr., for defendant.

      June 28, 2013
   MCCORMICK, J.,

This matter is before the court on plaintiffs’ motion for reconsideration of the court’s opinion and order of court of May 13,2013, which sustained the preliminary objections herein and dismissed this matter with prejudice.

In the motion for reconsideration the plaintiffs contend that the court failed to address their argument that the repair doctrine tolled any applicable statute of limitations on the actions.

It must be noted that the repairs which plaintiffs claim tolled the statute of limitations were not undertaken by the defendant until after the agreed-upon statute of limitations had run. The repair doctrine, as adopted in Pennsylvania in Amodeo v. Ryan Homes, Inc., 595 A.2d 1232 (Pa. Super. 1991), is a doctrine of estoppel. Estoppel might prevent a defendant from claiming the statute of limitations when a repair or course of repair is undertaken and the attempt at repair and a representation by the defendant that the repair will cure the defect causes the plaintiffs to rely upon that representation and postpone the filing of an action until after the running of the statute of limitations.

In the matter herein no repairs were initiated by the defendant until after the applicable statute of limitations had expired. The repairs and any alleged representations made by the defendant would not have caused the plaintiffs to postpone the filing of a legal action beyond the statute of limitations because the statute had already run. Therefore, no estoppel is available to the plaintiffs from the gratuitous repairs undertaken by the defendant.

ORDER OF COURT

And now, to wit, this 28 day of June, 2013, based upon the foregoing and this court’s previous opinion and order of May 13,2013, the relief sought by the motion for Reconsideration is hereby denied and the decision of May 13, 2013, is confirmed.

Further, in accord with Pa.R.C.R No. 236(a)(2)(b), the prothonotary is directed to note in the docket that the individual(s) listed below have been given notice of this order.


author: JOHNSON, J,

text:
    Selective Way Insurance Co. v. Granger

      C.P. of Lehigh County,
    No. 2012-C-3716

      Jeffrey H. Quinn, for plaintiff.

      James C. Haggerty, for defendants.

      Gladys E. Wiles, for Angstadts.
    August 1, 2013
   JOHNSON, J,

I.INTRODUCTION

Before the court for consideration are the complaint for declaratory judgment filed September 10, 2012, the Angstadts’ new matter filed October 15, 2012 and the defendants’ new matter and counter claim filed November 6, 2012.

II.FINDINGS OF FACT

1. The court incorporates by reference the stipulation of facts, attached hereto as “exhibit A.”

III.ANALYSIS AND CONCLUSIONS OF LAW

Under Pennsylvania law, the question of whether a claim against an insured is potentially covered is answered by comparing the four comers of the insurance contract to the four comers of the complaint. Donegal Mut. Ins. Co. v. Batmhammers, 938 A.2d 286, 290 (Pa. 2009). Extensions of coverage under policies of insurance are to be broadly construed to afford the greatest possible coverage to insureds, exceptions to coverage are to be interpreted narrowly and strictly against the insurer. Swarner v. Mutual Ben. Group, 2013 Pa. Super 198, No. 1275 MDA 2012, 2013 WL 3756770 (Pa. Super. July 18, 2013). The burden is on the insurer, plaintiff here, to prove that an exception or exclusion to a policy applies to preclude coverage. Id. at *3.

The commercial general liability policy (SI576480) (“policy”) at issue lists Glasbem Inc., and Albert L Granger as the “Named Insured” (Plaintiff’s exhibit A at Bate Stamp P. 1). On the record, plaintiff abandoned count I, a claim based on the expected or intended injury exclusion. Count II is based on section I-Coverages; Coverage A Bodily Injury And Property Damage Liability; 2. Exclusions; d. Workers’ Compensation And Similar Laws (“Workers’ Compensation Exclusion”) of the policy provides that “This insurance does not apply to:... Any obligation of the insured under a workers’ compensation, disability benefits or unemployment compensation law or any similar law.” (Plaintiff’s exhibit A at Bate Stamp P. 114). The Angstadts have already received workers’ compensation benefits from a separate policy and are seeking recovery in a tort action against the insured. Therefore, the court finds the plain meaning of the workers’ compensation exclusion does not apply to this case because defendants are not seeking to have plaintiff cover their workers’ compensation or similar obligation.

