author: HIGGINS, J.,

text:
    LaBar Village Condominium Association, Inc. v. LaBar Village Community Association, Inc.

      C.P. of Monroe County,
    No. 10211 CIVIL 2009.

      Gregory D. Malaska, for plaintiffs.

      Daniel P Lyons, for defendant.
    March 11, 2013
   HIGGINS, J.,

Now before the court are the exceptions to the master’s report and recommendation filed by the defendant, LaBar Village Community Association, Inc. (“defendant”). The plaintiffs in this suit are LaBar Village Condominium Association, Inc., LaBar Meadows Condominium Association, Inc., David Braithwaite, Barbara Braithwaite and Catherine Fordham (collectively, “plaintiffs”). This case concerns the interpretation of a declaration, recorded in 1990, which governs voting rights and member-fee assessments for a multi-phase planned community known as LaBar Village. The two plaintiff condominium associations, as well as Mr. and Mrs. Braithwaite and Ms. Fordham, have certain representative voting rights on the community’s board and are assessed fees pursuant to the declaration. In part, they ask the court to clarify the obligations of the parties.

In count I, the plaintiffs seek declaratory judgment on the meaning of the declaration’s terms “general common area,” “exclusive common area” and “neighborhood” for purposes of the fee assessment.

In count II, the plaintiffs also seek declaratory judgment that they are entitled to separate representation on the board of directors for each phase-neighborhood, pursuant to certain terms of the declaration.

In count IV, the plaintiffs claim that the defendant breached its fiduciary duty when it improperly designated (or failed to designate) the common areas, and assessed fees against the plaintiffs in contradiction of the terms of the declaration.

For counts III, V and VI neither party has filed exceptions to the special master’s recommendations. We summarize the procedural history as follows:

On October 30, 2009, the plaintiffs filed the instant complaint against the defendant.

On April 29, 2010, we ordered that the parties complete discovery by September 30,2010. On December 14, 2010, we accepted a voluminous, stipulated record filed by the parties.

On January 13, 2011, the plaintiffs filed a motion for summary judgment. On April 5, 2011, we heard oral argument on the plaintiffs’ motion. On July 14, 2011, we denied the plaintiffs motion for summary judgment.

On January 4, 2012, by stipulation of the parties, we appointed James F. Preston, Esq. as special master to issue a report and recommendation for the court. On February 12, 2012, in order to prepare his report and recommendation, the special master toured the property, accompanied by both parties’ attorneys. On July 12 and July 31, 2012, the special master held hearings at which the parties presented evidence and, on August 8, 2012, the special master heard arguments. On September 10, 2012, the special master issued his report and recommendation.

On October 11,2012, the defendant filed its exceptions to the report and recommendation. On October 15, 2012, the plaintiffs filed their response.

On December 3, 2012, we heard arguments. We summarize the facts as follows:

In 1990, Charles Wilson recorded a declaration for a piece of property he was developing called LaBar Village. The declaration for LaBar Village was signed by Mr. Wilson on behalf of LaBar Village Development Company. LaBar Village is a multi-phase planned community which was built up over time. Since 1990, the declaration has continuously governed the different phases of LaBar Village up until the present date.

The phases of the development were given names: Pine Valley, Turtle Cove, Duck Hollow, Sparrow Pointe, Meadows and Cedarwood. Meadows and Cedarwood are condominiums, while Pine Valley, Turtle Cove, Duck Hollow and Sparrow Pointe consist of townhomes. Meadows and Cedarwood have their own separate associations governed by the ‘Master Association’ which is the defendant. The boards of Meadows and Cedarwood, along with condominium unit owners David Braithwaite, Barbara Braithwaite and Catherine Fordham, are plaintiffs in the instant suit.

At LaBar Village’s inception, and continuing for some time thereafter, Mr. Wilson essentially maintained all officer positions associated with the creation and management of LaBar Village. Specifically, we note that Mr. Wilson was the president and secretary of LaBar Village Development Co., the signator and ‘Declarant’ of the Declaration. (N.T. July 31, 2012, 2nd master’s hearing, pg 371.) During his management of LaBar Village, Mr. Wilson sat on the board and appointed two other directors.

Under the terms of the declaration the declarant (in effect, Mr. Wilson) was to determine what was exclusive common area and general common area. All neighborhoods would pay appropriate fees to maintain the general common area, while only specific neighborhoods would pay fees for the exclusive common area. Although necessary to determine the appropriate fees, the declarant never explicitly designated what areas were exclusive and general common area. Instead, the declarant assessed a flat percentage of LaBar village’s total expenses on each neighborhood. These percentages were not tailored to each neighborhood’s actual use or need

In 1997, the declarant rescinded control of the community, after having managed its budget and fee assessments for seven years. LaBar Village’s board of directors then maintained control of the budget and fee assessments until the current date. The declarant’s appointed board members continued on the board until 2007.

In 2007, for the first time, an entirely owner-chosen board was elected. (N.T. July 12, 2012, 1st master’s hearing, pg 235.) These directors unwittingly inherited the suspect budgeting practices of the former boards, believing the previous budgets to be properly prepared. Unbeknownst to them, these budget practices would be the focal point of a coming lawsuit.

In December of2007, David Braithwaite agreed to serve as a reserve study specialist in order to help the defendant’s board plan for future financial needs. (N.T. July 12, 2012, 1st master’s hearing, pg 98.) Upon review of the LaBar Village’s budget, Mr. Braithwaite was concerned with certain charges assessed against condominium owners that he did not believe were for ‘general common areas’ under the terms of the declaration. In September 2008, during the annual budget meeting, he raised his concern that certain expenses should be neighborhood-specific. After mentioning the issue “the room erupted in chaos.” This chaos became the instant suit.

Prior to the suit, the defendant’s board formed a committeeandinvestigatedtheirowngovemingdocuments. They found that the declarant had failed to provide common area designations. In an attempt to remedy the situation, the defendant instructed its committee to investigate what should be exclusive and general common area. The committee presented its reports and the board adopted what they thought was intuitively fair: if an area is used by you, you ought to pay for it. However, this principle was applied in a general way and, like the previous budgets, did not track each neighborhood’s actual use or need.

Essentially, the defendant objects to three parts of the special master’s report and recommendations (“R&R”): (a) the addition of new voting groups; (b) the designations of exclusive and general common area; and (c) the calculation of damages from its breach.

For exception (1), the addition of new voting groups, the defendant argues that this contradicts the express terms of the declaration which says “if the declarant fails to establish voting groups, all units are assigned to one... voting group.” [Exh. K attached to original complaint, 1990 declaration, article III, section 3(b).]

In regards to exceptions (2, 3), common area classifications, the defendant argues that the special master “abused his discretion and/or made a clear error of law” because his recommended classifications are contrary to the declaration, do not consider budgets prepared by the declarant between 1992 and 1996 and do not consider the custom and use of the community in the last twenty years.

Finally, for exception (4) the calculation of damages based on breach of fiduciary duty, the defendant believes the special master abused his discretion by relying on the testimony of David Braithwaite, which did not determine whether the proposed damages were calculated by the appropriate designations of the common areas, and, as an action in equity, inappropriately did not account for past underpayments by the plaintiffs.

The plaintiffs, in part, agree with the defendant that some of the common area designations in the R&R are inappropriate. Specifically, the plaintiffs agree that the community center and community parking lot are general common area, not exclusive common area. In addition, the sewer treatment plants, its infrastructure and roads are general common area. The plaintiffs disagree with the balance of the defendant’s exceptions.

In Pennsylvania, a master’s report and recommendation is to be given the fullest consideration. Taper v. Taper, 939 A.2d 969, 973-74 (Pa. Super. Ct. 2007). This is particularly true when it comes to the question of a witness’ credibility, since the master has the opportunity to observe and assess the behavior and demeanor of the witness. Id. Nevertheless, a master’s report is advisory only and the reviewing court is not bound by it and it does not come to the court with any preponderate weight or authority which must be overcome. Rothrock v. Rothrock, 765 A.2d 400, 404 (Pa. Super. 2000) (internal citation omitted).

Even when a declaration is not a contract, a court, where appropriate, may apply principles related to contract law when examining the declaration. MetroClub Condo. Ass’n v. 201-59 N. Eighth St. Associates, L.P., 47 A.3d 137, 145 (Pa. Super. Ct. 2012) appeal denied, 57 A.3d 71 (Pa. 2012).

In the law of contracts, it is well-established that:

The fundamental rule in contract interpretation is to ascertain the intent of the contracting parties. In cases of a written contract, the intent of the parties is the writing itself.... [I]n determining the intent of the contracting parties, all provisions in the agreement will be construed together and each will be given effect.... [This court] will not interpret one provision of a contract in a manner which results in another portion being annulled.

Lesko v. Frankford Hosp.-Bucks County, 15 A.3d 337, 342 (Pa. 2011) (internal citation, quotation omitted).

Furthermore, “the intention of the parties at the time of contract governs and...such intent must be ascertained from the entire instrument.” Vernon Twp. Volunteer Fire Dept., Inc. v. Connor, 855 A.2d 873, 879 (Pa. 2004); see Buck Hill Falls Co. v. Clifford Press, 791 A.2d 392, 397 (Pa. Super. Ct. 2002) (holding intent at time of formation governs).

In interpreting a contract, extrinsic evidence is limited:

When a written contract is clear and unequivocal, its meaning must be determined by its contents alone. It speaks for itself and a meaning cannot be given to it other than that expressed. Where the intention of the parties is clear, there is no need to resort to extrinsic aids or evidence. Hence, where language is clear and unambiguous, the focus of interpretation is upon the terms of the agreement as manifestly expressed, rather than as, perhaps, silently intended.

Lesko, 15 A.3d at 342 (internal citation omitted, emphasis in original).

