text:
    Waterbury Associates, Inc. v. Waterbury Kitchens, Inc.

      C.P. of Chester County,
    No. 2011-02399

      Neil E. Land, for plaintiff.

      Thomas K. Schindler, for defendants.
    November 7, 2013
   TUNNELL, J.,

Waterbury Kitchens, Inc. and Katherine Woffington have filed an appeal from this court’s order entered September 4, 2013 denying the claim of Waterbury Kitchens, Inc. for immunity or exemption under Pa. R.C.P. 3252. The court’s order contained a three (3) page footnote explaining its decision. The order was well-reasoned and complete. The court nonetheless submits this opinion pursuant to Pa. R.C.P. 1925(a) to address briefly the specific challenges raised on appeal.

As an initial matter, appellants’ statement of matters complained of on appeal contains eight (8) alleged errors by the court in connection with its September 4th order. The order, however, dealt only with issues 3 through 8. Issue 1 challenges the court’s denial of “the claim of Appellants to Dissolve the Writ of Execution.” As appellants’ conceded at the hearing conducted by the court prior to issuing its order, and as the procedural history of this case detailed below demonstrates, the September 4th order dealt solely with Waterbury Kitchens, Inc.’s (“appellant Kitchens”) claim for immunity or exemption under Pa.R.C.P. 3252. (Tr. at p. 2, 1. 17 — p. 3 1. 4, p.3 1.17- p. 4, 1. 11). The court did not entertain any “Petition to Dissolve the Writ of Execution.” To the extent this issue relates to the court’s ruling on the exemption claim, it is simply duplicative of issue 3. Similarly, issue 2 does not pertain to this court’s September 4th order but rather to an order of The Honorable Robert J. Shenkin, dated September 15, 2013, denying appellants’ petition for release of property from levy. Finally, issues 4-8 simply are simply subsets of issue 3.

Since judgment was entered against appellants on October 19, 2012, the courts have been peppered by appellants with various pleadings and alternative pleadings in an apparent attempt by them to avoid payment of that judgment. Thus, a brief recitation of the history of this case is necessary to place the court’s order September 4th in proper context.

Procedural history

The current matter is the most recent dispute in a lengthy litigation that began in March, 2011 when Waterbury Associates, Inc. (“Waterbury Associates”) filed a complaint against appellants. The action involved appellants’ breach of a promissory note. A non-jury trial was held before Judge Shenkin and by an order dated October 19, 2012, Judge Shenkin entered judgment in favor of Waterbury Associates and against Appellants, jointly and severally, in the amount of $196,872.00. Thereafter, appellants appealed to Your Honorable Court (Docket no. 3233 EDA 2012), which appeal was dismissed for failure to file post-trial motions.

Following the appeal, Waterbury Associates filed three (3) writs of execution: (1) a writ of execution against the contents of appellant Wolfington’s personal home, (2) a writ of execution against the contents of appellant Kitchen’s business office and (3) a writ of execution against a First Niagara Bank account titled in the name of appellant Kitchens. Claim exemptions were filed to each of the writs.

Exemption hearings on the first two writs were held before the Chester County Sheriff on June 13, 2013. The sheriff’s department subsequently denied both claims. Appellants filed objections to the determinations and a hearing on those objections is scheduled for November 18, 2013 before The Honorable Charles B. Smith.

In stark contrast, with regard to the First Niagara account, although a claim for exemption was filed with the sheriff’s office, appellant Kitchens never obtained a determination from the sheriff. Instead, appellant Kitchens appealed directly to the court of common pleas.

On May 20, 2013, appellants submitted a number of different filings with the courts. Appellant Kitchens first filed preliminary objections pursuant to Pa. R.C.P. 3142 to the levy of the First Niagara account and the objections were assigned to Judge Shenkin. Next, both appellant filed a petition for release of property from levy, or in the alternative for a stay of execution, which was also assigned to Judge Shenkin. Finally, appellant Kitchen filed a claim for immunity or exemption under Pa. R.C.P. 3252 with the sheriff’s office. That claim stated that the First Niagra account funds were “entirely deposit money from clients for the purchase of materials. The funds are either immune or exempt from levy or attachment, or are not the property of Waterbury Kitchens, Inc.” An exemption hearing was scheduled for May 28, 2013 before was this court. It was then continued three (3) times. On August 19, 2013, the court conducted the previously continued exemption hearing.

On September 4, 2013, the court entered an order denying the exemption claim. On September 15, 2013, Judge Shenkin denied appellants’ petition for release of property. On September 16, 2013, Appellants moved for reconsideration of this court’s September 4th order and the motion was denied on September 17, 2013. This appeal followed.

The court properly concluded that appellant Kitchen’s claim for exemption asserted on behalf of unnamed customers was not valid — Issue 6.

It was not the various claimant customers who came forth to assert title to the questioned funds, but rather appellant Kitchens who submitted the exemption claim. As the Pennsylvania courts have articulated, in a sheriff’s interpleader, the words “title, “belong to” and “owner” are to be used in their “usual and ordinary understanding as relating to the absolute ownership of the goods and chattels in controversy” Hallman v. Hallman, 83 Pa. D & C. 108, 110 (Lanc. County, 1951); see also, Atlantic Finan. Corp. v. Kester, 156 Pa. Super. 128, 39 A.2d 740 (1944). The Rules of Civil Procedure acknowledge as much and set forth who may, or may not, assert a claim. The Rules require, among other things, that a claim (1) be signed “by the claimant or someone on the claimant’s behalf’ and (2) contain a statement of the “source of the claimant’s ownership of the property.” Pa. R.C.P. 3202(b). Appellant Kitchens’ claim for exemption did not meet either of these necessary requirements. It was not signed by any still unnamed customers, nor did it contain any statement that it was authorized to sign a claim on any claimants’ behalf as required. The court acted properly in finding that appellant could not bring the claim for exemption as presented.

Despite this defect, the court considered appellant Kitchen’s substantive arguments prior to rendering its decision. Apparently unappreciative of the court’s accommodation, appellants suggest in footnote 2 to their concise statement of errors that this court did not properly consider all of the parties’ arguments prior to issuing its order. Appellants fail to mention to Your Honorable Court two material facts. First, at the hearing, appellants handed to the court for its consideration a memorandum of law that set forth appellant Kitchen’s legal position. The court, therefore, prior to issuing its original order had before it appellant Kitchen’s written arguments as well as the evidence and argument from the hearing. Second, in response to the motion for reconsideration, the court issued a subsequent order on September 17, 2013. Although the court did not change its original ruling and denied the motion, it did so “after review of the post-hearing briefs submitted by the parties.” Appellant Kitchen had a full and fair opportunity to be heard by the court, whether or not the court ultimately agreed with it.

The court’s evidentiary rulings were consistent with the Pennsylvania Rules of Evidence — Issues 6-8.

At the exemption hearing, the only evidence offered by appellant Kitchen was an affidavit of appellant Wolfington that had attached to it as exhibits various “Agreements between Purchaser and Seller.” The agreements were unsigned and the identity of the party to the agreements had apparently been redacted. Appellants’ counsel, though his own “testimony” offered that the agreements were contracts between appellant Kitchens and its customers. No one was present to present the documents or offer any testimony.

Instead, appellants’ counsel argued that the affidavit and exhibits should be admitted as self-authenticating under Pa. R.C.P. 902(11) and as an exception to the hearsay rule as a business record, Pa. R.E. 803(6). The court concluded the evidence did not comply with either rule.

A party seeking to introduce evidence pursuant to Rule 902(11) “must give an adverse parly reasonable written notice of the intent to offer the record...” and appellant Kitchens, by its own admission, did not do so. At the hearing, the court asked counsel for appellant Kitchens if notice pursuant to Rule 902(11) had been provided to Waterbury Associates and he admitted he had not done so.

THE COURT: 902(11) requires that prior to the trial or hearing, you, as the proponent, must give the adverse party reasonable written notice of your intent to offer the record. Have you done so?
MR. SCHINDLER: No, sir.

(Tr. atp. 18,1. 12-17).

Appellants argued in post-hearing submissions that because the court allowed additional briefing on the hearsay issue, the Waterbury Associates had reasonable notice of the record and thus any failure to provide notice otherwise should be ignored. The court concluded it should not do so. Appellant Kitchen had ample time to provide notice to Waterbury Associates. The exemption hearing was originally scheduled for the end of May, 2013, but was continued three times. At any point along the way, notice should have been given.

The notice requirement is important and intended to allow parties to adequately prepare for a proceeding. The exemption hearing was the time for the parties to produce evidence and challenge any evidence. Regardless of whether post-hearing briefing occurred, the hearing was Waterbury Associates’ opportunity to call witnesses and offer documentary evidence to counter appellant Kitchen’s claim for exemption. If Waterbury Associates had been aware of appellant Kitchen’s plan to introduce into evidence seven different agreements with attachments (as is contemplated by the rules), it may have conducted interviews or otherwise investigated the matter in preparation for the hearing. Appellant Kitchen’s failure to provide notice denied them this important opportunity and warranted a finding that the affidavit did not comply with Rule 902(11).