Count III is based upon Section I-Coverages; Coverage A Bodily Injury And Property Damage Liability; 2. Exclusions; e. Employer’s Liability (“Employer’s Liability Exclusion”) of the policy provides that “This insurance does not apply to:... “Bodily injury” to: (1) An “employee” of the insured arising out of and in the course of: (a) Employment by the insured; or (b) Performing duties related to the conduct of the insured’s business; or (2) The spouse, child, parent, brother or sister of that “employee” as a consequence of paragraph (1) above” (Plaintiff’s exhibit A at Bate Stamp P. 114). “Employee” is defined in Section V-Definitions; 5. “’’Employee” includes a “leased worker”. “Employee” does not include a “temporary worker.” (Plaintiff’s exhibit A at Bate Stamp P. 125). Based on stipulation of fact ¶1 and 7 and the plain meaning of the employer’s liability exclusion, this court finds that Jason Angstadt (“Jason”) is suing Glasbem Inc., for bodily injury he suffered during the performance of his duties as an employee and, therefore, plaintiff is relieved of the requirement to defend or indemnify Glasbem Inc., under the employer’s liability exclusion against the claims of Jason in Lehigh County Court of Common Pleas, case number 2012-C-0247. Based on stipulation of fact ¶1 and 7 and the plain meaning of employer’s liability exclusion, this court finds that Janine Angstadt (“Janine”) is suing Glasbem Inc., as a result of bodily injury her spouse suffered during the performance of his duties as an employee and, therefore, plaintiff is relieved of the requirement to defend or indemnify Glasbem Inc., under the employer’s liability exclusion against the claims of Janine in Lehigh County court of common pleas, case number 2012-C-0247.

The court finds that this case is distinguishable from Pennsylvania Manufactuers’ Ass’n Ins. Co. v. Aetna Cas. & Sur. Ins. Co., 426 Pa. 453, 233 A.2d 548 (1967), because that case dealt with the exclusion being applied by the sole insured to their own employee, whereas the case at bar deals with two named insureds and no proof that Jason is an employee of Albert L. Granger (“Granger”) individually. The court finds that Jason is suing Granger as the landowner of the property where the bodily injury occurred and that Jason is not an employee of Granger. The court’s ruling is consistent with the holding in Luko v. Lloyd’s London, 393 Pa. Super. 165, 573 A.2d 1139 (1990), where the court held that an insurer does not need to defend or indemnify an employer when the employer is a named insured being sued by that employer’s own employee. The insurer however, must indemnify and defend another named insured who is being sued if the other named insured does not employ the employee. Id. at 176.

Plaintiff cites a federal case, Forum Ins. Co. v. Allied Security, Inc., 866 F.2d 80 (3d Cir. 1989), and argues that the employer’s liability exclusion applies to Granger because he is a named insured and the exclusion applies when the “insured is liable as an employer or in any other capacity...” (Plaintiff’s exhibit A at Bate Stamp P. 114). The Forum case dealt with an employee’s family suing an employer for negligent hiring, placement, supervision, and control of another employee who attacked and killed the first employee. Forum Ins. Co., 866 F.2d 80. This case still involved an employee, or the employee’s family, suing the employer who was the named insured. In the case at bar, the court finds that Jason was not an employee of Granger and therefore, the employer’s liability exclusion does not apply to Granger. The court finds that there is no exclusion to the coverage of Granger against the claims of Janine for the same reasons.

The court finds that the plaintiff’s request for a declaratory judgment on plaintiff’s count IV and V is inappropriate and is denied because the medical expenses coverage provision has not been sought in the underlying complaint. The court finds that the plaintiff’s request for a declaratory judgment on the issue of punitive damages is inappropriate and is denied because plaintiff failed to plead that request.