Even when the words of a document are unambiguous, the court must still consider the context in which they are written. Id. at 745. To this effect our Supreme Court has stated:

We are not unmindful of the dangers of focusing only upon the words of the writing in interpreting an agreement. A court must be careful not to retire into that lawyer’s Paradise where all words have a fixed, precisely ascertained meaning; where men may express their purposes, not only with accuracy, but with fulness (sic); and where, if the writer has been careful, a lawyer, having a document referred to him, may sit in his chair inspect the text, and answer all questions without raising his eyes.

In re Breyer’s Estate, 379 A.2d 1305, 1309 fn. 5 (Pa. 1977) (internal citation and quotation omitted).

As such, the court may ascertain the intentions of the parties to a written agreement in light of: (1) their language; (2) the nature of their subject matter; (3) the apparent object or purpose of the parties; and (4) the circumstances or conditions surrounding their execution.” See Vernon Twp. Volunteer Fire Dept., Inc., 855 A.2d at 879 (holding same for restrictive covenants).

‘Course of performance’ is a term of art which means “a sequence of conduct between the parties subsequent to formation of the contract during performance of the terms of the contract.” J. W.S. Delavau, Inc. v. E. Am. Transp. & Warehousing, Inc., 810 A.2d 672, 683-84 (Pa. Super. Ct. 2002). The parties’ course of performance is always relevant in interpreting a writing. Atl. Richfield Co. v. Razumic, 390 A.2d 736, 741 fn. 6 (Pa. 1978). However, the “’course of performance’ can only be used to interpret, but not to supplement, the terms of an existing agreement.” J. W.S. Delavau, Inc., 810 A.2d at 684.

When a contract fails to provide for a specific contingency, it is silent, not ambiguous. Seven Springs Farm, Inc. v. Croker, 748 A.2d 740, 744 (Pa. Super. Ct. 2000) aff’d, 801 A.2d 1212 (Pa. 2002). In remedying a contract’s silence, the doctrine of necessaiy implication may be employed:

In the absence of an express provision, the law will imply an agreement by the parties to a contract to do and perform those things that according to reason and justice they should do in order to carry out the purpose for which the contract was made and to refrain from doing anything that would destroy or injure the other party’s right to receive the fruits of the contract.

Agrecycle, Inc. v. City of Pittsburgh, 783 A.2d 863, 868 (Pa. Commw. Ct. 2001) (internal citation omitted).

However, the doctrine may be applied only in limited circumstances to prevent injustice where it is abundantly clear that the parties intended to be bound by the terms sought to be implied. Id.

Mere uncertainty as to the amount of damages will not bar a recovery where it is clear that damages were the certain result of the defendant’s conduct. Standard Pipeline Coating Co., Inc. v. Solomon & Teslovich, Inc., 496 A.2d 840, 846 (Pa. Super. Ct. 1985). Furthermore, damages do not have to be determined with mathematical precision, but only a reasonable degree of certainty. Id. We will now discuss the specific issues raised by the Defendant’s exceptions.

Designation of Exclusive and General Common Areas (Count I)

First, we consider whether the special master’s recommended designations of exclusive and general common area are a proper interpretation of the declaration.

While the declaration does not specifically designate common areas in LaBar Village, Article I defines the terms exclusive and general common area:

Section 10. “Common Area ” shall be an inclusive term referring to both General Common area and Exclusive Common area.
Section 14. “Exclusive Common Area” shall refer to that real and personal property which the Association now or hereafter owns or otherwise holds for the exclusive use and benefit of one or more, but less than all, Neighborhoods, as more particularly described in article II of this declaration.
Section 16. “General Common Area” shall mean all real and personal property which the Association now or hereafter owns or otherwise holds for the common use and enjoyment of all owners.

Article I also defines the groupings of unit owners for purposes of determining appropriate fees:

Section 22. “Neighborhood” shall refer to each separately developed residential area comprised of one o more housing types subject to this declaration, whether or not governed by an additional owners association, in which owners may have common interests other than those common to all Association Members. For example, and by way of illustration and not limitation, each condominium, townhome development, cluster home development, and single-family detached housing development may constitute a separate Neighborhood. In addition, each parcel of land intended for development as any of the above shall constitute a Neighborhood, subject to division into more than one Neighborhood upon development.
Section 23. “Neighborhood Assessments” shall mean assessments levied against the Units in a particular Neighborhood or Neighborhoods to fimdNeighborhood Expenses, as more particularly described in Article X, Section 1 of this Declaration.
Section 24. “NeighborhoodExpenses” shall mean and include the actual and estimated expenses incurred or anticipated to be incurred by the Association for the benefit of Owners of Unites within a particular Neighborhood or Neighborhoods. Which may include a reasonable reserve for capital repairs and replacements, all as may be specifically authorized from time to time by the Board of Directors and as more particularly authorized herein.

(1990 Declaration, exh. K attached to original complaint.)

During the special master’s hearings, Charles Wilson testified that, when he was drafting the documents, he believed that whoever benefited from certain areas should pay for them. After reviewing the declaration’s definitions plaintiff Braithwaite prepared joint exhibit 1.2, an aerial view of LaBar Village, with colored areas showing the plaintiffs’ contentions as to what constituted exclusive common area and general common area. (J. exh. 1.2.) The special master found joint exhibit 1.2 to accurately depict the declarant’s intent.

Here, we think the declaration communicates the drafter’s intent in its plain language. The declaration states that whatever property LaBar Village owns or holds “for the exclusive use and benefit of one or more, but less than all, Neighborhoods” is exclusive common area. Whatever it owns or holds “for the common use and enjoyment of all owners” is general common area. While the document is silent as to which areas are owned or held as exclusive and general common area, these simple terms employ the reader’s common sense. The designations of exclusive and general common area are necessary to decide the continuing rights of the parties. Employing the doctrine of necessary implication, we must consider the drafter’s intent and make a reasonable and just interpretation of the declaration to carry out that intent.

Here, the defendant argues that its budgets between 1992 and 1996 are helpful in determining what is general and exclusive common area. These are helpful, says the defendant, because the declarant was in control of the board during these years and, as the drafter, his intent is paramount in determining the proper interpretation of the declaration. In other words, the defendant claims this is a course of performance which shows the drafter’s intent. However, it is not the declarant’s subsequent intent which is at issue, but the intent at the time of execution. We agree with the plaintiffs where they state: “this entire lawsuit is an interpretive exercise to determine if the past practice is valid...[the past practice] is the last thing that should be taken into consideration in determining how to allocate expenses moving forward.” Pl.’s answer at 2. As has been admitted by the defendant, the declarant failed to follow the method outlined in the declaration for designating general and exclusive common area. The declarant’s failure to properly provide for those designations renders the budgets it controlled from 1992 to 1996 suspect. This poor conduct warrants particular consideration where, as here, we do not have a negotiated agreement between parties. Instead, we have unilateral action in a nonnegotiable setting. As such, in considering the declarant’s failure to abide by the terms of the declaration, we afford the budgets from 1992 to 1996 little weight.

Here, the defendant’s board realized the Declarant failed to properly designate common areas. To remedy this situation, the defendant’s board designated common areas based on use. (N.T. July 12,2012,1st master’s hearing pg 242.) For instance, condo unit owners have used a walking lane around the townhomes and so the board concluded all the condo unit owners must pay for that walking lane. This, apparently, also led the board to charge the condos for some of the landscaping within the townhome areas. Neither were individual contributions considered in determining the fee assessments, the defendants simply employed a flat percentage of each neighborhoods’ estimated use. See Id. at 222. In contrast, plaintiff Braithwaite testified that, as a condo owner, he did not feel he had a right to use the townhome areas. Id. at 113-116. He testified extensively as to what areas he thought were for the use of all or for specific neighborhoods. Mr. Braithwaite prepared the plaintiffs’ colored map (J. exh. 1.2) in accordance with how he felt the areas ought to be designated. Of all the witnesses, the master specifically found that Mr. Braithwaite’s testimony was credible. Accordingly, we afford his testimony special weight. While the witness was not entitled to draw legal conclusions, here, we think that his testimony is helpful to determine the intent of the parties.

Here, Village Drive is admitted by all to be the main road of LaBar Village. As such, it should be general common area because it is for the use and enjoyment of all owners. The unimproved land is simply a natural display which, having no one’s privacy to violate, it is reasonable to infer that these are for everyone in LaBar Village to enjoy as they may. However, the improved land immediately around the townhomes are not for the use and enjoyment of the condominium owners. They are for the townhome owners. We think it fair to infer from the record that the townhome owners would not expect to see condominium owners using their lawn or landscaping. Neither are the loop roads for the use and enjoyment of all; no other person need drive on these roads to get in or out of LaBar Village except those who live off them. While the court must not ignore the purpose or context for which an agreement is drafted, neither is it a proper interpretation to ignore the defined terms of the document. With the exception of the areas agreed upon by the parties, we think the colored map presented in joint exh. 1.2 is a common sense and fair presentation of the declarant’s intended designations of exclusive and general common area.

Furthermore, we are not persuaded by the defendant’s arguments over the double lane boulevard in Duck Hollow. The defendant contends that this was intended to be used as a secondaiy main road for LaBar Village and thus was not for the exclusive benefit of the neighborhood in Duck Hollow. Insofar as that goes, we think the defendant is correct that the declarant intended the road to, eventually, act as a secondary main road for LaBar Village. However, the defendant ignores the language of the declaration where it defines exclusive common area: “exclusive use and benefit of one or more, but less than all, Neighborhoods.” Declaration, section 14 (emphasis added). In other words, an exclusive common area may be for the benefit of Duck Hollow and Sparrow Pointe, etc. but not for the other neighborhoods. We think it plain that the double lane boulevard would be for the use and benefit of Duck Hollow and whatever neighborhood which would be built to have access only through that boulevard. As such the double lane boulevard is, currently, only exclusive common area for Duck Hollow.