With the requirements of Rule 902(11) not having been met by appellant Kitchen, the document could not be considered an exception to the hearsay rule under the business records exception, Rule 806(3)(6). Because the affidavit of appellant Woffington did not satisfy Rule 902(11), the only other way it could meet the “business record” exception was through “the testimony of the custodian or other qualified witness.” That did not happen. Furthermore, at no time, did appellant Kitchens explain the unavailability of appellant Woffington or offer to make her available for testimony during the hearing or for that matter as part of appellants’ request that the court reconsider its order denying the claim.

The disputed funds were not held in trust by Appellant Kitchens — Issue 4.

The court’s order provides the reasoning for its decision that the funds in question were not held in trust. For further clarification, the court wishes to briefly address appellants’ contention in their post-hearing brief that the agreements submitted to the court did not need to contain any language indicating a trust relationship. Specifically, appellants cited Presbytery of Beaver Butler of United Presbyterian Church in U.S. v. Middlesex Presbyterian Court, 507 Pa. 255, 489 A.2d 1317, 1324 (1984) for the proposition that manifestation of an intention to create a trust may be written or spoken words or conduct indicating the creation of a trust. Although that may be true, appellant Kitchen presented no evidence at the hearing of any of these three things. More than counsel’s representations were required to have the court find that a trust relationship had been established. Appellant Kitchen’s showing at the hearing simply was insufficient to establish the creation of a trust.

Appellant Kitchen presented no evidence at the exemption hearing of improper notice — Issue 5.

As for appellants’ contention that the court did not properly consider evidence de hors the record of improper notice of the writ of execution, there was absolutely no evidence presented at the hearing de hors or otherwise of any notice issue. Although appellant Kitchen’s memorandum of law presented to the court at the hearing discusses improper notice briefly, there was no evidentiary support provided at the hearing or thereafter regarding the same. To the extent appellants’ petition for release of property from levy raised a notice issue, Judge Shenkin decided that petition, not this court or the appealed from order.


source: Caselaw Access Project

license: Public Domain

text:
    Office of Disciplinary Counsel v. Chaffo
    Disciplinary Board Docket No. 8 DB 2011
    November 15, 2013
   Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania (“Board”) herewith submits its findings and recommendations to your Honorable Court with respect to the above-captioned Petition for Discipline.

I. HISTORY OF PROCEEDINGS

By Petition for Discipline filed on July 18,2012, Office of Disciplinary Counsel charged John L. Chaffo, Jr. with violations of the Rules of Disciplinary Enforcement arising out of his criminal conviction for two counts of conspiracy to commit wire fraud and nine counts of wire fraud. Respondent filed an answer to petition on August 15,2012.

A disciplinary hearing was held on November 20,2012 before a District IV Hearing Committee comprised of Chair Charles C. Gallo, Esquire, and Members Jill M. Ondos, Esquire, and Mary K. Austin, Esquire. Respondent did not appear at the hearing, as he is currently incarcerated and chose to waive his right to a hearing and rely on written submissions.

The Hearing Committee filed a Report on February 12, 2013 and recommended that respondent be disbarred.

Respondent filed a brief on exceptions on February 27, 2013.

Petitioner filed a brief opposing exceptions on March 18,2013.

This matter was adjudicated by the Disciplinary Board at the meeting on May 23,2013.

II. FINDINGS OF FACT

The Board makes the following findings of fact:

1. Petitioner, whose principal office is located at Pennsylvania Judicial Center, Suite 2700, 601 Commonwealth Avenue, P.O. Box 62485, Harrisburg, PA 17106-2485, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and the duly to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid Rules.

2. Respondent is John L. Chaffo, Jr. He was bom in 1960 and was admitted to practice law in the Commonwealth of Pennsylvania in 1987. His attorney registration mailing address is 220 Grant Street, Floor 3, Pittsburgh PA 15219-2123. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

3. Respondent has no history of discipline in Pennsylvania.

4. By order of the Supreme Court, dated August 17, 2011, respondent was placed on temporary suspension pursuant to his conviction in the United States District Court for the Western District of Pennsylvania of two counts of conspiracy to commit wire fraud and nine counts of wire fraud, and the matter was referred to the Disciplinary Board pursuant to Rule 214(f)(1).

5. On July 6, 2010, after a jury trial, respondent was found guilty of two counts of conspiracy to commit wire fraud and nine counts of wire fraud.

6. On December 7, 2010, Judge Donetta W. Ambrose sentenced respondent to imprisonment of 57 months at each count, to be served concurrently.

7. Respondent appealed his conviction to the United States Court of Appeals for the Third Circuit and the Court of Appeals affirmed respondent’s conviction and sentence by opinion dated November 17, 2011.

8. Respondent filed a timely petition for a writ of certiorari with the United States Supreme Court and, by order dated May 29, 2012, the petition for certiorari was denied.

9. Respondent filed a motion pursuant to 28 U.S.C. §2255, which was denied by order of court dated October 18,2012.

10. Respondent has exhausted all of his appeals.

11. Over a six year period, respondent closed some 60 fraudulent real estate loan transactions for a fee of between $300 and $500 per closing. The documents related to the closings that were fraudulent included settlement statements that falsely reported that the purchasers of the real estate had made significant down payments associated with the purchases when they had not.

12. The settlement documents included elevated sales prices and purported seller-held second mortgages that did not exist.

13. Lenders lost between $1 million and $2.5 million.

14. Respondent currently resides at the federal prison facility in Morgantown, West Virginia.

15. Respondent acknowledges the conviction but does not accept responsibility for his acts. (R-Answer para. 6)

16. He asserts that he is the only attorney prosecuted in Pennsylvania by the federal government for mortgage fraud at a time when mortgage fraud was rampant, and believes that, “any real estate lawyer could have found himself in a similar situation.” (R-Answer para. 6)

III. CONCLUSIONS OF LAW

By his acts as set forth above, respondent violated the following Rules of Disciplinary Enforcement:

1. Pa.R.D.E. 214(i) — The crimes of conspiracy to commit wire fraud and wire fraud are each punishable by imprisonment for a maximum of 20 years. Each is a serious crime.

2. Pa.R.D.E. 2103(b)(1) — Each of respondent’s convictions is an independent basis for discipline.

IV. DISCUSSION

Respondent was convicted of the crimes of conspiracy to commit wire fraud and wire fraud. The convictions are conclusive proof that respondent committed these crimes as well as incontrovertible evidence of Respondent’s professional misconduct. Accordingly, the only issue for our consideration is the appropriate level of discipline to be imposed. Pa.R.D.E. 214 (f) (1). To that end we must examine the nature and gravity of respondent’s misconduct as well as any attending aggravating or mitigating factors. Office of Disciplinary Counsel v. Gwendolyn N. Harmon, 72 Pa.D.&C. 4th 115 (2004).

Respondent’s convictions arose from his participation in a scheme to defraud lenders in 60 real estate transactions over a period of six years. Respondent served as counsel in these real estate closings, which involved settlement statements that falsely reported substantial down payments by purchasers, elevated sales prices, and purported seller-held second mortgages that did not exist. The victims of respondent’s conspiracy lost between 1 and 2.5 million dollars. For his part in the scheme, Respondent received between $300.00 and $500.00 for each closing. He is currently serving a 57-month sentence in the federal prison facility in Morgantown, West Virginia.

The primaiy purpose of our disciplinary system is to protect the public from unfit attorneys and to maintain the integrity of the legal system. When an attorney’s breaches of trust are so egregious that his continuation in the practice of law poses a real threat to his future clients and adversely impacts on the public perception of the legal profession, disbarment is an appropriate remedy. Office of Disciplinary Counsel v. Keller, 506 A.2d 872 (Pa. 1986).

In Office of Disciplinary Counsel v. Reginald D. Greene, 169 DB 2007 (Pa. July 30, 2009) our Supreme Court rejected the Disciplinary Board’s recommendation of a five-year suspension and ordered the disbarment of an attorney who was convicted of only one count of conspiracy to commit mail and bank fraud, arising out of his participation in a conspiracy to defraud mortgage lenders. The attorney, acting as settlement agent for a title company, together with his co-conspirators used fraudulent appraisals, fabricated loan documents, non-existent “straw” purchasers and sellers and any other dishonest act that was necessary to obtain artificially inflated mortgages from lenders on at least eight occasions. The court emphasized that respondent’s refusal to acknowledge his own guilt and attempt to seek mitigation of discipline because his financial gain was more modest than his fellow conspirators made disbarment, rather than suspension, the appropriate sanction for his professional misconduct.

Similarly, in Office of Disciplinary Counsel v. Gerard Emmett Evans, 10 DB 2001 (Pa. Dec. 15, 2008) disbarment was deemed the appropriate discipline for an attorney who was convicted of mail and wire fraud.

In the instant case, respondent much like the respondent in Greene, supra; refuses to acknowledge his guilt. Instead, he asserts his innocence and claims that the existence of widespread fraud within the mortgage lending environment somehow makes his conduct less culpable. In keeping with his distorted view of his actions, respondent expresses no remorse. Of course, these are aggravating factors that must be taken into account in the analysis of this case.