IV. CONCLUSION

Pursuant to the findings of fact and conclusions of law set forth above, the court finds that plaintiff, Selective Way Insurance Company, is not obligated to defend or indemnify Glasbem Inc., under the employer’s liability exclusion of the policy. The court finds that neither the workers’ compensation exclusion nor the employer’s liability exclusion applies to Granger and, therefore, the plaintiff is not relieved of its duties to defend and indemnify Granger under the policy. Both of these conclusions apply for the same reasoning to the consortium claims brought by Janine.

ORDER

And now, this 1st day of August, 2013, upon consideration of the complaint for declaratory judgment filed September 10,2012, the defendants’ answers thereto, and after hearing;

It is hereby ordered that

1. Said complaint is granted in part and denied in part;
2. Selective Way Insurance Co., has no duty to defend or indemnify Glasbem Inc., for claims asserted by Jason Angstadt and Janine Angstadt in the Lehigh County Court of Common Pleas, case number 2012-C-0247;
3. Selective Way Insurance Co., has a duty to defend and indemnify Albert L. Granger, for claims asserted by Jason Angstadt and Janine Angstadt in the Lehigh County Court of Common Pleas, case number 2012-C-0247, that are covered in the commercial general liability policy (S1576480), which is the subject of this action.


author: BOCCABELLA, J.,

text:
    Commonwealth v. Kaufman

      C.P. of Berks County,
    No. CP-06-CR-1985-2013

      Justin Bodor, for Commonwealth.

      Kathryn Hinner, for defendant.
    October 18, 2013
   BOCCABELLA, J.,

FINDINGS OF FACT

1. On December 9th, 2012, at approximately 6:45 p.m., Chief William J. McEllroy III and Officer Peter J. Witman were dispatched to 220 Maple Drive, Tilden Township, Berks County for a possible domestic in progress involving Michael Dennis Kaufman Sr. (defendant) and his 21-year-old daughter.

2. The defendant’s daughter called her mother who was not at the location of the dispute. The mother called the police to report the dispute and was heading home where her daughter was located.

3. Chief McEllroy and Officer Witman were advised by Berks County Communications that it was unknown if the domestic dispute was physical. All that the officers were told was that the dispute involved the defendant attempting to kick his daughter out of the residence.

4. When the officers arrived, they parked their patrol vehicles on the comer of Maple Drive. As they began to walk toward the residence, Chief McEllroy noticed a white mini-van leaving the rear of220 Maple Drive. Chief McEllroy did not see who was driving the vehicle. Not knowing if there had been any domestic violence, the officers, nevertheless, decided to return to their patrol vehicles and stop the white van.

5. Chief McEllroy stopped the vehicle on Diamond Drive. He approached the vehicle and asked the defendant (Michael Kaufman) to shut off his vehicle. The defendant complied. Chief McEllroy explained to the defendant that he stopped him because he was dispatched to domestic dispute at his residence. The defendant responded “I was just trying to leave the argument and go to my mother’s house.”

6. Chief McEllroy asked the defendant to step out of the vehicle to speak to him. The defendant complied. During the conversation, Chief McEllroy noticed a strong odor of an alcoholic beverage coming from his person.

7. Chief McEllroy asked Officer Witman to perform the Standardized Field Sobriety Tests on the defendant. The defendant failed the tests. Chief McEllroy made the decision to place the defendant under arrest for DUI.

8. Officer Witman was then asked to retrieve the keys and lock the vehicle. When he sat in the vehicle to reach for the keys, he observed a plastic liquor bottle of the floor directly next to the driver’s seat. Officer Witman picked up the bottle and saw that it was approximately half-full of whiskey. The bottle was 1.75 liters of Canadian Hunter whiskey.