Finally, the defendant also raises specific objections to the classification of the “loop roads” in Turtle Cove and Duck Hollow. These roads connect to Village Drive in two places, hence the “loop.” No one but the townhome owners need drive on the loop roads to enter or exit LaBar Village. Thus, they are for the access of the townhomes that are situated on those roads. However, the defendant argues that, from the time of the original trust document before the declaration, an easement by implication was created for all the neighborhoods and so the loop roads could not be classified as exclusive common area. We think the defendant’s argument is in apropos. The common law doctrine of easement by implication does not say much for the declarant’s intent in the declaration. The declaration specifically considers exclusive and general common area expenses, which does not imply it considers that an easement by implication has arisen. While an easement by implication might dispose of access rights, the declaration is dealing with duties of maintenance specifically delegated in a writing. We also agree with the plaintiffs that there appears to be no basis for extending the alleged easement to the other neighborhoods. Consistent with our discussion above, we think the loop roads are exclusive common area to their respective townhome-neighborhoods.

Voting Groups (Count II)

Next, we consider whether we ought to award declaratory judgment that, under the declaration, the plaintiffs are entitled to representation by multiple voting groups to elect members for the community’s board of directors and, to this end, that the defendant is obligated to afford the plaintiffs elections.

Article III, Section 3(b) of the declaration provides:

Voting Groups. The Declarant shall establish Voting Groups for election of directors to the board in order to promote representation on the board of directors for various groups having dissimilar interest and to avoid a situation in which the voting members representing similar neighborhoods are able, due to the number of Units in such neighborhoods, to elect the entire board of Directors, excluding representation of others. Each Voting Group shall be entitled to elect the number of directors specific in article III, section 5 of the ByLaws. Any other members of the Board of Directors shall be elected at large by all Voting Members without regard to Voting Groups.
The declarant shall establish Voting Groups not later than the date of expiration of the Class “B” Control Period by filing with the Association and in the Office of the Recorder of Deeds for Monroe County, Pennsylvania, a Supplemental Declaration identifying each Voting Group and designating the Units within each group. Such designation may be amended from time to time by the Declarant, acting alone, at any time prior to the expiration of the Class “B” Control Period. Until such time as Voting Groups are established by the Declarant, or in the event that the Declarant fails to establish Voting Groups, all Units shall be assigned to the same Voting Group.

1990 declaration (emphasis added).

The declarant, LaBar Development Company, never designated voting groups as required by the declaration. LaBar Village’s directors are currently elected by a single group of the entire community, which fails to give individual neighborhoods effective or consistent representation on the board. (N.T. July 12, 2012, 1st master’s hearing, pg. 130-33.)

The defendant argues that the unambiguous words quoted above clearly establish the drafter’s intent that the defendant not be required to establish voting groups when the declarant has failed to do so. We are constrained to agree.

Here, the declaration goes on at length about the reasons why voting groups should be established, i.e. why a diverse board, consisting of representation by each neighborhood, is needed to prevent problems within the community. By the express language, it is patently obvious the drafter intended the declarant to designate voting groups and that this is what the drafter hoped would happen. We can only speculate that if the declarant had fully carried out its duty, much difficulty could have been avoided. Considering the continuing costs to the parties’ common weal, the defendant might do well to find some legal means to carry out the spirit of the declaration today. However, this consideration does not make the words of the declaration any less clear.

Here, no surrounding circumstances at the time of execution throw a different light on the drafter’s account of what happens should the declarant fail in his duty. The plain purpose of this subsection was to ensure representation on the community’s board, either by multiple voting groups or by one voting group at the very least. The fact that the language of the declaration provides for alternatives evinces the drafter’s intent that the document should govern those alternatives. The declaration states that, upon the declarant’s failure to designate voting groups, the Units shall be consolidated in one voting group. Such is what happened here and it is fully consistent with the intent expressed in the declaration. If the drafter intended some other remedy for the declarant’s failure, it would have been a simple matter to address that concern. For our part, we cannot contradict the letter of a writing in order to pursue its spirit. Accordingly, we will not adopt the special master’s recommendation for count II and we are constrained to find that the plaintiffs are not entitled to multiple voting groups under the declaration.

Breach Of Fiduciary Duty, Improperly Assessed Fees (Count IV)

Now, we consider whether the defendant’s improper assessment of fees resulted in $182,848 in damages to the plaintiffs. We note at the outset that the defendant does not contest the master’s finding that it breached its fiduciary duty to the plaintiffs.

The calculation of damages in this case is somewhat nebulous. Twenty three years ago, the declarant failed to record the designations of common areas which were necessary to calculate fees. Without having proper designations for the common areas, the defendant engaged in an ad hoc system for assessing fees against the plaintiffs. The defendant inherited a broken budgeting system, assumed that it was proper and proceeded with what little information it had. This budgeting system was in place for approximately eighteen years before it came to the attention of the plaintiffs. Full and complete records and an itemized budget were not kept over that time. If they had been, we suppose that this lawsuit might not have been necessary.

The plaintiffs, aware that they have been wronged but lacking the records and common area designations necessary for a very precise estimate, have relied on the defendant’s own budgets. In what we think was a considerable showing of restraint, the plaintiffs altered their estimated figure during the master’s hearings, focusing on the years that the declarant was no longer preparing the budget, i.e. 1997 and afterwards. This reduced the plaintiffs’ estimated damages from $627,667 to $182,848. The plaintiffs limit their request for damages to 1997 and its following years. The defendant now argues that, using 1997 as a base year for what the plaintiffs were rightly required to pay, we ought to calculate backwards and reduce that estimate by $67,794.57. We think the defendant’s argument seeks more precision than the subject allows. The lack of reliability of the defendant’s records is the cause of the plaintiffs’ injury, plaintiff Braithwaite based his calculations on the shift in maintenance responsibility from the townhomes to the condo owners. (N.T. July 31, 2012, 2nd master’s hearing, pg 344); pl.’s exh. 5. By picking 1997 as the year to calculate damages, the plaintiffs basically forgave the defendant for any damages that resulted before 1997. We neither are convinced that the defendant received any damages for the years of 1992-1996, neither do we think it makes sense to now use those years against the plaintiffs.

In the alternative, the defendant also argues that the master had insufficient evidence to conclude 1997 was based on proper designations of exclusive and general common area. The defendant asks us to order an assessment of past budgets based upon our determination of exclusive and general common area. However, that is precisely the breach of fiduciary duty which has caused the plaintiffs’ damages. Essentially, having presented no testimony or evidence by which the defendant could counter its own budgets, the defendant now seeks another determination of damages by arguing its budgets are too unreliable. On the contrary, we think the budgets are reliable enough to assess the damages in this case. As we have said, the damage estimate is based upon the defendant’s budgets in past years. We think it highly unlikely that a third party could go back through the defendant’s records and provide a better estimate of the evolving state of expenses at LaBar Village over the years. For instance, how much money worth of snow-plowing services Duck Hollow actually used in 1999. Instead, we think the determination of damages is reasonably certain under the circumstances.

Finally, the defendant argues that the master improperly estimated certain damages from insurance premiums charged to the plaintiffs. Specifically, the master included in the total damage estimate $37,500 in premiums charged to the plaintiffs. First, the defendant objects to reliance upon the testimony of plaintiff Braithwaite, who is not an insurance agent. However, Mr. Braithwaite testified that his estimate was based on his experience insuring his home in the Meadows condominium. (N.T. July 31,2012, 2nd master’s hearing, pg 356.) We think the credible testimony of Mr. Braithwaite makes this a reasonable estimate. Thus, as far as this part of the defendant’s argument goes, we do not see any merit in the defendant’s contention.

Second, within his exception to the insurance damages, the defendant claims that the master improperly failed to account for the defendant’s insurance payments on behalf of the condominium owners. Prior to the two evidentiary hearings, the defendant had an opportunity to develop testimony and gather other evidence on its payment of insurance premiums. However, the defendant failed to do so. Neither did the defendant ask the master to allow additional time for the defendant to assess the value of those insurance payments. In plaintiff Braithwaite’s testimony, he told the master he was unaware if the defendant had an all-risk insurance policy covering property around the condominium associations. (N.T. July 31,2012,2ndmaster’s hearing, pg 356-57.) The defendant’s property manager, Angela Croffut, gave testimony that the defendant obtained insurance for the parking areas, driveway and landscaping outside the plaintiffs’ condominiums. (N.T. July 31,2012,2nd master’s hearing, pg 393-94.) Ms. Croffut did not give any testimony as to the amount of those insurance payments. See id. The defendant claims that, since breach of a fiduciary duty is a claim in equity, the calculation of damages should have been off-set by the unspecified amount of insurance coverage that it provided for the plaintiffs. We disagree.

Here, the defendant claims a cost which it correctly points out was not accounted for in plaintiff Braithwaite’s estimate. However, the defendant only presented testimony that there was such a cost; it presented no testimony as to what that cost is. If the defendant wanted to successfully raise its insurance payments as an offset to the plaintiffs’ damages, it should have developed that issue at the special master’s hearings. See Gruver v. Gruver, 2006 WL 5229650 (Pa. Com. Pl. Dec. 18, 2006) (denying exception to damage assessment of special master where party failed to provide estimate of fair market value in opposition to opposing party’s estimate before the special master). Now, when the evidentiary hearings are over, the defendant wants us to re-determine the damages because the defendant claims an unspecified amount of money was not accounted for. We decline to do so. As we stated above, the damage determination in this case was somewhat nebulous, but we think the master used sufficient facts to make a reasonable determination under the circumstances. Mathematical precision is not necessary. Furthermore, it seems obvious that there were significant damages to the plaintiffs which remain unaccounted for. We will not act ‘in equity’ to effectively ignore these unknown damages, while granting the defendant’s own request for unknown damages.