Finally, the record reveals no evidence of mitigation.

For all of the foregoing reasons we recommend that Respondent be disbarred.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that the respondent, John L. Chaffo, Jr., be disbarred from the practice of law.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

ORDER

And now, this 15th day of November, 2013, upon consideration of the Report and Recommendations of the Disciplinary Board dated July 30, 2013, it is hereby ordered that John L. Chaffo, Jr., is disbarred from the Bar of this Commonwealth and he shall comply with all the provisions of Rule 217, Pa. R.D.E.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa. R.D.E.

      . See Office of Disciplinary Counsel v. Chung, 695 A.2d 405 (Pa. 1997) where the Supreme Court ordered a five-year suspension, rather than disbarment, for an attorney who was convicted of making false statements to a federally- insured institution because of powerful mitigating factors including, many years of significant community service, genuine remorse and strong character evidence. No such evidence is present here.


author: PICCIONE, «/.,

text:
    Commonwealth v. Chaudhary
    C.P. of Lawrence County,
    Nos. 117 of 2012, C.R. and 1256 of 2012, C.R.

      William J. Flannery, for Commonwealth.

      Dennis A. Elíseo, for defendant.

      October 2, 2013
   PICCIONE, «/.,

Before the court for disposition is the Petition for Writ of Habeas Corpus (hereinafter, the “petition”) filed onbehalf ofthe defendant, Imran Chaudhary (hereinafter, the “defendant”). The defendant was charged with one count of receiving stolen property pursuant to 18 Pa.C.S.A. § 3925(a) at both case numbers listed above. The petition contends that the Commonwealth has failed to state a prima facie case against the defendant with respect to the charges.

The charge at case filed at number 1117 of 2012 arises from events allegedly taking place on September 23,2012. Before commencing the hearing, the parties stipulated that the ATV was reportedly stolen and ultimately found by its owner in the ball fields of Mahoningtown at a later date. Mr. Andrew Heaton (hereinafter, “Heaton”) testified at the defendant’s preliminary hearing before Magisterial District Judge David B. Rishel on October 11, 2012. Heaton testified that while walking on Wampum Road toward the ball field on September 15, 2012, he saw two individuals standing on opposite sides of an ATV, each attempting to start the engine. Heaton testified that the ATV was green with missing decals and a broken piece on the left side. Heaton testified that one of the individuals with the ATV was the defendant, whom Heaton had recognized from prior sighting. Heaton thought the ATV had broken down, and he offered to help them push the ATV. The individuals told Heaton that the engine was just cold, but it still worked, so Heaton walked away. After continuing toward the ball field, Heaton testified that he heard the ATV’s engine start; Heaton turned around, but he did not see the individuals or the ATV.

Heaton testified that he received a telephone call at the end of a ball game on September 23, 2012 from Mr. Matthew Reighert (hereinafter, “Reighert”). Reighert told Heaton that his ATV was parked in the grass next to the parking lot. He told Heaton that he found the ATV in the woods beyond the outfield and parked it in the grass. Reighert asked Heaton to wait at the field with the ATV until his father was able to pick it up, and Heaton obliged. Heaton testified that he was certain this ATV was the same ATV he saw with the defendant on September 15,2012.

The charge at case number 1256 of 2012 arises from events allegedly taking place on September 17, 2012. On that date, Officer Terry Dolquist (hereinafter, “Officer Dolquist”) of the City of New Castle Police Department spoke with Mr. Larry Maori (hereinafter, “Maori”). Maori told Officer Dolquist that he returned home and noticed his free standing bronze fire pit was missing from his yard. He told Officer Dolquist that he found the remnant of the fire pit in the back yard of 225 S. Ashland Avenue, New Castle, Lawrence County. While Macri was out of town, his wife informed him that on Saturday, September 15,2012, a number of people were outside 225 S. Ashland Avenue with a bon fire.

Officer Dolquist went to 225 S. Ashland Avenue and spoke with the defendant. Officer Dolquist informed the defendant of the circumstances regarding the fire pit, but the defendant told Officer Dolquist he would have to speak with his parents. Officer Dolquist spoke to an individual who identified himself as the defendant’s father on the telephone. The man told Officer Dolquist that he had been out of town for weeks and his wife, Ms. Carlisa Santana (hereinafter, “Santana”) should be home. Officer Dolquist attempted to call Santana several times with the number provided to him by the man who identified himself as the defendant’s father, but Officer Dolquist was unsuccessful. Officer Dolquist also attempted to speak with Santana a number of times at 225 S. Ashland Avenue but was similarly unsuccessful. In the affidavit of probable cause, Officer Dolquist avers that he is familiar with the defendant and knows that his parents are often away from home, and he found no evidence that the persons to whom the house belongs reside therein. As a result of these facts, the defendant was charged with receiving stolen property for the fire pit.

The defendant filed the petition for both cases discussed above. In his petition, the defendant argues that the Commonwealth has failed to present sufficient evidence to establish a prima facie case to support a charge of receiving stolen property in both cases. As such, the defendant requests this court dismiss the charges at both case numbers.

Filing a petition for writ of habeas corpus is the recognized method for challenging a finding that the Commonwealth has established a prima facie case at the preliminaiy hearing stage. Comm. v. Karlson, 674 A.2d 249 (Pa. Super. 1996). See also Comm. v. McBride, 595 A.2d 589 (Pa. 1995); Comm. v. Carmody, 799 A.2d 143 (Pa. Super. 2002). On review, the trial court must find that the Commonwealth presented sufficient evidence to make a prima facie showing that the defendant committed the crime with which he or she is charged. Comm. v. Hock, 728 A.2d 943 (Pa. 1999).

In order to establish a prima facie showing, the Commonwealth must present evidence establishing that the crime charged was committed and that there is a probability that the defendant committed the charged crime. Comm. v. Fox, 619 A.2d 327 (Pa. Super. 1993). To prove these two things, the Commonwealth must offer some proof to establish each material element of the offense charged. Comm. v. Owen, 580 A.2d 412 (Pa. Super. 1990). It is not necessaiy that the Commonwealth prove each element beyond a reasonable doubt. Comm. v. Prosdocimo, 479 A.2d 1073 (Pa. Super. 1994). The Commonwealth need only meet the evidentiary standard of showing “sufficient probable cause” that the defendant committed the offense. Id. Aprima facie case is established when the Commonwealth submits evidence that, if true, would warrant the trial judge to permit the case to go to a jury. Comm. v. Marti, 779 A.2d 1177 (Pa. Super. 2001). Weight or credibility of the evidence presented is not at issue at a preliminary hearing. Id. The Commonwealth need only to present evidence concerning each element of the crime charged, and the Commonwealth is entitled to all reasonable inferences that can be drawn from the evidence presented. Id.

As stated above, the defendant is charged with two counts of receiving stolen property pursuant to 18 Pa.C.S.A. § 3925(a). “A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.” 18 Pa.C.S.A. § 3925(a). “[T]he word ‘receiving’ means acquiring possession, control or title, or lending on the security of the property.” Id. at § 3925(b). In order to sustain a charge of receiving stolen property, the Commonwealth must show “that the property was stolen, that [the defendant] was in receipt, possession or control of it, and that [the defendant] had ‘guilty knowledge,’ that is, that he knew or had reason to know that the property was stolen.” Comm. v. Grekis, 601 A.2d 1275, 1280 (Pa. Super. 1992).

For the case numbered 1117 of 2012, the defendant argues in the petition that the Commonwealth has failed to present any evidence establishing that the defendant intentionally received, retained or disposed or movable property that belonged to Mr. Edward Reighert, with no intent to restore it to the owner and that the defendant received property that he knew or should have known was stolen. As stated above, in order to establish the offense of receiving stolen property, the Commonwealth must prove that “(1) the goods are stolen; (2) the defendant received such goods; (3) the defendant knew them to be stolen or had reasonable cause to know that they were stolen.” Comm. v. Gore, 406 A.2d 1112, 1114 (Pa. Super. 1979).

Initially, via the parties’ stipulation, the Commonwealth is able to satisfy the first element: the goods were stolen. As stated above, the parties stipulated to this fact at the defendant’s preliminary hearing. In order to prove that the defendant received the stolen goods, the Commonwealth must prove that the defendant “exercised conscious control or dominion over the stolen property.” Comm. v. Brady, 560 A.2d 802, 806 (Pa. Super. 1989). Here, the Commonwealth presented evidence that the defendant and another individual possessed the ATV on September 15, 2012. Although the defendant actually possessed the ATV with another individual, the court will make the inference that both individuals had equal possession of the ATV; however, the Commonwealth is unable to satisfy the third element of the crime of receiving stolen property.