9. Chief McEllroy took the defendant to St. Joseph’s Medical Center and read the chemical testing warnings. The defendant refused the blood draw and did not sign anything. The defendant demanded to speak to his attorney.

10. Chief McEllroy completed the form indicating the refusal of the chemical testing and transported the defendant to his mother’s residence and released him to the custody of his wife.

11. Bill of Information was filed which charged Michael Kaufman Sr. with Driving Under the Influence of Alcohol, in violation of 75 Pa.C.S.A. §3802(a)(l) and 75 Pa.C.S.A §3809(a), Restriction on Alcoholic Beverages.

CONCLUSIONS OF LAW

1. “Where a defendant files a motion to suppress, the burdens of production and persuasion are on the Commonwealth to prove the challenged evidence was not obtained in violation of the defendant’s rights.” Commonwealth v. West, 834 A.2d 625 at 629 (Pa. Super. 2003), citing Commonwealth v. Wilmington, 729 A.2d 1160 (Pa. Super. 1999); See also Pa.R.Crim.P. 581(H).

2. The Constitution of the Commonwealth of Pennsylvania provides:

The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or seize any person or things shall issue without describing them as nearly as may be, nor without probable case, supported by oath or affirmation subscribed to by the affiant.

Pa. CONST, art. I, §8.

Section 6308(b) of the Vehicle Code provides:

Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle upon request or signal, for the purpose of checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or engine number or the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.

75 Pa.C.S.A. §6308(b) (Emphasis added).

3. “Thus, when an officer has reasonable suspicion a violation of the Vehicle Code is occurring or has occurred, he may interrupt the privileged operation of a vehicle on the public highways and stop the vehicle for the investigative purposes stated therein.” Commonwealth v. Chase, 960 A.2d 108, 112 (Pa. 2008) citing 75 Pa. C.S.A. §6308(b).

4. “To establish grounds for ‘reasonable suspicion’... the officer must articulate specific observations which, in conjunction with reasonable inferences derived from these observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and the person he stopped was involved in that activity.” Commonwealth v. Little, 903 A.2d 1269, 1272 (Pa. Super. 2006) citing Commonwealth v. Bennet, 827 A.2d 469, 477 (Pa. Super. 2003) (citing Commonwealth v. Cook, 558 Pa.50, 735 A.2d 673, 676 (1999)).

5. “In order to determine whether the police had a reasonable suspicion, the totality of the circumstances-the whole picture-must be considered.” In the Interest of D.M., 781 A.2d 1161, 1163 (Pa.2001) citing United States v. Cortez, 449 U.S. 411, 417 (1981).

6. In making this determination, we must give “due weight...to the specific reasonable inferences [the police officer] is entitled to draw from the facts in light of his experience.” Commonwealth v. Cook, 735 A.2d 673, 676 (Pa.1999) quoting Terry v. Ohio, 392 U.S. 1, 27 (1968).

7. Also, the totality of the circumstances test does not limit our inquiry to an examination of only those facts that clearly indicate criminal conduct. Rather, “[e]ven a combination of innocent facts, when taken together, may warrant further investigation by the police officer.” Commonwealth v. Cook, 735 A.2d 673, 676 (Pa.1999) quoting Terry v. Ohio, 392 U.S. 1, 22 (1968).

8. “Reasonable suspicion sufficient to stop a motorist must be viewed from the standpoint of an objectively reasonable police officer.” Commonwealth v. Chase, 960 A.2d 108, 120 (Pa. 2008) citing Ornelas v. United States, 517 U.S. 690, 696 (1996).

9. “While it is argued the lesser standard [reasonable suspicion] will allow a vehicle stop to be made based on pretextual motives, the United States Supreme Court made clear that case law ‘ foreclose [s] any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.’” Commonwealth v. Chase, 960 A.2d 108, 120 (Pa. 2008) citing Whren v. United States, 517 U.S. 806, 813 (1996); See also Commonwealth v. Foglia, 979 A.2d 357, 361-62 (Pa. Super. 2009) (Stating that observations made after the officer intends to stop the defendant can be used to support their actions).