ORDER

And now, March 11, 2013, after consideration of the parties’ briefs and following argument on December 3, 2012, regarding the defendant’s exceptions to the special master’s report and recommendation, and no party having filed exceptions to the special master’s recommendations for counts III, V and VI, we hereby order as follows:

1. We adopt the master’s report and recommendation except as otherwise noted below.
2. The defendant’s second and third exceptions to the special master’s recommendation for count I regarding the designation of exclusive and general common area are denied in part and granted in part. We adopt the special master’s recommendation for count I and modify the recommendation as follows:
The community center and its parking lot along with the sewer treatment plant, its related infrastructure and the sewer plant access road shall be designated as general common area and maintained at the expense of all neighborhoods in LaBar Village.
3. The defendant’s exception to the special master’s recommendation for count II is granted. The declaration does not require the defendant to establish multiple voting groups and the single voting group is consistent with the language of the declaration.
4. The special master’s recommendation for count III is adopted. Count III is dismissed.
5. The defendant’s exception to the special master’s recommendation for count IV is denied. The master’s recommendation for count IV is adopted. The defendant is ordered to credit the plaintiffs’ fee assessments in the amount of $182,848.00.
6. The special master’s recommendation for counts V and VI are adopted. The defendant is hereby ordered to credit the plaintiffs’ fee assessments in the amount of 1/3 of the defendant’s total attorney’s fees for this case.
7. The court retains jurisdiction over all questions arising regarding the community plan, until that plan is recorded, as well as questions arising from the neighborhood budgets.

      . Important documents of record include: the transcripts of two hearings conducted by the special master (N.T. for July 12, 2012 and July 31,2012) as well as their exhibits, the “1990 Declaration” attached to the original complaint as Exh. K, and the special master’s report and recommendation (filed Sept. 10, 2012.)

      . A brief discussion of counts III, V and VI is provided in in. 14, infra.

      . As stated above, the plaintiffs did not file exceptions.

      . Previously, the property was governed by a trust agreement.

      . The plaintiffs presented exhibits demonstrating the board’s budget allocations from 1992 until 2012. Pl.’s exh. 5 from 1st master’s hearing. Later, we will discuss how the defendant relies on this exhibit for its argument and how the defendant focuses on the budget allocations between 1992 and 1996.

      . Mr. Braithwaite testified at both special master’s hearings. He demonstrated his careful examination of the LaBar Village’s expenses and governing documents, as well as his considerable care and knowledge in employee management and budgeting. Previously, Mr. Braithwaite was the director of manufacturing and maintenance at Tobyhanna Army Depot where he supervised 3,000 employees with an annual budget over $100 million. (N.T. July 12, 2012, 1st master’s hearing, pg 36.) He was used as a reserve study specialist by the defendant. In the report and recommendation, the special master found Mr. Braithwaite “credible and authoritative.” R&R, findings of fact at 17.

      . The committee had a majority and minority report. The minority report was, in part, written by plaintiff Barbara Braithwaite.

      . The defendant entered four “exceptions.” For purposes of discussion, we consolidate the defendant’s second and third exceptions dealing with the designations of exclusive and general common area.

      . Mr. Braithwaite prepared another map with the “defendant’s View” of what constitutes exclusive and general common area. Because the map accurately reflects the defendant’s contentions in this regard, the defendant did not prepare its own exhibit.

      . Charles Wilson is the president and secretary of LaBar Development Company and he signed the declaration. Exh. K, declaration; see (N.T. July 12,2012, master’s hearing, pg. 76.)

        . see McVicker v. Dennison, 45 Pa. 390, 391 (Pa. 1863) (“We are strongly inclined to believe the work was done in no good spirit, certainly not in what the judge assumed to be the spirit of the contract; but having been done according to the letter of the bargain, it should be paid for according to the letter.”)

      . I.e. $37,500 in insurance overcharges was included in the total estimate of $182,848.


source: Caselaw Access Project

author: WILLIAMSON, J.,

license: Public Domain

text:
    Gordon v. McManus

      C.P. of Monroe County,
    No. 1774 CIVIL 2004.

      Michael D. Collins, for plaintiffs.

      George W. Westervelt, for defendants.
    February 20, 2013
   WILLIAMSON, J.,

This matter comes before us on a motion for summary judgment filed by William and Joann McManus, (hereafter, “defendants”), on September 5, 2012. In their motion for summary judgment, defendants assert that plaintiffs Joseph and Tonia Gordon’s (hereafter, “plaintiffs”) claims must be dismissed because plaintiffs have failed to establish they justifiably relied on defendants’ representations, that they signed releases which did not offer any warranty as to the condition of the property, and that they agreed the sales agreement contained the whole of the agreement without integrating the seller’s property disclosure statement (“SPDS”) or any other representations allegedly made by defendants.

Plaintiffs commenced this action by filing a domplaint on March 16, 2005, alleging the following: defendants committed fraud, fraud by concealment, violation of the Unfair Trade Practices Act and Consumer Protection Law (“UTPCPL”), and negligent misrepresentation. They claim defendants knew of water intrusion problems, the presence of mold related bioaerosols, structural defects, and damage to the residence, all of which they allege existed prior to the sale. Plaintiffs further allege defendants misrepresented the condition of the house in their seller’s property disclosure statement (“SPDS”), as well as made oral representations that the basement was suitable as an additional living space. Plaintiffs seek to either recover damages or obtain rescission regarding their purchase from McManus of a residence located at 145 Big Ridge, Country Club of the Poconos, East Stroudsburg, Monroe County, Pennsylvania.

On June 7, 2005 defendants filed their answer and new matter to plaintiffs’ complaint, as well as a joinder complaint against the home’s builder, Meadow Run Builders, Inc.

On June 10,2011, Fitzgerald defendants filed a motion for summary judgment as to all claims and cross claims, as well as the McManus defendants’ contribution and indemnification claims asserted against them. On June 28, 2012, this court granted the Fitzgerald defendants’ motion for summary judgment.

On November 5, 2012, defendants filed the motion for summary judgment and brief in support thereof that is presently at issue before this court. Plaintiffs filed their response and brief in opposition thereof on November 9, 2012. Plaintiffs contend that defendants knew of repeated occurrences of basement flooding and actively concealed problems with the foundation, the basement, and cracking drywall. Defendants argue that plaintiffs have failed to prove they justifiably relied on defendants’ representations. Defendants contend that plaintiffs signed releases which stated the sellers did not offer any warranty as to the condition of the property, and they agreed that document contained the whole of the parties’ agreement without integrating the SPDS or any other representations made by defendants.

DISCUSSION

When a party is seeking summary judgment, we must review the record in the light most favorable to the non-moving party and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Washington v. Baxter, 719 A.2d 733, 737 (Pa. 1998), citing, Pennsylvania State University v. County of Centre, 615 A.2d 303, 304 (Pa. 1992). Summary judgment is only appropriate and will only be granted in cases that are free and clear from doubt. Id., citing Marks v. Tasman, 589 A.2d 205 (Pa. 1991). Although the record is viewed in the light most favorable to the non-moving party, it is still pertinent that the nonmoving party “adduce sufficient evidence on an issue essential to his case on which he bears the burden of proof such that a jury could return a verdict in his favor.” Id., quoting Ertrel v. Patriot-News Co., 674 A.2d 1038, 1042 (Pa. 1996). Failure to do so will establish that there is no genuine issue of material fact for the jury to determine and entitle the moving party to judgment as a matter of law. Id.

In order to establish fraud a plaintiff must show the following:

“(1) a representation; (2) which is material to the transaction at hand; (3) made falsely with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance.” Blumenstock v. Gibson, 811 A.2d 1029, 1034 (Pa. Super. 2002), quoting Sewak v. Lockhart, 699 A.2d 755, 759 (Pa. Super. 1997) (citations omitted).

Similarly, in order to establish negligent misrepresentation, a plaintiff must show the following:

“(1) misrepresentation of a material fact; (2) made under circumstances in which the declarant ought to have known its falsity; (3) with an intent to induce another to act on it; and (4) which results in injury to a party acting in justifiable reliance upon the misrepresentation.” Bortz v. Noon, 729 A.2d 555, 561 (Pa. 1999), citing Gibbs v. Ernst, 647 A.2d 882, 889 (Pa. 1994).

Additionally, under the UTPCPL, a plaintiff must prove all the same elements as fraud. Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425 (Pa. 2004).

The common element to all of plaintiffs’ claims is justifiable reliance. The justifiable reliance on representations depends on the knowledge of the recipient. If the buyer “knew or should have known the information supplied was false,” the buyer’s reliance is not justifiable. Porreco v. Porreco, 811 A.2d 566, 571 (Pa. 2002), citing Scaife Co. v. Rockwell-Standard Corp., 285 A.2d451 (Pa. 1971). The recipient of a misrepresentation is required to use his senses and is barred from recovery if he “blindly relies upon a misrepresentation the falsity of which would be patent to him if he had utilized his opportunity to make a cursory examination or investigation.” Silverman v. Bell Sav. & Loan Ass’n., 533 A.2d 110, 115 (Pa.Super. 1987).

It is not sufficient, however, to merely assert that a statement is “fraudulent” and that reliance on the statement induced some action on the party’s behalf, nor is it enough to aver that a knowingly false statement was made for the purpose of misleading another into reliance upon it. Blumenstock at 1038; see also Gruenwald v. Advanced Computer Applications, Inc., 730 A.2d 1004, 1014 (Pa. Super. 1999); Sewak, at 759. Accordingly, “[unsupported assertions and conclusory accusations” of fraud are not sufficient to establish the existence of genuine issues of material fact. Id., citing, Gruenwald at 1014.