The record is devoid of any evidence to support an inference that the defendant was aware the ATV was actually stolen or the he should have known it was stolen. “[M]ere possession of stolen property is insufficient to prove guilty knowledge, and the Commonwealth must introduce other evidence ... that demonstrates that the defendant knew or had reason to believe that the property was stolen.” Comm. v. Foreman, 797 A.2d 1005, 1012 (Pa. Super. 2002). The Commonwealth has not presented additional circumstantial evidence to support the defendant had guilty knowledge. The ATV did not contain a broken lock, or any other evidence to suggest that it was unlawfully removed from the possession of its legal owner. Although the Commonwealth presented evidence that the ATV contained damage to its body, such damage is not sufficiently indicative of stolen property. Because the Commonwealth has presented no evidence that the defendant knew or should have known the ATV was stolen, it has not sustained its burden of proving a prima facie case for the charge of receiving stolen property. The charge of Receiving Stolen Property pursuant to 18 Pa.C.S.A. § 3925(a) as contained in the Information filed at case number 1117 of 2012 is dismissed, and the defendant’s petition is granted with respect to this case.

For the case numbered 1256 of 2012, the defendant argues in the petition that the Commonwealth has failed to present any evidence establishing that the defendant intentionally received, retained, or disposed of movable property of another; that the defendant knew or should have known that the fire pit which was located in the back yard of his parents residence was or probably had been stolen; and that the defendant continued to exercise control over the subject property without the intent of restoring the property to the owner. As stated above, in order to establish the offense of receiving stolen property, the Commonwealth must prove that “(1) the goods are stolen; (2) the defendant received such goods; (3) the defendant knew them to be stolen or had reasonable cause to know that they were stolen.” Gore, 406 A.2d at 1114.

Here, the property is clearly stolen. Macri informed Officer Dolquist that his fire pit was missing from his property and found destroyed in the yard of225 S. Ashland Avenue. As a result, the Commonwealth is able to satisfy the first element of receiving stolen property. However, the Commonwealth has not presented any evidence to support that the defendant received or possessed the property or that the defendant knew the property was stolen. The Commonwealth has only established that the defendant was one of the individuals residing at a location on which pieces of the fire pit were found. The Commonwealth has not presented any evidence to support an inference that the defendant was the individual who caused the fire pit to be located on the property or that he was the individual who destroyed it. Although people were seen having a bonfire at the defendant’s house, the Commonwealth has not presented any testimony to suggest that the defendant was even present during that time. Similarly, the record is devoid of any evidence to support that the defendant knew the property was stolen. The proximity of the remainder of the fire pit on the defendant’s property does not support a finding that he knew it to be stolen or should have known it was stolen. See Foreman, supra. As a result, the Commonwealth has not sustained its burden of proving a prima facie case for the charge of receiving stolen property. The charge of receiving stolen property pursuant to 18 Pa.C.S.A. §3925(a) as contained in the Information filed at case number 1256 of 2012 is dismissed, and the defendant’s petition is granted with respect to this case.

ORDER OF COURT

And now, this 2nd day of October, 2013, these cases being before the court on June 28, 2013 for a hearing on defendant’s petition for writ of habeas corpus, with Assistant District Attorney William J. Flannery, Esquire, appearing and representing the Commonwealth; and with Dennis A. Elisco, Esquire, appearing and representing the defendant; and after a complete and thorough review of the record, it is hereby ordered and decreed as follows:

1. Defendant’s petition for writ of habeas corpus is hereby granted pursuant to the attached opinion.

2. The charge of receiving stolen property as contained in the Information at case number 1117 of 2012 is hereby dismissed.

3. The charge of receiving stolen property as contained in the information at case number 1256 of 2012 is hereby dismissed.

4. The clerk of courts shall properly serve notice of this order and attached opinion upon counsel of record; and if a party has no counsel, then upon said party at their last known address as contained in the court’s file.


author: MCINERNEY, J.,

text:
    Roofing Dynamics, Inc. v. Accurso

      Jaclyn D. Levash, Joseph L. Doherty, IV and Julie Negovan, for plaintiffs.

      Eric G. Marttila, for defendants.
    October 10, 2013
   MCINERNEY, J.,

I. BACKGROUND

The Agreement

In September 2004, Peter Accurso, as the contractor, entered into a written independent contractor agreement with Brian Land and Infra Red Services Co., as the company. According to the independent contractor agreement, the company was in the business of marketing and selling services, products, and materials for use in the construction and repair of industrial and commercial flat roofs and wanted to engage Mr. Accurso as an independent contractor to market and sell these products and services in a certain geographical region. The initial term of the agreement was four years followed by successive, two-year terms, which automatically renewed unless canceled by either party upon written notice to the other given at least 90 days prior to the end of the any term. Mr. Accurso worked under the independent contractor agreement until January 2012 when his services were terminated.

The Bucks County Action

On December 14, 2012, Mr. Accurso filed a praecipe for writ of summons in the Court of Common Pleas of Bucks County (the “Bucks County Action”). In addition to naming Infra-Red Services, Inc. and Mr. Land as defendants, the writ also named Roofing Dynamics, Inc. and Roofing Dynamics Group, LLC — entities where Mr. Land is also a principal — as defendants. With the filing of the praecipe for a writ of summons, Mr. Accurso immediately sought to obtain pre-complaint discovery related to monies he avers he is owed under the independent contractor agreement following the wrongful termination of the independent contractor agreement, among other things.

On January 11, 2013, the defendants in the Bucks County action filed an emergency motion for a protective order to quash the notice of deposition of Mr. Land and bar any and all pre-complaint discovery. That same day, the Honorable Alan M. Rubenstein issued a rule to show cause and stayed any and all discovery pending disposition of the motion. On February 8, 2013, Mr. Accurso filed a response to the motion and on February 28, 2013, the defendants filed a reply. By order dated April 30, 2013, Judge Rubenstein ordered the deposition be held in abeyance for a time for medical reasons related to surgery Mr. Land underwent on March 14th, but otherwise denied the defendants motion for a protective order.

On May 8, 2013, the defendants filed a motion for reconsideration of the April 30th order as well as a motion to compel Mr. Accurso to produce certain electronic records. On June 11, 2013, Judge Rubenstein issued an order denying the motion for reconsideration. And on June 17, 2013, Judge Rubenstein entered an order that granted the defendants’ motion to compel unless Mr. Accurso filed a timely motion for a hearing, which he did on June 27, 2013.

On August 8, 2013, Mr. Land was deposed. On August 14, 2013 Mr. Accurso filed a motion to hold Mr. Land in contempt and for sanctions for Mr. Land’s alleged nonproduction of requested documents, among other things. On August 19, 2013, Judge Rubenstein dismissed the motion to compel.

The Philadelphia County Action

On August 9, 2013, Roofing Dynamics, Inc. and Roofing Dynamics Group, LLC (collectively, “Roofing Dynamics”) filed a complaint in the Court of Common Pleas of Philadelphia County, naming Mr. Accurso, Innovative Roofing Group, Inc., Roof Management Resources, RMR & Associates, Inc., Reynaldo Medina-Rucci, and John Does #1-5 as defendants (the “Philadelphia County Action”). In addition to seeking a preliminary injunction, the complaint asserted seven causes of action: breach of contract (against Mr. Accurso); breach of fiduciary duty (against Mr. Accurso); usurpation of corporate opportunity (against Mr. Accurso); fraud/fraudulent misrepresentation (against Mr. Accurso and Mr. Medina); intentional interference with prospective contractual relations (against all defendants); civil conspiracy (against all defendants); and misappropriation of trade secrets (against all defendants).

According to the complaint, Mr. Accurso was a trusted marketer and business associate for Roofing Dynamics starting in September 2004 when he entered into an independent contractor agreement with Infra-Red Services, Inc., a predecessor of Roofing Dynamics, Inc. This relationship continued until Mr. Accurso’s services were terminated by Roofing Dynamics Group, LLC on January 4,2012. The complaint explained that in or about March 2006, Mr. Land/Infra Red Services Co. assigned the independent contractor agreement to Roofing Dynamics, Inc. pursuant to a provision in the agreement allowing unilateral assignment of the agreement by Infra Red Services Co. and that the agreement was later assigned in or about August 2011 to Roofing Dynamics Group, LLC pursuant to the same provision.

According to the complaint, the independent contractor agreement contained confidentiality and non-compete provisions that Mr. Accurso breached. The complaint alleged Mr. Accurso diverted business from Roofing Dynamics’ customers to competitors, including upon information and belief two entities Mr. Medina is a principal of — Roof Management Resources and RMR & Associates, Inc. The complaint further alleged Mr. Accurso provided Mr. Medina and his two entities with Roofing Dynamics’ confidential trade secret information and that all of the defendants conspired together to defraud Roofing Dynamics and divert its business to Mr. Medina and his two entities with Mr. Accurso receiving kickbacks on the diverted business through circuitous financial transactions.