10. “Mere reasonable suspicion will not justify a vehicle stop when the driver’s detention cannot serve an investigatory purpose relevant to the suspected violation. In such an instance, ‘it is encumbent [sic] upon the officer to articulate specific facts possessed by him, at the time of the questioned stop, which would provide probable cause to believe that the vehicle or the driver was in violation of some provision of the Code. ’ Gleason, 785 A.2d at 989 (citation omitted). See also Chase, 960 A.2d at 116 (reaffirming Gleason’s probable cause standard for non-investigative detentions of suspected Vehicle Code violations).” Commonwealth v. Feczko, — A.3d —, 2010 WL 5178034, filed May December 22, 2010 (en banc) (Emphasis in original) quoting Commonwealth v. Gleason, 785 A.2d 983, 989 (Pa. 2001) and citing Commonwealth v. Chase, 960 A.2d 120, 116 (Pa. 2008); But see Commonwealth v. Muhammed, 992 A.2d 889 (Pa. Super. 2010) and Commonwealth v. Perry, 982 A.2d 1009 (Pa. Super. 2009).

11. “We evaluate probable cause by considering all relevant facts under a totality of circumstances analysis.” Commonwealth v. Hernandez, 935 A.2d 1275, 1284 (Pa. 2007) citing Commonwealth v. Luv, 735 A.2d 87, 90 (Pa. 1999) (citing Commonwealth v. Gray, 503 A.2d 921 (Pa. 1985)).

12. “[Pjrobable cause does not require certainty, but rather exists when criminality is one reasonable inference, not necessarily even the most likely inference.” Commonwealth v. Cook, 865 A.2d 869, 875 (Pa. Super. 2004) quoting Commonwealth v. Lindblom, 854 A.2d 604, 607 (Pa. Super. 2004).

13. “[I]t is the sole province of the suppression court to weigh the credibility of the witnesses. Further, the suppression court judge is entitled to believe all, part or none of the evidence presented.” Commonwealth v. Santiago, 980 A.2d 659, 664 (Pa. Super. 2009); See also Commonwealth v. Costa-Hernandez, 802 A.2d 671, 675 (Pa. Super. 2002); See also Commonwealth v. Quiles, 619 A.2d 291, 292 (Pa. Super. 1993) citing Commonwealth v. Smith, 577 A.2d 1387, 1388 (Pa. Super. 1990).

14. In this case, Chief McEllory and Officer Witman were dispatched to 220 Maple Drive, Tilden Township, Berks County for a possible domestic in progress involving Michael Dennis Kaufman Sr. (defendant) and his 21-year-old daughter. Chief McEllory testified that the Berks County Communications reported that it was “unknown” if the domestic dispute was physical. All the officers knew is that the dispute involved the defendant attempting to kick his daughter out of the residence.

When the officers arrived, they parked there patrol vehicles on the comer of Maple Drive. As they began to walk towards the residence, Chief McEllroy noticed a white mini-van leaving the rear of 220 Maple Drive. Chief McEllroy testified that he did “not” see who was driving the vehicle. Not knowing if there had been any domestic violence, the officers decided to return to their patrol vehicles to stop the white van. Chief McEllroy stopped the vehicle on Diamond Drive. He approached the vehicle and asked the defendant (Michael Kaufman) to shut off his vehicle. The defendant complied. Chief McEllroy testified that the basis of his traffic stop was to explain to the defendant, that he stopped him because he was dispatched to domestic dispute at his residence. The defendant responded “I was just trying to leave the argument and go to my mother’s house”

Chief McEllroy asked the defendant to step out of the vehicle to speak to him. The defendant complied. During the conversation, Chief McEllroy noticed a strong odor of an alcoholic beverage coming from his person. Chief McEllroy asked Officer Witman to perform the Standardized Field Sobriety Tests on the defendant. The defendant failed the HGN, Walk & Turn, and the One Leg Stand. Chief McEllroy made the decision to place the defendant under arrest for DUI.