In real estate transactions specifically, our courts have concludedthat “fraud arises when a seller knowingly makes a misrepresentation, undertakes a concealment calculated to deceive, or commits non-privileged failure to disclose.” Sewak, at 759. Within that definition two distinctive types of fraud arise; “fraud in the execution” and “fraud in the inducement.” See Blumenstock at 1037. The former occurs when a party omits certain representations from the written agreement despite previous discussions and/ or promises that the representations would be included in the agreement. Id., citing Cherry Street Partnership v. Bell Atlantic Properties, Inc., 653 A.2d 663, 666 (Pa. Super. 1995). The latter transpires when the representations are fraudulently made so as to induce the party to enter into the agreement and the buyer subsequently asserts “but for” those representations he would never have entered into the agreement. Id.

The case before this court appears to be a claim of fraud in the inducement. In Blumentstock, the Superior Court reviewed the effect of an integration clause in a real estate transaction when a plaintiff was asserting a claim of “fraud in the inducement,” to determine whether evidence of verbal representations were admissible. In doing so the court relied extensively on the balancing test put forth by the court in LeDonne v. Kessler, 389 A.2d 1123 (Pa. Super. 1978). The necessity of this test arises when material representations are allegedly made prior to the signing of the sales agreement and those representations are either false or misleading. If the signed sales agreement contains an integration clause, the parol evidence rule prevents the buyer from presenting evidence of the verbal representation if said representation was left out of the sale agreement. The question then becomes whether the parol evidence rule renders the false or misleading representations inadmissible and who can enforce the integration clause.

Simply stated, if a verbal representation is made as to the character or quality of the land and/or building conditions and said conditions are reasonably apparent from the inspection of the premises, the parol evidence rule will exclude evidence of the verbal representation if the representation is not included in the written sale agreement and the sale agreement contains an integration clause. See Mancini v. Morrow, 458 A.2d 580, 584 (Pa. Super. 1983) (distinguishing between a damaged septic system which the buyer could not have reasonably inspected, and a water leakage problem that was discovered by the purchaser during the course of inspection the latter of which constituted an observable physical condition rendering any verbal representation of that condition inadmissible.) Therefore, if a party is provided an opportunity to view and inspect the objectionable condition at issue and does not insist on further contractual protection or deletion of an overly broad integration clause, the integration clause in the sales agreement will remain in effect and the parties will be bound to the language of the contract. Id.

In Blumenstock, the plaintiffs viewed the property prior to the signing of the sale agreement and allegedly voiced concern over the fact that two sump pumps were located on the property. Id. at 1032. The concern was then relayed to the seller’s agent who informed the plaintiffs that the sump pumps were only installed as a precautionary measure. Id. The plaintiffs interpreted that representation as meaning that the sump pumps were unnecessary and never ran. Id. The plaintiffs subsequently signed the sale agreement and moved into the home. Id. Soon thereafter, the circuit breaker controlling the sump pumps was interrupted during a period of heavy rain, and by the time the plaintiffs uncovered the problem their basement was covered with several inches of water. Id. The plaintiffs thereafter brought suit against the seller and the seller’s agent arguing that they would not have purchased the property had they known that the sump pumps were actually used from time to time to prevent the basement from flooding. Id.

Building on the analysis used by the court in Mancini, the trial court determined that the plaintiffs were put on notice of an objectionable condition because they conducted a reasonable inspection of the property and saw the sump pumps and inquired about their use. Id. at 1038. Consequently, the trial court ruled that the plaintiffs should have sought to include language regarding the sump pumps or ask to delete the overly broad integration clause before they signed the agreement. Id. Since the plaintiffs failed to do so, the trial court determined that they were bound by the terms of the contract and any verbal representations made before the contract they signed were inadmissible. Id.

In reviewing the matter, the Supreme Court found that the trial court appropriately applied the LeDonne balancing test since it considered the “nature of the purported oral communications, the scope of the integration clause in the agreement of sale, and the express release contained in the Addendum “B” to that agreement.” Id. at 1037. Accordingly, the Supreme Court affirmed the trial court’s ultimate decision that the sellers and the sellers’ agent had no duty to affirmatively aver the functionality of the sump pumps since the buyer had the opportunity to observe the physical condition of the property and make reasonable inferences from the presence and location of the sump pumps. Id. In reaching that decision, the Supreme Court relied on the trial court’s reasoning that the buyers were competent adults who were equipped with enough reasoning and logic to infer from the existence of the sump pumps that the devices might be used to remove any intruding water from the basement. Id. at 1038.

Since they could make the reasonable inference that the sump pumps were used to control any possible water intrusion, the court concluded that plaintiffs unjustifiably relied on the representations made to them and found that plaintiffs should have insisted language be included in the sale agreement that discussed the functional purpose of the sump pumps or request the overly broad integration clause be deleted or modified. Id. at 1038. Because plaintiffs failed to do so, they were barred from presenting evidence of the alleged verbal representations and were bound to the terms of the sale agreement, which included the integration clause. Id. Without evidence of an oral representation that the sump pumps were precautionary, the plaintiffs were unable to satisfy their burden and the defendant was entitled to summary judgment as there were no issues of material fact. Id.

The facts in the present matter are strikingly similar to those in Blumenstock. The plaintiffs were informed of their right to have the home inspected themselves by their agent, Melissa Corea, and were provided a list of several agencies who could perform an inspection of the home. [N/T Melissa Corea dep., 6/25/04, p. 25] An inspection of the property was subsequently conducted by TPA Inspection Services. Plaintiffs were present for that inspection and during that time they also conducted their own inspection of the home. While Mr. Gordon was viewing the basement, he noticed the sump pump and specifically asked the inspector “what exactly is this mechanical device.” [N/T Joseph Gordon dep., 11/20/10, p. 19.] The inspector informed Plaintiffs that the sump pump “was an emergency backup in case of flooding.” [N/T Joseph Gordon dep., 11/20/10, p. 19] Mr. Gordon testified that at the time of the inspection he thought the existence of the sump pump was good in case water infiltration ever occurred in the basement. [N/T Joseph Gordon dep., 11/20/10, p. 20] He admitted, however, that he never questioned why a sump pump was needed if the home did not have a history of flooding as indicated on the SPDS. [N/T Joseph Gordon dep., 11/20/10, p. 20] Furthermore, Mr. Gordon admitted that he never followed up with their real estate agent, Ms. Corea, to determine whether the sump pumps were used routinely and/or relied upon heavily by the sellers. [N/T Joseph Gordon dep., 11/20/10, p. 19]

When asked about the final inspection report written by TPA, Mr. Gordon states that he himself did not read the report but believed it was read by his wife, Mrs. Gordon. [N/T Joseph Gordon dep., 11/20/10, p. 23] In that Report TPA indicated the following: “NOTE! The interior foundation walls had a coat of parging at time of inspect.” [Defendants’ motion for summary judgment, 9/5/12, exhibit V.] There is no indication in the record, however, that plaintiffs questioned the inspector as to the meaning of that language or whether the parging on the walls indicated that there was a material defect in the foundation.

Additionally, plaintiffs were informed, on the day of the TPA inspection, by the defendants’ neighbor that the basement filled with water on numerous occasions. [Bishop Moore dep., 12/13/10, pg. 15-16], [N/T Melissa Corea dep., 6/25/04, p. 16] Upon hearing this information, plaintiffs contacted Ms. Corea and she contacted Fitzgerald, the agent for the defendants, to inquire about any potential water problems. [N/T Melissa Corea dep., 6/25/04, p. 16] Fitzgerald in turn questioned McManus and they stated that the only water infiltration occurred when the home was first being built before the roof had been put on the home. [N/T Melissa Corea dep., 6/25/04, p. 16] Ms. Corea relayed that information to plaintiffs and no other follow up questions were asked. [N/T Melissa Corea dep., 6/25/04, p. 16] While Ms. Corea stated she didn’t recall whether plaintiffs contacted TPA after the inspection was completed to question them about any potential flooding problems, Ms. Corea states that she may have recommended plaintiffs contact TPA and felt that plaintiffs could have “very easily” call[ed] TPA” to discuss the matter. [N/T Melissa Corea dep., 6/25/04, p. 23]

Plaintiffs sought no further information regarding the sump pumps, or flooding, they did not conduct additional inspections, nor, as permitted by the sale agreement, did they terminate the sale agreement. Instead, plaintiffs proceeded to close on the purchase of the property.

The sale agreement contained both a release and an integration clause. The integration clause specifically states the following:

“Unless Buyer and the seller agree otherwise, real estate is sold in its present condition. It is Buyer’s responsibility to satisfy himself or herself that the condition of the property is satisfactory. Buyer may request that the property be inspected, at Buyer’s expense, by qualified professionals to determine the condition of the structure or its components. Areas of concern may include but are not limited to, the following.. .water infiltration basement...” [Defendant’s motion for summaiy judgment, 9/5/12, exhibit M.]

The sale agreement also contains the following release:

25. Release
“Buyer hereby releases, quit claims and forever discharges SELLER, ALL BROKERS, their LICENSEES, EMPLOYEES and any OFFICERS or PARTNERS or any one of them and any other PERS ON, FIRM, or CORPORATION who may be liable by or through them, from any and all claims, losses or demands, including, but not limited to, personal injuries or property damage and all of the consequences thereof, whether now known or not, which may arise from...any defects or conditions on the Property...”
26. Representation
“(B)ItisunderstoodthatBuyerhasinspectedtheProperty before signing this Agreement (including fixtures and any personal property specifically scheduled herein), or has waived the right to do so, and has agreed to purchase the Property in its presented condition unless otherwise state in the Agreement. Buyer acknowledges that Brokers, their licensees, employees, officers or partners have not made an independent examination or determination of the structural soundness of the Property, the age or condition of the components, environmental conditions, the permitted uses, or of conditions existing in the locale where the Property is situated; nor have they made a mechanical inspection of any of the systems contained therein.” [Defendant’s motion for summary judgment, 9/5/12, exhibit U.]