Roofing Dynamics’ Motion to Coordinate

On August 16, 2013, Roofing Dynamics filed a motion to coordinate the actions pursuant to Pennsylvania Rule of Civil Procedure 213.1. Roofing Dynamics sought to have the Bucks County Action stayed and that case and any and all further proceedings therein transferred to the Court of Common Pleas of Philadelphia County. Having cited the factors laid out at Rule 213.1(c) for determining whether to order coordination and which location is appropriate for the coordinated proceedings, Roofing Dynamics argued coordination of the actions was proper because: there are common factual issues as the discovery Mr. Accurso seeks in the Bucks County Action overlaps with the discovery Roofing Dynamics will seek in the Philadelphia County Action; interpretation of the independent contractor agreement will be a predominant question of law; not coordinating the actions could result in duplicative and inconsistent rulings, orders, or judgments; judicial resources will be conserved; and settlement will be more likely if all the parties are brought before the same court. Roofing Dynamics further argued coordination of the actions in Philadelphia was proper because: the Commerce Program in the Court of Common Pleas of Philadelphia County specializes in business disputes; the Bucks County Action has not progressed to the same extent because a complaint has not been filed there; all of the responsible parties have already been named in the Philadelphia County Action; Mr. Medina and his two entities are domiciled in Philadelphia County; other parties are located in proximity to Philadelphia, and the witnesses, such as customer service reps located in New Jersey, would find traveling to Philadelphia more convenient.

On September 11, 2013, Mr. Accurso and Innovative Roofing Group, Inc. (collectively, “Accurso”) filed a response in opposition to Roofing Dynamics’ motion to coordinate. Therein, Accurso preliminarily took issue with what they perceived as Roofing Dynamics’ obstruction of Mr. Accurso’s attempts to conduct legitimate pre-complaint discovery to obtain Information necessary to prepare a complaint and argued, but for this conduct, Mr. Accurso would have already filed a complaint in the Bucks County Action and Mr. Land and his entities should not be permitted to benefit from this conduct. Accurso then argued the actions should not be coordinated as the factors laid out at Rule 213.1(c) are only minimally met, but if the actions were to be consolidated, the cases should be coordinated in Bucks County, not Philadelphia County.

Regarding coordination in general, Accurso acknowledged the two actions have common issues of fact and law concerning the independent contractor agreement, but otherwise denied coordination was proper, arguing there are different parties in the actions and refusing to coordinate would more likely result in settlement of the actions. Regarding coordination in Philadelphia versus Bucks County, Accurso argued, in terms of the convenience of the parties and witnesses, none of the parties other than the newly added parties, Mr. Medina and his two entities, have any affiliation or ties to Philadelphia and witnesses will include individuals from Pennsylvania, New York, and New Jersey who will to able to appear just as easily in Bucks County as Philadelphia County. Regarding coordination in Philadelphia versus Bucks County, Accurso also argued (1) Judge Rubenstein is familiar with the claims, issues, and parties and has issued multiple ruling and has motions pending and (2) Mr. Accurso would likely be prejudiced by coordination in Philadelphia because there is a motion for contempt pending in Bucks County and transfer may allow Mr. Land to avoid being held in contempt and the imposition of sanctions.

On September 27, 2013, Roofing Dynamics filed a reply in further support of their motion for coordination. Therein, Roofing Dynamics stated:

[Accurso] litter their response and accompanying brief to [Roofing Dynamics’] motion for coordination with numerous points that have no relevance to [Roofing Dynamics’] motion and are meant merely to sully the reputations of [Roofing Dynamics’] and their principals. The inescapable facts, which [Accurso] fail to address, are (1) [Mr. Accurso] ha[s] not filed a complaint in the Bucks County [A]ction, and (2) [Roofing Dynamics] have filed a complaint in this action. Along with the other facts set forth in the motion for coordination, these are sufficient reasons to grant [Roofing Dynamics’] motion.

(Pis.’ Reply pp. 1-2.) Addressing the motion for contempt, Roofing Dynamics also stated the motion remains pending and if this court grants the motion for coordination and transfers the case to Philadelphia, it will have the ability to address the contempt motion at that time.

On October 2, 2013, Accurso filed a sur-reply mainly addressing what Roofing Dynamics maintained were the inescapable facts Accurso failed to address; that Mr. Accurso has not filed a complaint in the Bucks County Action and that Roofing Dynamics have filed a complaint in this action. Preliminarily, Accurso argued “[w]here, as here, [a party] comes to the [c]ourt with grossly unclean hands — having systematically and intentionally frustrated [the other party’s] good faith efforts to file a complaint for more than half a year — such an assertion that the mere ‘first’ filing of a complaint controls disposition of the requested [m]otion to [o]rder [coordination is absurd on its face.” (Defs.’ sur-reply pp. 1-2.) In support of this assertion, Accurso later argued:

Because [Mr. Land and Roofing Dynamics] are solely responsible for [Mr.] Accurso’s inability to file a complaint in the Bucks County Action to date, they should not reap some unwarranted benefit from their improper and arguably sanctionable conduct. Where said discovery has already commenced in Bucks County — notwithstanding that it has been largely obstructed and thwarted through the actions of [Roofing Dynamics and Mr. Land] — to order coordination of the cases by removing the first-filed Bucks County Action to Philadelphia would be unjust. The reality is that, but for the acts of [Mr. Land and Roofing Dynamics], [Mr.] Accurso would have already filed his complaint in the Bucks County [A]ction.

(Defs.’ sur-reply p. 4.) Accurso also noted that since the filing of the motion to coordinate, Roofing Dynamics had file a motion to discontinue their action against the only individual defendant with a connection to Philadelphia County; Mr. Medina.

II. DISCUSSION

The issues of whether to coordinate as well as where to coordinate are reviewed for abuse of discretion. Pennsylvania Manufacturers’ Ass’n Inc. Co. v. Pennsylvania State Univ., 63 A.3d 792 (Pa. Super. Ct. 2013). In determining whether there was an abuse of discretion, the Superior Court has explained that whether it would have reached the same conclusion is immaterial. Washington v. FedEx Ground Package Sys., Inc., 995 A.2d 1271, 1277 (Pa. Super. Ct. 2010). Rather, the question is whether the record provides a sufficient basis to justify the order of coordination. Id. If it does, no abuse of discretion exists. Id.

“In determining whether to order coordination and which location is appropriate for the coordinated proceedings,” Pennsylvania Rule of Civil Procedure 213.1(c) provides that “the court shall consider, among other matters:”

(1) whether the common question of fact or law is predominating and significant to the litigation;
(2) the convenience of the parties, witnesses and counsel;
(3) whether coordination will result in unreasonable delay or expense to a party or otherwise prej udice a party in an action which would be subject to coordination;
(4) the efficient untilization of judicial facilities and personnel and the just and efficient conduct of the actions;
(5) the disadvantages of duplicative and inconsistent rulings, orders or judgments;
(6) the likelihood of settlement of the actions without further litigation should coordination be denied.

Pa. R. Civ. P. 213.1(c). In exercising its discretion, the trial court must consider these factors enumerated at Rule 213.1(c), but it is also free to consider other matters such as where suit was first filed. Pennsylvania Manufacturers ’ Ass’n, 63 A.3d at 796. The court should also receive guidance “from the explanatory comment to Rule 213.1 (c), which explains that the ultimate determination that [it] must make is whether coordination is ‘a fair and efficient method of adjudicating the controversy.”’ Washington, 995 A.2d at 1277, quoting Pa. R. Civ. P. 213.1 Explanatory comment 1990.

With these principles in mind, it was this court’s determination that the actions should be coordinated and they should be coordinated in Bucks County by transferring the Philadelphia County Action to Bucks County. Preliminarily, however, the court would like to address the extensive argument the parties made regarding the fact that a complaint has been filed in the Philadelphia County Action, but not the Bucks County Action.

The only real significance this court saw to these facts in this case is that it was called on to decide the motion to coordinate as Rule 213.1(a) requires the motion for coordination be filed in the court in which a complaint was first filed. See Pa. R. Civ. P. 213.1(a) (providing that when there are “actions pending in different counties which involve a common question of law or fact..., any party, with notice to all other parties, may file a motion requesting the court in which a complaint was first filed to order coordination of the actions.”). But deciding the motion does not change the fact that the court’s ultimate task is to determine “whether to order coordination and which location is appropriate for the coordinated proceedings....” Pa. R. Civ. P. 213.1(c). And as will be discussed below, the court can actually properly consider where suit (versus a complaint) was first filed in deciding to transfer the other action(s) to that county.

Now, regarding coordination in general and, if so, where to coordinate, the first factor the court must consider is whether there is a common question of fact or law that is predominating and significant to the litigation. Pa. R. Civ. P. 213.1(c)(1). There is no dispute that these actions contain common questions of law and fact involving the independent contractor agreement and who breached it, and that these questions will be predominating and significant to the litigation. Thus, this factor strongly favors coordination.