Chief McEllroy and Officer Witman testified that at no time during this event did he see the defendant enter the white van and drive away from the residence. The officers only saw the white van leaving the residence. They assumed that the defendant was driving this vehicle and decided to stop this vehicle. At the time of the stop, the officers did not testify that the defendant made any vehicle violations. Furthermore, the officers did not even know what occurred at the residence to stop the defendant. “To establish grounds for ‘reasonable suspicion’...the officer must articulate specific observations which, in conjunction with reasonable inferences derived from these observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and the person he stopped was involved in that activity.” Commonwealth v. Little, 903 A.2d 1269.

When Chief McEllroy stopped the defendant, he did not have articulate specific observations. He did not see the defendant speed away from the residence. He did not even see the defendant enter the vehicle. Also the officers did not have reasonable inferences that criminal activity was afoot. Dispatch did not see or report a white van leaving the residence. All the officers knew was that there was a unknown domestic dispute in the residence. Stopping a vehicle for a unknown dispute in a residence is not warranted for a traffic stop. Furthermore, the officers never reported or testified that they went to the residence to investigate the original dispatch of the unknown domestic dispute.

The court holds the evidence presented is not sufficient to establish reasonable suspicion to support a lawful stop. Based on the totality of the circumstances, the court finds that the Commonwealth has not met its burden in establishing reasonable suspicion for the vehicle stop. The court finds that the asserted ground for initiating the stop was merely pretextual and not the result of an observation of a violation of the Motor Vehicle Code. Based on all of the foregoing, this court holds that the vehicle stop occurred in violation of the defendant’s constitutional rights. Accordingly, any evidence derived from the stop is inadmissible as fruit of the poisonous tree.

15. The Defendant’s Motion for Suppression of the Evidence is granted.

16. “In evaluating an accused’s entitlement to pre-trial habeas corpus relief, a trial court must determine whether there is sufficient evidence to make out a prima facie case that the defendant committed the crime with which he or she is charged.” Commonwealth v. Hock, 728 A.2d 943, 945 (Pa. 1999); See generally Commonwealth v. Rachau, 670 A.2d 731, 733 n.5 (Pa. Commw. 1996) citing Commonwealth v. Kowalek, 647 A.2d 948, 949 (Pa. Super. 1994).

17. “A prima facie case of defendant’s guilt exists, so as to satisfy Commonwealth’s burden at pre-trial stage of criminal prosecution, when the Commonwealth produces evidence of each of the material elements of the crime charged and establishes sufficient probable cause to warrant the belief that the accused committed the offense.” Commonwealth v. Huggins, 836 A.2d 862, 866 (Pa. 2003) citing Commonwealth v. McBride, 595 A.2d 589, 591 (Pa. 1991) (citing Commonwealth v. Wojdak, 466 A.2d 991 (Pa. 1983)).

18. “The evidence need only be such that, if presented at trial and accepted as true, the judge would be warranted in permitting the case to go to the jury.” Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001).

19. “In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence.” Commonwealth v. Schmohl, 975 A.2d 1144, 1147 (Pa. Super. 2009).

20. “[Ijnferences reasonably drawn from the evidence of record which would support a verdict of guilty are to be given effect, and the evidence must be read in the light most favorable to the Commonwealth’s case.” Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001) quoting Commonwealth v. Owen, 580 A.2d 412, 414 (Pa. Super. 1990).

21. In this case, having already determined that the vehicle stop is illegal, the court finds that the Commonwealth has presented insufficient evidence to establish a prima facie case with respect to all counts.

22. The defendant’s petition for writ of habeas corpus is granted.

ORDER

And now, this 18th day of October 2013, it is hereby ordered that the defendant’s motion to suppress evidence is granted. It is further ordered that the defendant’s petition for writ of habeas corpus is granted with respect to all counts.