Based on the language contained within the sale agreement and the facts surrounding plaintiffs’ inspection of the home we find that plaintiffs conducted a reasonable inspection of the property, discovered an objectionable condition, and should have been able to infer from the existence of the sump pump on the property that the device was used to help alleviate water infiltration problems. Accordingly, plaintiffs could not have justifiably relied on any representations allegedly made by defendants in the SPDS, or to plaintiffs’ agent, Melissa Corea.

Because we find that plaintiffs could not have justifiably relied on the representations made by defendants, all four of plaintiffs’ claims must fail. We find that the LeDonne balancing test tips in favor of defendants and plaintiffs are precluded from moving beyond the terms of the sale agreement to present any purported representations or omissions. Thus, plaintiffs are unable to establish fraud as they are precluded from presenting evidence of a representation, which must be present to prove the existence of fraud. In failing to present facts establishing fraud, plaintiffs’ claim of violation of the UTPCPL cannot be met either. Plaintiffs raised the issue of violation of the Real Estate Seller’s Disclosure Act of 68 Pa. C.S.A. §7101; however, this cause of action was not raised in defendants’ complaint and cannot be considered in this motion for summary judgment. It is noted that the plaintiffs have since filed a motion to amend their complaint to add a claim under 68 Pa. C.S.A. §7101, which we have ruled upon simultaneously with this matter. Consequently, we conclude that summary judgment is appropriate and grant defendants’ motion for dummary judgment against the plaintiffs and for the McManus defendants.

ORDER

And now, February 20, 2013, the motion for summary judgment of defendants, William McManus and Joann McManus, against the plaintiffs is granted. The plaintiffs’ suit is dismissed.

      . Reference to the testimony from Melissa Corea’s deposition will be referred to as [“N/T Melissa Corea dep., 6/25/04, p._.”]

      . Reference to the testimony from Joseph Gordon’s deposition will be referred to as [“N/T Joseph Gordon dep., 11/20/10, p._.”]

      . Reference to the testimony from Bishop Moore’s deposition will be referred to as [“N/T Bishop Moore dep., 12/13/10, p._.”]


author: PICCIONE, J.,

text:
    Cornish v. Scott Township

      C.P. of Lawrence County,
    No. 10879 of 2009, C.A.

      Howard Murphy, for plaintiff.

      Kevin S. Burger, for defendants Amy Braden and Inter-County Horseman’s Association Mary Ann C. Acton, for defendants William Fuchs and Western Pennsylvania Quarter Horse Association.

    April 5, 2013
   PICCIONE, J.,

Before the court for disposition is defendants’, Amy Braden, individually and as President of Inter-County Horseman’s Association and Inter-County Horseman’s Association, motion for summary judgment. The current action arises from an accident occurring at a horse event hosted by defendant, Inter-County Horseman’s Association. Inter-County Horseman’s Association leased show grounds from the Western Pennsylvania Quarter Horse Association on Harlansburg Road, New Castle Pennsylvania to host the three day event. The show grounds are comprised of two adjacent lots. The back portion of the show grounds is owned by the Western Pennsylvania Quarter Horse Association, and the front portion is owned by Scott Township Volunteer Fire Department. The Western Pennsylvania Quarter Horse Association rents the front lot from the Scott Township Volunteer Fire Department.

Plaintiff, Renee L. Cornish (hereinafter, “plaintiff’), avers in the complaint that she attended the horse event on June 16, 2007. When she arrived at the show grounds, plaintiff seated herself on bleachers that surround the horse arena. The bleachers were positioned upon cinder blocks. After plaintiff was seated, a heavy set woman approached the bleachers and sat to plaintiff’s left. Shortly thereafter, the heavy set woman stood, which caused the bleacher to shake. As a result plaintiff was dislodged from her seat. Plaintiff then fell headfirst to the ground. Plaintiff claims the bleachers were not properly maintained by Scott Township, the Scott Township Volunteer Fire Department, Amy Braden, Individually and as President of Inter-County Horseman’s Association; Inter-County Horseman’s Association (hereinafter “Inter-County”), William Fuchs, Individually; and as President of Western Pennsylvania Quarter Horse Association, and the Western Pennsylvania Quarter Horse Association (hereinafter “WPQHA”). Plaintiff avers that defendants knew or had reason to know of the defective condition of the bleachers. Plaintiff additionally argues that defendants failed to properly inspect, maintain and secure the bleachers, and because of defendants’ negligence suffered injuries.

On July 6,2009, plaintiff filed the instant action against the above named defendants, claiming that the negligent behavior of the defendants caused plaintiff to sustain severe injuries to her nervous system and legs. Judgment was entered in favor of defendants S cott Township and S cott Township Volunteer Fire Department on August 1, 2012. Defendants, Amy Braden, individually and as President of Inter-County Horseman’s Association, and Inter-County, filed the instant motion for summary judgment on November 28, 2012. Argument was held before this court on February 25, 2013. At the time of argument, all remaining parties consented to removing defendants Amy Braden, individually, and Josh Fuchs, individually, from this action. Consequently, the only remaining defendants in the case are Amy Braden, as President of Inter-County Horseman’s Association; Inter-County Horseman’s Association; William Fuchs, as President of Western Pennsylvania Quarter Horse Association; and WPQHA. Inter-County’s motion for summary judgment has been adequately argued and briefed by the parties and is presently before the court for a determination.

Under Pennsylvania law, the standard for summaiy judgment is set forth by Rule 1035.2 of the Pennsylvania Rules of Civil Procedure. The Rule states as follows:

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

Pa.R.C.P. 1035.2.

The moving party bears the burden of proving that no genuine issue of material fact exists. Rush v. Philadelphia Newspapers, Inc., 732 A.2d 648, 650 (Pa. Super. 1999). In determining whether summary judgment is appropriate, the trial court is required to view the record in a light most favorable to the non-moving party, and “all doubts as to the existence of a genuine issue of material fact must be resolved in favor of the nonmoving party.” P.J.S. v. Pennsylvania State Ethics Comm’n, 732 A.2d 174 (Pa. 1999) (citing Kapres v. Heller, 640 A.2d 888 (Pa. 1994)). Summary judgment is proper only when the uncontroverted allegations of record and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. Potter v. Herman, 762 A.2d 1116, 1117 (Pa. Super. 2000).

Defendant Inter-County argues it is entitled to summary judgment for two reasons. First, because it was not a “possessor” of the bleachers. Second, Inter-County is not liable for any latent defects exhibited by the bleaches of which it did not have knowledge or could not have been discovered through reasonable inspection. For the following reasons, Inter-County’s motion for summary judgment is denied.

A party is subject to liability for physical harm caused to an invitee if: 1) he knows of or reasonably should have known of the condition and the condition involves an unreasonable risk of harm; 2) he should expect that the invitees will not realize it or will fail to protect themselves against it; and 3) the party fails to exercise reasonable care to protect the invitees against the danger. Restatement (Second) of Torts § 343 (1965). This section of the Restatement has been adopted by the Pennsylvania courts. See Palenscar v. Michael J. Bobb, Inc., 266 A.2d 478 (Pa. 1970); Bowman v. Fretts & Leeper Construction Company, 322 A.2d 719 (Pa. Super. 1974).

In order for the party to be liable, it must first be a “possessor” of land. In order for a party to be a “possessor” of land, it must fit into one of the following descriptions: it must be in occupation of the land with the intent to control it; it must have been in occupation of the land with intent to control it if no other party has done so subsequently; or it is entitled to immediate occupation if neither of the other alternatives apply. Restatement (Second) of Torts § 328E (1965). The question of whether a party is a “possessor” of land is a determination to be made by the trier of fact. Blackman v. Federal Realty Inv. Trust, 664 A.2d 139, 142 (Pa. Super. 1995) (referencing Leichter v. Eastern Realty Company, 516 A.2d 1247, 1249 (Pa. Super. 1986)). Id., This factual determination is based upon the resolution of two issues: whether the party holds an easement, and, if so, what manner does the party holding the easement exercise the rights established thereunder. Id. at 1250. Only after this determination is made can the more crucial inquiry of whether the “possessor” owes a duty of care be reached. Id.

Instantly, the record establishes that defendant Inter-County leased the show grounds from defendant WPQHA. A Grounds Rental Agreement was executed between defendant Inter-County and defendant WPQHA to memorialize this lease. Under this agreement, defendant Inter-County had the exclusive right to use the show grounds from June 15, 2007 through June 17, 2007. Although the bleachers in question were not expressly identified in the grounds rental agreement between defendant Inter-County and defendant WPQHA, other areas within the show grounds were specifically excluded from the lease. Additionally, the agreement establishes that defendant WPQHA furnished a Grounds Representative, “who shall provide services ... to ... [defendant Inter-County] during the time that [defendant Inter-County] occupies the show grounds. The agreement additionally provides that Inter-County is responsible for paying the Grounds Representative directly for services rendered during the lease.

After carefully reviewing the grounds rental agreement, the court finds that there is insufficient evidence to establish that either defendant Inter-County or defendant WPQHA maintained exclusive possession and control over the show grounds during the June 2007 horse event. Because a determination of which party maintained exclusive possession and control is a material fact in establishing liability, the court cannot resolve defendant Inter-County’s motion for summary judgment. Further, because this court cannot determine whether Inter-County was in possession of the show grounds on June 16, 2007, it is premature to address Inter-County’s assertion that it is not liable for plaintiffs injuries because it did not have notice of the defect. For the foregoing reasons, Inter-County’s motion for summary judgment is denied.