Next, the court must consider the convenience of the parties, witnesses and counsel. Pa. R. Civ. P. 213.1(c) (2). Here, the court determined convenience would be enhanced by litigating these matters in one forum versus two, but in terms of Philadelphia versus Bucks County, the geographic factor is insignificant. In terms of coordination in general, all involved will clearly benefit by having these actions litigated together rather than having them litigated separately in two different forums. But in terms of Philadelphia versus Bucks County, neither forum appeared to be more convenient than the other: Roofing Dynamics counsel is located in Philadelphia County, while Accurso’s counsel is located in Bucks County; more parties appear to be located in Bucks County, but there is nothing particularly onerous about traveling between Philadelphia and Bucks County, see, e.g., Catagnus v. Allstate Ins. Co., 864 A.2d 1259, 1266 (Pa. Super. Ct. 2004) (holding the decision to transfer a case from Philadelphia to Bucks County was error, and observing travel between Philadelphia and Bucks County is not particularly burdensome) and Johns v. First Union Corp., 777 A.2d 489, 491-92 (Pa. Super. Ct. 2001) (concluding the trial court improperly transferred a case from Philadelphia to Bucks County and commenting on the close distance between Philadelphia and Bucks County); and the same is true for any witnesses traveling to Philadelphia versus Bucks County or vice versa, whether they be in New Jersey, New York, or elsewhere in Pennsylvania.

The third and forth factors require the court to consider “whether coordination will result in unreasonable delay or expense to aparty or otherwise prejudice aparty in an action which would be subject to coordination” and “the efficient utilization of judicial facilities and personnel and the just and efficient conduct of the actions[,]” respectively. Pa. R. Civ. P. 213.1(c)(3)-(4). Here, the court considered the issues of: the pending motion for contempt; the litigation that has already occurred in Bucks County; and judicial efficiency in general.

First, as of the filing the papers regarding the motion for coordination, Mr. Accurso had a motion for contempt and sanctions against Mr. Land pending in Bucks County. While Roofing Dynamics argued this court could decide the motion if the Bucks County Action was transferred here, this court did not agree. “Each court is the exclusive judge of contempts against its process....” Ricci v. Geary, 670 A.2d 190, 191 (Pa. Super. Ct. 1996) (quotations omitted). As such, it would be improper for this court to decide whether Mr. Land was in contempt for violating one or more of Judge Rubenstein’s orders. Thus, Mr. Accurso could be prejudiced if the court coordinated the actions as suggested by Roofing Dynamics, and this factor favored coordination in Bucks County.

Second, the litigation that has already occurred also favored coordination in Bucks County. The issue of pre-complaint discovery has been heavily litigated in Buck County, and to date, Judge Rubenstein has already issued six orders in the Bucks County Action. In terms of efficiency, while the commerce program specializes in business disputes, in this case that fact is outweighed by the fact that more significant litigation has already occurred in Bucks County and Judge Rubenstein and Bucks County judicial personnel are already familiar with the claims, issues, and parties. Transferring the Bucks County Action to Philadelphia County would not ensure the efficient utilization of judicial facilities and personnel. Rather, efficiency would be enhanced by transferring the Philadelphia County Action to Buck County and Judge Rubenstein and who are already familiar with the claims, issues, and parties.

Finally, judicial efficiency in general favors coordination. Judicial resources will clearly be utilized more effectively if both actions are before the same court rather than litigated separately in two different courts.

The fifth factor requires consideration of “the disadvantages of duplicative and inconsistent rulings, orders or judgments” and favors coordination. Pa. R. Civ. P. 213.1(c)(5). For example, both actions involve interpretation of the independent contractor agreement. Coordinating the actions will ensure there are no inconsistent interpretations of the agreement. Coordination will also prevent res judicata and/or collateral estoppels issues, and a race to judgment.

The sixth and final factor laid out in Rule 213.1 requires the court to consider “the likelihood of settlement of the actions without further litigation should coordination be denied.” Pa. R. Civ. P. 213.1(c)(6). In the opinion of this court, this factor did not weigh either for or against coordination as neither party’s argument was particularly strong on the issue, nor did the court perceive any significant advantage or disadvantage to settlement should coordination be denied, particularly where one of the actions (the Philadelphia County Action) essentially contains all of the parties to both actions so that they would be able to sit around the same table and negotiate. Cf. Pennsylvania Manufacturers’ Ass’n, 63 A.3d at 796 (Strassburger, J., concurring) (noting the likelihood of settlement would be enhanced if all the parties “can sit around the same table and negotiate, with or without input from a judge”).

Finally, in terms of where to coordinate, this court also considered that suit was first filed in Bucks County. In Pennsylvania Manufacturers’ Association, the trial court granted a motion to coordinate and transferred an action filed in Centre County to Philadelphia County. 63 A.3d at 794. In doing so, the trial court considered that the Philadelphia County action was first-filed. Id. at 796. On appeal, the appellant argued this was a tangential consideration the trial court should not have examined. Id. The Superior Court, however, concluded this argument conflicts with the plain language of Rule 213.1 that the court shall consider the Rule 213.1(c) factors, among other matters. Id. The court then held the trial court must consider the enumerated factors, but is free to consider other matters such as where suit was first filed in making its determination. Id. In this case, while a complaint was first filed in Philadelphia, suit was first filed in Bucks County some eight months earlier. This fact favored coordination in Bucks County.

In sum, coordination is a fair and efficient method of adjudicating these actions, which contain common questions of law and fact. Moreover, the Buck County Court of Common Pleas is a fair and efficient forum for resolving these controversies as it: is where more significant litigation has already occurred; is where the court and court personnel are more familiar with the claims, issues, and parties; is where suit was first filed; and would avoid prejudice to Mr. Accurso. Thus, this court properly determined the actions should be coordinated and that the actions would best be coordinated by transferring the Philadelphia County Action to Buck County.

ORDER

And now, this 10th day of October, 2013, upon consideration of Roofing Dynamics, Inc. and Roofing Dynamics, LLC’s motion for coordination, Peter Accurso and Innovative Roofing Group, Inc.’s response, Roofing Dynamics, Inc. and Roofing Dynamics, LLC’s reply, Peter Accurso and Innovative Roofing Group, Inc.’s sur-reply, and in accordance with the opinion issued simultaneously hereto, it is hereby ordered and decreed that:

the above-captioned action and the action pending in the Court of Common Pleas of Bucks County under the caption Peter Accurso vs. Infra-Red Services, Inc., Roofing Dynamics Group, LLC, Roofing Dynamics, Inc., and Brian Land, No. 2012-10507, are to be coordinated;
the actions are to be coordinated in the Court of Common Pleas of Bucks County;
the above-captioned action and any and all further proceedings therein are transferred to the Court of Common Pleas of Bucks County;
within ten days of the date of this order, Roofing Dynamics, Inc. and Roofing Dynamics, LLC shall serve, pursuant to Pa. R. Civ. P. 440, a copy of this order on all other parties in all actions subject hereto;
Peter Accurso and Innovative Roofing Group, Inc. shall pay the costs, if any, of coordination;
the Office of the Prothonotary of Philadelphia county shall send a certified copy of this order to the Court of Common Pleas of Bucks County; and
the Court of Common Pleas of Bucks County shall take such action as may be appropriate to carry out this order for coordination.

      . By letter dated October 3,2013, Roofing Dynamics requested oral argument on its motion for coordination, asserting argument would be beneficial to completely address the procedural status of the actions and the law governing coordination. With a reply and sur-reply being filed, it was this court’s opinion that it was provided with the facts, allegations, and legal positions of both parties to the point oral argument would have been redundant and any questions the court had regarding the exact procedural status of the Bucks County Action were immaterial. Accordingly, the court concluded oral argument was unnecessary.


author: BELTRAMI, J.,

text:
    Rivera v. YMCA of Bethlehem

      C.P. of Northampton County,
    No. C-48-CV-2013-1268

      Joshua D. Fulmer, for plaintiff.

      Edward J. Easterly, for defendants.
    October 29, 2013
   BELTRAMI, J.,

ORDER OF COURT

And now, this 29th day of October, 2013, “defendants, YMCA-Bethlehem, Chris Brown, and Jenna Spirk Camasta’s [,] preliminaiy objections” to plaintiff’s amended complaint are hereby overruled. Defendants shall file an answer to plaintiff’s amended complaint within twenty (20) days.

STATEMENT OF REASONS

On February 5, 2013, plaintiff filed a complaint, in which she asserted claims of defamation and false-light invasion of privacy against defendants. On March 11, 2013, defendants filed preliminary objections to plaintiff’s complaint, which were sustained by this court on May 28, 2013. On June 17, 2013, plaintiff filed an amended complaint.

In her amended complaint, plaintiff avers the following facts. Plaintiff was employed by defendant YMCA-Bethlehem (“YMCA”) as a custodian. (Am. Compl. ¶8.) During plaintiff’s employment, defendant Chris Brown was the acting branch director and defendant Jenna Spirk Camasta was the child care coordinator for the YMCA. {Id. ¶¶4, 6.) On August 15,2012, Brown called plaintiff at her home and informed her that she was being fired from her position “because she was seen on camera stealing a wallet from the ‘teen room’ at the” YMCA. {Id. ¶13.) Plaintiff “denied that she had stolen anything.” {Id. ¶14.)

Brown made a report to the City of Bethlehem Police Department about the incident, “falsely accusing” plaintiff of theft. {Id. ¶15.) The wallet in question was later discovered in the parking lot of the YMCA. {Id. ¶20.) When it was found, nothing was missing from the wallet. {Id.) Prior to the incident, plaintiff never walked through the lot where the wallet was found because she took public transportation to and from work, and the bus stop is located in the opposite direction from the lot. {Id. ¶21.) “The videotape in question does not show [plaintiff] stealing a wallet or any other item from the” YMCA. {Id. ¶22.)

Following an investigation by police that forced plaintiff to hire counsel, plaintiff was not charged criminally regarding the incident. (Id. ¶23.) During this investigation, Brown and Camasta repeated the false theft allegations to others at the YMCA, including plaintiff’s co-workers, such that the false allegations became common knowledge among all of the employees of the YMCA. (Id. ¶¶16-19.) Plaintiff’s amended complaint also specifically identifies Kirby White, the alleged victim of the theft, as well as YMCA employees “Gaye (last name unknown)” and “Jim (last name unknown)” as people Brown, Camasta, and another YMCA employee, Robert Fritz, spoke to about the false allegations against plaintiff. (Id. ¶¶16-19.)

In counts I, II, and III of the amended complaint, plaintiff seeks damages for defamation against YMCA, Brown, and Camasta, respectively. In counts IV, V, and VI of the amended complaint, plaintiff alleges false-light invasion of privacy against YMCA, Brown, and Camasta, respectively.

On July 9,2013, defendants filed the instant preliminary objections to plaintiff’s amended complaint, in which they assert demurrers to all of the counts contained in the amended complaint. Any party may file preliminary objections alleging “legal insufficiency of a pleading (demurrer).” Pa.R.C.P. No. 1028(a)(4). To sustain a demurrer, a court must be certain that the law will not permit recovery. Pa. Builders Ass’n v. Dep’t of Labor and Indus., 4 A.3d 215, 220 (Pa. Commw. 2010). “[A] court must overrule the objection if the complaint pleads sufficient facts which, if believed, would entitle the petitioner to relief under any theory of law.” Wilkinsburg Police Officers Ass’n By and Through Harder v. Commonwealth, 636 A.2d 134, 137 (Pa. 1993). Any doubt as to whether the demurrer should be sustained must be resolved in favor of overruling it. Soto v. Nabisco, Inc., 32 A.3d 787, 790 (Pa. Super. 2011). In ruling on a demurrer, a trial court must accept all material factual averments in a complaint as true, as well as all inferences reasonably deducible therefrom. O’Donnell v. Hovnanian Enters., Inc., 29 A.3d 1183, 1186 (Pa. Super. 2011). “Preliminary objections in the nature of a demurrer require the court to resolve the issues solely on the basis of the pleadings; no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by the demurrer.” Hess v. Fox Rothschild, LLP, 925 A.2d 798, 805 (Pa. Super. 2007) (quoting Cardenas v. Schober, 783 A.2d 317, 321-22 (Pa. Super. 2001)).

In the first section of their preliminary objections, defendants assert that plaintiff has not set forth sufficient facts to state a cause of action for defamation against any of them. The elements of defamation are as follows:

(а) Burden of plaintiff. — In an action for defamation, the plaintiff has the burden of proving, when the issue is properly raised:
(1) The defamatory character of the communication.
(2) Its publication by the defendant.
(3) Its application to the plaintiff.
(4) The understanding by the recipient of its defamatory meaning.
(5) The understanding by the recipient of it as intended to be applied to the plaintiff.
(б) Special harm resulting to the plaintiff from its publication.
(7) Abuse of a conditionally privileged occasion.

42 Pa.C.S.A. §8343(a)(l)-(7).

The first element of defamation is “[t]he defamatory character of the communication.” Id. §8343(a)(l).

A communication is considered defamatory if it tends to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. MacElree. “It is not enough that the victim of the [statements] . . . be embarrassed or annoyed, he must have suffered the kind of harm which has grievously fractured his standing in the community of respectable society.” Tucker v. Phila. Daily News, 577 Pa. 598, 616, 848 A.2d 113, 124 (2004).
Further, statements alleged to be defamatory must be viewed in context. Baker v. Lafayette Coll., 516 Pa. 291, 532 A.2d 399 (1987)....
Alleged claims for defamation should not be dismissed on the basis of a preliminaiy objection in the nature of a demurrer unless it is clear the communication is incapable of defamatory meaning. Petula v. Mellody, 138 Pa. Cmwlth. 411, 588 A.2d 103 (1991) (Petula I). Whether a communication is capable of a defamatory meaning is a question for the court in the first instance. Id.; Rybas. However, if the court concludes the communication could be construed as defamatory, the final determination is for the jury. Petula I. Under Pennsylvania law, courts act as gatekeepers to determine whether statements are incapable of defamatory meaning in deciding whether any basis exists to proceed to trial. Mzamane.

Balletta v. Spadoni, 47 A.3d 183, 197 (Pa. Commw. 2012).

In this case, defendants’ statements are capable of a defamatoiy meaning. Plaintiff avers, and the court must accept as true, that the allegations of theft and resulting firing from her position harmed plaintiff’s reputation and affected her standing in the community. Furthermore, the fact that plaintiff was fired means that the type of harm she suffered was more than mere embarrassment.

In their brief, defendants argue that Camasta’s statement to her co-worker, Gaye, constitutes an opinion. “Generally, a statement that is merely an expression of opinion is not defamatory.” Id. In paragraph eighteen of her amended complaint, plaintiff avers that Camasta told Gaye “specific details regarding the [videotape] and specifically stated that she believed . . . Plaintiff stole [the] wallet.” (Am. Compl. ¶18.) While it is reasonable to assume that Camasta’s actual belief that plaintiff stole the wallet is an opinion, the specific details regarding the videotape are not. Thus, the court cannot conclude, at this stage of the proceeding, that this communication constitutes a non-actionable opinion.

The second element of defamation is “publication by the defendant.” 42 Pa.C.S.A. §8343(a)(3). Publication occurs when a defamatory statement is either “published or communicated to a third person.” Elia v. Erie Ins. Exch., 634 A.2d 657, 660 (Pa. Super. 1993). Defendants argue that plaintiff has failed to establish this element because she has not specifically identified, by name, those to whom the alleged defamatory statements were made. However, a plaintiff is not required to identify the recipients of a defamatory communication by name. See Petula, 588 A.2d at 107. In Petula, the plaintiff averred that the defamatory statements were made to “representatives and board members’ of certain named school districts.” Id. There, the court stated that “[w]hile it would have been preferable to identify the third parties by name, the identification of the third parties here, in our opinion, is not so vague so as to warrant sustaining a demurrer.” Id. Likewise, in Suppan v. Kratzer, 660 A.2d 226, 229 (Pa. Commw. 1995), the Commonwealth Court concluded that the plaintiff had sufficiently identified the persons to whom the alleged defamatory statements were made where plaintiff simply identified them as “Northampton police officers.”

In the instant case, plaintiff’s identification of the third parties is not so vague as to warrant the sustaining of defendants’ demurrers. In this regard, plaintiff avers that Brown and Camasta made false allegations about plaintiff to Kirby White and to “multiple staff members [of the YMCA], such that the allegations became common knowledge amongst all of the employees of’ the YMCA. (Am. Compl. ¶¶16-17.) The amended complaint also claims that Camasta made false statements to a fellow “employee, Gaye (last name unknown).” {Id. ¶18.) Finally, the complaint alleges that YMCA employee Robert Fritz made defamatory statements to “a fellow maintenance employee, Jim (last name unknown).” {Id. ¶19.) Reviewing these paragraphs of plaintiff’s amended complaint, it is clear that plaintiff has sufficiently pleaded the identity of the parties to whom the alleged defamatory statements were made.

Defendants raise no arguments concerning the third, fourth, fifth, and sixth elements of defamation. In any event, a review of plaintiff’s amended complaint reveals that she has adequately pleaded those elements as to all defendants.

The final element of a defamation claim is the “abuse of a conditionally privileged occasion.” 42 Pa.C.S.A. §8343(a)(7). However, this element is only applicable where a defendant proves a conditional privilege, since the statute states that “[i]n an action for defamation, the plaintiff has the burden of proving, when the issue is properly raised[,] . . . [a]buse of a conditionally privileged occasion.” Id. (emphasis added). The statute further indicates that the issue of abuse is only properly raised when the defendant meets the “burden of proving . . . [t]he privileged character of the occasion on which [the defamatory communication] was published.” See id. §8343(b). In other words, the plaintiff is only required to prove abuse of a conditional privilege after the defendant has proven that a conditional privilege applies. See Elia, 634 A.2d at 661. Thus, plaintiff does not necessarily have to plead this element in a defamation complaint.