ORDER OF COURT

And now, April 5, 2013, with this matter being before the court on February 25, 2013 for argument on defendants’, Amy Braden, individually and as President of Inter-County Horseman’s Association, and Inter-County Horseman’s Association, motion for summary judgment, with Howard Murphy, Esquire, appearing and representing the plaintiffs; Kevin S. Burger, Esquire, appearing and representing defendants Amy Braden, Individually and as President of Inter-County Horseman’s Association and Inter-County Horseman’s Association; and Mary Ann C. Acton, Esquire, appearing and representing defendants William Fuchs, Individually and as President of Western Pennsylvania Quarter Horse Association and Western Pennsylvania Quarter Horse Association, and after having considered the arguments made by counsel as well as their respective briefs, it is hereby ordered and decreed as follows:

1. Defendants’, Amy Braden, individually and as President of Inter-County Horseman’s Association, and Inter-County Horseman’s Association, motion for summary judgment is denied pursuant to the attached opinion.

2. Consistent with the stipulation presented by the parties at the time of argument on February 25, 2013, defendants Amy Braden, individually, and William Fuchs, individually, are hereby removed as a party defendant to this action.

3. The Prothonotary shall properly serve notice of this order of court and attached opinion upon counsel of record for the parties.

      . The grounds rental agreement reflects rental dates June 15-16-17, 2006. However, the agreement was executed by defendant Amy Braden, on April 18,2007, and other evidence establishes that the grounds rental agreement was for June 15,2007 through June 17,2007.


author: OVERTON, /.,

text:
    Stanford v. Moore

      Dora R. Garcia and Jeffry S. Pearson, for plaintiffs

      Philip A. Ryan, for defendants
    March 14, 2013
   OVERTON, /.,

MEMORANDUM OPINION PURSUANT TO Pa. R.A.P. 1925(b)

This matter is before the appellate court in response to the order reproduced below, issued on December 10, 2012.

Upon due consideration of the post-verdict motions of plaintiff, and any response thereto, it is hereby ordered that the motions are denied.

Roger Stanford & Edith Stanford filed an appeal.

FACTS

Brian Moore (hereinafter “defendant”) testified that on November 3, 1997, he was traveling on Southbound Interstate 95 and that due to heavy traffic (and to avoid sitting in it) he decided to follow several other cars and that he saw were backing down the Interstate 95 entrance ramp. (N.T. 11/20/2012 atp. 55-56).

Once at the bottom of the entrance ramp, he made a three-point turn after he saw the car in front of him do it. He then waited behind that car to cross Bartram Avenue. Once the car in the front of him started to cross he immediately followed behind. However, the car in front of the defendant stopped and started to reverse and at that point the defendant had nowhere to go because there was a car behind him. (N.T. 11/20/2012 at p. 58). The defendant’s car was positioned in a way in which it completely blocked one of the northbound lanes on Bartram Avenue and partially blocked the other. The defendant testified that he did not see Rodger Stanford’s (hereinafter “appellant”) car as it approached. He only heard the screeching from the breaks and when he looked to his left the appellant’s car collided with his. (N.T. 11/20/2012 at p. 59-60).

The appellant testified that the time period from when the car in front of the defendant crossed the northbound lanes of Bartram Avenue to the time when the defendant attempted to cross the northbound lanes was only matter of seconds. The appellant further testified that given the short period of time he did not have enough time to come to a complete stop to avoid the collision (N.T. 11/20/2012 at p. 77-78).

PROCEDURAL HISTORY

On October 19, 1999, Rodger and Edith Stanford (“Appellants”) filed a complaint for negligence and loss of consortium against defendants, Brian and Michele Moore (“defendants”). The appellants alleged that the defendant Mr. Moore’s negligence was the cause of a car accident that occurred on November 3, 1997 in which appellant Mr. Stanford was injured.

On November 26, 2012, a jury returned a verdict in favor of the appellant Mr. Stanford for the amount of five thousand ($5000.00) dollars. On December 10, 2012, this court denied the appellants’ post-trial motion. On January 9, 2013, appellants filed a timely appeal. Statements of matters complained of on appeal were requested and properly tendered on February 1, 2013. Appellants raised the following issues in its statement of matters complained of on appeal pursuant to Pa. R.A.P. 1925 (b):

1. Under the facts, the law and the statements made by defendant Brian Moore, who admitted fault, a directed verdict should have been entered for the plaintiffs.
2. Under the facts and the law, no witness, not even the defense medical expert denied that plaintiff-husband was seriously injured in the accident.
3. The trial court erred and abused its discretion in allowing the issue of causation to go to the jury.
4. The trial court erred and abused its discretion in allowing the issue of liability to go to the jury.
5. The jury should have been charged as to assessment of damages only.
6. The trial court erred and abused its discretion in limiting the plaintiff’s lost of consortium claim.
7. The trial court erred and abused its discretion in charging the jury with regard to a phantom vehicle where there was no evidence the phantom vehicle did anything to contribute to the accident.
8. The trial court erred in failing to sanction defendants for their discovery defaults. Despite court orders requiring that they do so, defendants failed to provide complete responses to plaintiff’s discovery requests and failed to provide proper responses to the plaintiffs’ supplemental expert witness discovery. In such circumstances, sanctions should have been imposed against defendants.
9. The trial court erred in allowing defendants’ medical expert to testify. Plaintiffs could not meaningfully participate in the videotaped deposition of this medical expert due to the defendants’ failure to provide complete expert witness discovery or, alternatively, to produce the witness for preliminary interrogation on the subject matter of plaintiffs’ interrogatories. This prejudice, occasioned by the defendants’ discovery contempt, warranted preclusion of the testimony of defendants’ medical expert.
10. The verdict was against the weight of the evidence, as the circumstances of the accident as testified to by the witnesses clearly demonstrated that plaintiff sustained serious permanent injuries as a result of the accident and was entitled to substantial damages.
11. The trial court erred in refusing to require the defense medical expert to produce records from his prior defense examinations, as this material was properly requested by plaintiffs in discovery.
12. The jury’s verdict is contrary to the evidence and shocking the conscience in light of the serious and permanent nature of the plaintiff-husband’s injuries such that a new trial limited to the issue of damages is required.
13.The trial court erred and/or abused its discretion in precluding and/or limiting plaintiff-husband’s wage loss evidence and his ultimate need to retire due to his injuries.
14. The trial court erred and/or abused its discretion in refusing to permit highway patrol officer Alvin Dill to testify regarding the scene of the accident; the reckless nature of the defendant’s conduct, the demeanor of plaintiff at the scene of the accident and his complaints and the severity of his injuries, and his observations of the plaintiff’s deteriorating condition over time.
15. The trial court erred in sending a verdict slip out with the jury that asked the jury to decide issues of liability and causation that had already been conclusively resolved against the defendant by the evidence.
16. The plaintiff-husbands injuries were serious, substantial, disabling and permanent and warranted a substantial verdict far in excess of the meager amount awarded by the jury.

This opinion is offered in response to said appeal.

DISCUSSION

Appellants’ claims are discussed in turn and are without merit.

A. Whether, under the facts, the law, and the statements made by defendant Brian Moore, who admitted fault, a directed verdict should have been entered for the plaintiffs.

Appellants’ claim that under the facts, the law, and the statements made by defendant Mr. Moore, a directed verdict should have been entered for the appellants is without merit. “A directed verdict can properly be granted by a court only if the facts are clear and free from doubt. In ruling on a motion for directed verdict, a court must ‘accept as true all facts and proper inferences which tend to support the contention of the party against whom the motion has been made and must reject all testimony and inferences to the contrary.’ the outcome of the case.” Person v. C.R. Baxter Realty Co., 490 A.2d 910, 911 (Pa. Super. 1985).

Accepting as true all facts and proper inferences in favor of the defendants, this court determined that the facts regarding defendant Mr. Moore’s alleged negligence were not clear and free from doubt. The appellants had the burden to prove that defendant Mr. Moore was negligent and that his negligence was a factual case in bringing about the alleged harm and damages to the appellants. There is evidence in the record that appellant Mr. Stanford testified in a previous uninsured motorist hearing that there was a phantom vehicle involved in this accident and that that vehicle was alleged to have caused the accident. Accepting this as true, this evidence raises an issue with regard to the defendant Mr. Moore’s negligence and whether it caused the alleged harm to the appellants. As result, a directed verdict would have been improper in this circumstance. Therefore, this claim is without merit.

B. Appellants’ 2nd and 16th claims are insufficient to enable meaningful review.

Appellants’ 2nd and 16th claims are insufficient to enable meaningful review. “When a court has to guess what issues an appellant is appealing, that is not enough for meaningful review. When an appellant fails adequately to identify in a concise manner the issues sought to be pursued on appeal, the trial court is impeded in its preparation of a legal analysis which is pertinent to those issues. In other words, a Concise Statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no Concise Statement at all.” Comm. v. Dowling, 778 A.2d 683, 686 (Pa. Super. 2001) (citations omitted). Consequently, those issues contained in a vague Rule 1925(b) statement will be deemed waived on appeal. Id.

Appellants’ claims are vague. In each claim the appellants fails to articulate a clear and concise alleged error by this court. Further, appellants appears to be attempting to re-argue factual determinations made by the jury. Therefore, these claims do not enable meaningful review and should be deemed waived.

C. In claims 3, 4, 5 and 15 appellants alleged that the jury should only have been charged as to the assessment of damages and that this court erred and abused its discretion by allowing the issue of liability and causation to the jury.