Nevertheless, in their preliminary objections, defendants argue that the statements made by Brown and Camasta to their co-workers and/or the victim were subject to a conditional privilege that was not abused. For the reasons stated above, conditional privilege is an affirmative defense. See 42 Pa.C.S.A. §8343(b); Pa.R.C.P. No. 1030(a). An affirmative defense must be raised in new matter and may not be raised by way of preliminary objections. See Pa.R.C.P. No. 1030(a); Bocchicchio v. Gen. Pub. Utils. Corp., 689 A.2d 305, 307-08 (Pa. Super. 1997). This is because an affirmative defense “ignores what the adverse party has averred and adds new facts to the legal dispute on the theory that such new facts dispose of any claim or claims which the adverse party had asserted in his pleading.” Sechler v. Ensign-Bickford Co., 469 A.2d 233, 235 (Pa. Super. 1983) (quoting 2 ANDERSON PENNSYLVANIA CIVIL PRACTICE §1030.12). Where a defendant improperly raises an affirmative defense by way of preliminary objections, the plaintiff must challenge the defect by filing preliminary objections to the defendant’s preliminary objections, or the defect will be waived, and the court may consider the affirmative defense. Richmond v. McHale, 35 A.3d 779, 782 (Pa. Super. 2012). However, even where the court may consider an affirmative defense at the preliminary objection stage, it will only bar the claim if the affirmative defense is clear from the face of the pleadings. Scavo v. Old Forge Borough, 978 A.2d 1076, 1078 (Pa. Commw. 2009). Here, plaintiff did not file preliminary objections to defendants’ preliminary objections. Therefore, the court may consider conditional privilege as a defense at this stage but may only sustain defendants’ demurrers if it is clear from the face of plaintiff’s amended complaint that conditional privilege bars plaintiff’s claims.

“An occasion is conditionally privileged when the circumstances are such as to lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that facts exist which another sharing such common interest is entitled to know.” Miketic v. Baron, 675 A.2d 324, 329 (Pa. Super. 1996) (quoting Beckman v. Dunn, 419 A.2d 583, 587 (1980)). “Thus, proper occasions giving rise to a conditional privilege exist when (1) some interest of the person who publishes defamatory matter is involved; (2) some interest of the person to whom the matter is published or some other third person is involved; or (3) a recognized interest of the public is involved.” Id. (quoting Beckman, 419 A.2d at 588).

Abuse of a conditional privilege is indicated when the publication is actuated by malice or negligence, is made for a purpose other than that for which the privilege is given, or to a person not reasonably believed to be necessary for the accomplishment of the purpose of the privilege, or includes defamatory matter not reasonably believed to be necessary for the accomplishment of the purpose.

Id.

In this case, Brown argues that his communication to co-workers is conditionally privileged, citing Foster v. UPMC S. Side Hosp., 2 A.3d 655 (Pa. Super. 2010). In that case, the Superior Court held that an employer’s workers’ communication “with each other in connection with the discipline, including termination, of a fellow employee” is conditionally privileged. Foster, 2 A.3d at 664. However, the court clarified that “[t]he workers relaying the purportedly defamatory information must be involved in the disciplinary matter at hand.” Id.

In this case, even if a conditional privilege applies to Brown’s communication to co-workers, it is not clear from the pleadings that he did not abuse that privilege. In her amended complaint, plaintiff avers that “[t]he videotape in question does not show [her] stealing a wallet or any other item.” (Am. Compl. ¶22.) As noted above, at the time of the incident, Brown was the acting branch director of the YMCA. He is also the person who called plaintiff to tell her that she was being fired because the videotape showed her stealing White’s wallet. Because Brown was the acting branch director, and given his stated basis for plaintiff’s firing, it is reasonable to infer that he would not have fired plaintiff without viewing the videotape. Given plaintiff’s averment that the videotape does not show her stealing, it is not clear from the pleadings, therefore, that Brown did not act with malice or negligence'in telling his co-workers otherwise.

In light of the above discussion, the court need not reach Brown and Camasta’s next argument, that their communication to the alleged victim was conditionally privileged, as it is not clear from plaintiff’s amended complaint that their communication to their co-workers is not. In other words, plaintiff’s amended complaint states a cause of action for defamation against Brown and Camasta without even considering their communication to White. For all of the above reasons, although defendants improperly raise conditional privilege as a preliminary objection, and although this defect has been waived, the court is unable to determine, at this stage of the proceedings, that conditional privilege bars plaintiff’s defamation claims against Brown and Camasta.

Defendants next assert that Brown’s statements to the Bethlehem Police Department were subject to an absolute privilege. Even accepting that argument as true, for the reasons outlined above, plaintiff has sufficiently pleaded a cause of action for defamation against Brown based upon his communication to the staff members of the YMCA. Therefore, the court need not reach this issue in ruling on defendants’ demurrer to count II of plaintiff’s amended complaint.

Finally with regard to plaintiff’s defamation claims, defendants argue that plaintiff has failed to state a cause of action based upon YMCA employee Robert Fritz’s communication to fellow maintenance employee, Jim, because “truth is an absolute defense to a defamation claim.” (Defs.’ Br. at 13.) In paragraph nineteen of her amended complaint, plaintiff avers that Fritz told Jim “specific details of the investigation, including specifically that the plaintiff was fired over the phone and that her termination was due to the allegation that [she] stole Kirby White’s wallet.” (Am. Compl. ¶19.) Defendants argue that because plaintiff avers elsewhere in her amended complaint that she was fired over the phone because of the theft allegation, Fritz’s communication was truthful. Thus, defendants argue, Fritz’s communication cannot constitute defamation. While plaintiff avers that she was fired over the phone, she also pleads that she did not steal Kirby White’s wallet. One can reasonably infer from paragraph nineteen of plaintiff’s amended complaint that Fritz told or implied to Jim that plaintiff stole White’s wallet. Therefore, it is not clear and free from all doubt, at this stage of the proceeding, that plaintiff cannot recover based upon Fritz’s communication to Jim. Thus, defendants’ argument is without merit.

Next, defendants argue that plaintiff has not set forth sufficient facts to state a cause of action for false-light invasion of privacy against any of them because plaintiff failed to plead facts that would satisfy the publicity element of the tort.

The tort of [false-light] invasion of privacy involves “‘publicity that unreasonably places the other in a false light before the public.’” Strickland v. University of Scranton, 700 A.2d 979, 987 (Pa. Super. 1997) (quoting Curran v. Children’s Serv. Ctr. of Wyoming County, Inc., 396 Pa. Super. 29, 578 A.2d 8, 12 (1990)). A cause of action for invasion of privacy will be found where a major misrepresentation of a person’s character, history, activities or beliefs is made that could reasonably be expected to cause a reasonable man to take serious offense. Id. “The elements to be proven are publicity, given to private facts, which would be highly offensive to a reasonable person and which are not of legitimate concern to the public.” Id.

Rush v. Phila. Newspapers, Inc., 732 A.2d 648, 654 (Pa. Super. 1999).

The “publicity” element

differs from the “publication” which is required in connection with liability for defamation. “Publicity,” as an element of the tort of invasion of privacy, “means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.” Restatement (Second) of Torts, §652D, comment a.

Curran v. Children’s Serv. Ctr. of Wyo. Cnty., Inc., 578 A.2d 8, 12 (Pa. Super. 1990). “Thus it is not an invasion of the right of privacy ... to communicate a fact concerning the plaintiff’s private life to a single person or even to a small group of persons.” RESTATEMENT (SECOND) OF TORTS §652D, comment a (1977). Additionally, the statement which places another in a false light must be “publicized with knowledge or in reckless disregard of its falsity.” Larsen v. Phila. Newspapers, Inc., 543 A.2d 1181, 1188 (Pa. Super. 1988).

Defendants argue that plaintiff’s amended complaint does not make reference to a communication “to the public at large that would satisfy the” publicity element. (Defs. ’ Br. at 14.) The precise number of individuals required to have heard a statement for publicity to have occurred in a claim of false-light invasion of privacy has not been definitively determined by our courts. In Vogel v. W.T. Grant Co., 327 A.2d 133, 137 (Pa. 1974), our Supreme Court held that publicity to a group of four individuals was not sufficient to constitute publicity. On the other hand, the Superior Court has held that a group of seventeen individuals was “a large enough group that the matter must be regarded as substantially certain to become one of public knowledge.” Harris by Harris v. Easton Pub. Co., 483 A.2d 1377, 1385 (Pa. Super. 1984). Thus, a group of somewhere between five and seventeen individuals appears to be sufficient to satisfy the element of publicity.

In this case, plaintiff alleges that defendants publicized the theft allegations to the police, the victim, and multiple staff members of the YMCA, such that the allegations became common knowledge among all of the employees of the YMCA. While plaintiff specifically identified only three of the YMCA employees, the fact that the information became common knowledge among all of the employees is sufficient to constitute publicity to support the claims for false-light invasion of privacy because it logically follows from the amended complaint that more than those three named individuals are employed by the YMCA. Further, a demurrer may only be sustained when it is certain that no recovery is possible. Accordingly, defendants’ demurrers to counts IV, V, and VI of plaintiff’s amended complaint are overruled.

      . In this case, there is no indication from plaintiff’s amended complaint that Camasta was involved in the firing of plaintiff. Thus, the conditional privilege does not apply to Camasta’s communication to Gaye and other co-workers.

      . Defendants have not raised a preliminary objection that Brown and Camasta’s statements to White are impertinent and should be stricken.

      . Defendants have not asserted a preliminary objection that Brown’s statements to the police are impertinent and should be stricken.

      . Assuming that there is at least one other employee and adding White and the police, the group communicated to is greater than five people.