Appellants’ claims appear to be built solely upon their opinion that the evidence conclusively resolved the issues of liability and causation against the defendants. For the reasons stated above in section A, these claims are without merit. Further, appellants’ opinion of what the evidence conclusively resolved is of no moment. It has been repeatedly held that “it is within the sole province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced.” Commonwealth v. Sample, 468 A.2d 799, 803 (Pa. Super. 1983). Therefore, once this court decided that the facts regarding liability and causation were not clear and free of doubt to grant a directed verdict, it was then the task of the fact finder to make factual determination regarding those issues.

Thus, this court’s determination to allow those issues to go to the jury was not an “overriding misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality” as to amount to an abuse of discretion. Commonwealth v. Flamer, 53 A.3d 82, 86 (Pa. Super. 2012) (citation omitted). Therefore, these claims are without merit.

D. Whether the trial court erred and abusedits discretion in limiting the plaintiff’s lost of consortium claim.

Appellants’ claim that this court erred and abused its discretion in limiting appellant Mrs. Stanford’s lost of consortium claim is without merit. For reasons outside of this court’s knowledge and control, appellant Mrs. Stanford did not put forth any evidence to support a loss of consortium claim. Appellant Mrs. Stanford’s inaction was not a result of any order or direction from this court. Therefore, this claim is without merit.

E. Whether the trial court erred and abused its discretion in charging the jury with regard to a phantom vehicle where there was no evidence the phantom vehicle did anything to contribute to the accident.

Appellants’ claim that this court erred and abused its discretion in charging the jury with regard to a phantom vehicle where there was no evidence the phantom vehicle did anything to contribute to the accident is without merit. The record reflects that on December 16, 2002, appellant Mr. Stanford testified in a previous uninsured motorist hearing that there was a phantom vehicle involved and the phantom vehicle probably caused the accident and not defendant Mr. Moore. Taking that evidence into account, this court’s determination to charge the jury with regard to the phantom vehicle was not an “overriding misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality” as to amount to an abuse of discretion. Commonwealth v. Flamer, 53 A.3d 82, 86 (Pa. Super. 2012) (citation omitted). Moreover, counsel for the parties agreed to the verdict sheet and inclusion of the phantom vehicle for apportionment pursuant to the comparative negligence statute. Therefore, this claim is without merit.

F. Whether the trial court erred in failing to sanction defendants for their discovery defaults. Despite court orders requiring that they do so, defendants failed to provide complete responses to plaintiff's discovery requests and failed to provide proper responses to the plaintiffs’ supplemental expert witness discovery.

Appellants’ claim that this court erred in failing to sanction defendants for their discovery defaults is without merit. Discovery matters are dealt with pretrial and in accordance with the case management directives established at the beginning of the case. Appellants’ failed to file the appropriate pretrial motion or make an oral motion requesting any possible sanctions in this matter. Therefore this claim is without merit.

G. Whether the trial court erred in allowing defendants ’ medical expert to testify. Plaintiffs could not meaningfully participate in the videotaped deposition of this medical expert due to the defendants 'failure to provide complete expert witness discovery or, alternatively, to produce the witnessfor preliminary interrogation on the subject matter ofplaintiffs ’ interrogatories.

This claim is without merit and should be deemed waived. Appellants’ failed to object during trial to the videotaped deposition of the defendants’ medical expert. It is well settled in Pennsylvania that an appellant must make a timely objection to improprieties to preserve one’s claim for post-trial or appellate review. Comm. v. Lewis, 523 A.2d 817 (Pa. Super. 1987). Therefore, this claim is without merit.

H. In claims 10 and 12 the appellant appears to be challenging the weight of the evidence.

“The general rule in this Commonwealth is that a weight of the evidence claim is primarily addressed to the discretion of the judge who actually presided at trial. [T] he authority of the trial judge to upset a verdict premised upon a weight claim is narrowly circumscribed. A trial judge cannot grant a new trial “because of a mere conflict in testimony.” Armbruster v. Horowitz, 813 A.2d 698, 702 - 3 (2002) (citation omitted). Instead, “a new trial should be granted only in truly extraordinary circumstances, i.e., ‘when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. ” Id. at 703 (emphasis original) (citation omitted).

As stated, this court’s authority to upset a jury’s verdict is narrowly circumscribed. While there is conflicting testimony on whether there actually existed a phantom vehicle, that alone cannot be a basis for this court to grant a new trial. Further, while the appellants may believe that Mr. Stanford’s injuries were substantial, that was a factual determination to be made by the finder of fact. This case is not one where the appellant Mr. Stanford put forth uncontroverted evidence regarding the nature and extent of his injuries. Both, the appellants and defendants presented expert medical testimony to support their respective positions regarding appellant Mr. Stanford’s injuries. It was then the jury’s job to weigh that evidence as they deemed appropriate. Thus, the jury’s verdict was not so contrary to the evidence as to shock one’s sense of justice. Therefore, this claim is without merit.

I. Whether the trial court erred in refusing to require the defense medical expert to produce records from his prior defense examinations, as this material was properly requested by plaintiffs in discovery.

For the reasons stated above in section F, this claim is without merit.

J Whether the trial court erred and/or abused its discretion in precluding and/or limiting plaintiff husband’s wage loss evidence and his ultimate need to retire due to his injuries.

Appellants’ claim that this court erred and/or abused its discretion in precluding and/or limiting plaintiff husband’s wage loss evidence is without merit. Appellant Mr. Stanford testified at some length regarding his employment history and past salary. This evidence was presented uninterrupted by this court or by the defendants via objection. Therefore, this claim is without merit.

K. Whether the trial court erred and/or abused its discretion in refusing to permit highway patrol officer Alvin Dill to testify regarding the scene of the accident; the reckless nature of the defendant’s conduct, the demeanor ofplaintiff at the scene of the accident and his complaints and the severity of his injuries, and his observations of the plaintiff’s deteriorating condition over time.

Appellants’ claim that this court erred and/or abused its discretion in refusing to permit highway patrol officer Alvin Dill to testify regarding the scene of the accident; the reckless nature of the defendant Mr. Moore’s conduct, the demeanor of appellant Mr. Stanford at the scene of the accident and his complaints and the severity of his injuries, and his observations of the plaintiff’s deteriorating condition over time is without merit.

It should be made clear that appellants’ reason for wanting to call Office Dill to testify as stated in his 1925(b) statement is different than appellants’ counsel reason for wanting to call Office Dill offered at trial. At trial, appellants’ counsel stated to this court that Office Dill was being called to testify as to what he heard the defendant Mr. Moore say at the scene of the accident, to reinforce the idea that the defendant Mr. Moore admitted fault to the responding officer. This reason is the one in which this court made its determination on. Appellants’ position in their 1925(b) statement was never presented to this court, thereby effectively waiving this claim.

Further, for the sake of argument, this court’s determination to prevent Office Dill from testifying, based on appellants’ counsel’s rationale offered at trial, was not an abuse of discretion. The decision of whether or not to admit evidence is committed to the sound discretion of the trial court and will only be reversed upon a showing that the trial court clearly abused its discretion in admitting evidence. See Commonwealth v. Kennedy, 959 A.2d 916, 923 (Pa. 2008) (Citing Commonwealth v. King, 721 A.2d 763, 772-773 (1998)). “An abuse of discretion is not merely an error in judgment, but an ‘overriding misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence or the record.” Commonwealth v. Flamer, 53 a.3d 82, 86 (Pa. Super. 2012) (citation omitted).

In addition, it should be made clear that Officer Dill was not the responding officer nor did he prepare any reports. As counsel for the appellants stated, Office Dill’s testimony would have served to reinforce what defendant Mr. Moore said to the responding officer regarding the cause of the accident. Testimony from Officer Dill regarding the conversation between defendant Mr. Moore and the other officer or regarding that other officer’s reports would have been hearsay not subject to any exception to the rule. If the appellants sought to have defendant Mr. Moore’s conversation with the responding officer or that officer’s report introduced, the appellants could and should have called that officer to testify. Therefore, this court’s determination to not allow Officer Dill to testify was not “an overriding misapplication of the law, law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality.” Id.

CONCLUSION

The court’s order dated December 10, 2012, denying appellants’ post-trial motion should be affirmed.

      . See N.T. 11/20/12 at p. 132.

      . “In a claim for loss of consortium, the losses alleged are personal to the uninjured spouse and arise from the deprivation of the injured spouse’s society and services. It is well-settled that the claim is derivative, emerging from the impact of one spouse’s physical injuries upon the other spouse’s marital privileges and amenities.” Darr Constr. Co., v. Workmen’s Comp. Appeal Bd., 715 A.2d 1075, 1080 (Pa. 1998). Appellant Mr. Stanford testified regarding his injuries and the impact they had on him. However, given that a loss of consortium claim is separate and brought by the uninjured spouse, appellant Mrs. Stanford had the burden to put on evidence to show how her marriage privileges and amenities have been affected by appellant Mr. Stanford’s injuries.

      . This court first mentioned the loss of consortium claim to appellants’ counselor during the charging conference that occurred at the conclusion of closing arguments. Counsel was informed that the loss of consortium charge would not be given and counsel offered no objection. (N.T. 11/26/12 at p. 47).

      . “[I]t is within the sole province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced.” Commonwealth v. Sample, 468 A.2d 799, 803 (Pa. Super. 1983) (emphasis added).

      . See N.T. 11/20/12 at p. 69-108.

      . See N.T. 11/20/12 at p. 67.

      . It is also questionable whether Officer Dill would have been in a position to testify regarding the things the appellant now argues in his 1925(b) statement. As the second officer on the scene and not a witness to the accident, any testimony by Office Dill regarding the alleged reckless nature of the defendant’s conduct would have been completely speculative. Further, there was no offer of proof that Officer Dill was qualified to make an opinion, as a police officer, regarding the appellant’s deteriorating condition over time.