author: BUTTS, /.,

text:
    Commonwealth v. Tilburg

      C.P. of Lycoming County,
    No.
    Oct. 2, 2014
   BUTTS, /.,

On April 16, 2014, the defendant filed an omnibus pretrial motion. A hearing on the motion was held on July 15,2014.

I. Background

On December 21, 2013, around 12:30 A.M., Pennsylvania State Police Trooper Adam Kirk (Kirk) was operating an unmarked police car on Market Street in Williamsport, Pennsylvania. Kirk observed a red Ford car pull out of a parking spot on Market Street. Kirk did not see the car’s turn signal as it pulled out of the spot. The car began to travel in the opposite direction as Kirk, so Kirk made a U-tum and followed the car about a half of a mile to an entrance ramp of Interstate 180. While following the car, Kirk did not observe any erratic driving. The driver used a turn signal to get on the entrance ramp, where Kirk stopped the car. During the preliminary hearing, Kirk testified that he did not stop the car immediately because there was no shoulder on the section of Market Street.

Kirk observed a driver and a passenger in the car. He identified the driver as David Tilburg (defendant). Kirk noticed that the defendant had glassy blood shot eyes. He also noticed a strong odor of alcoholic emitting from the car. Kirk asked the defendant where he was coming from. The defendant said that he was at work. Kirk asked the defendant how much he had to drink that night, and the defendant responded that he had had one drink. Kirk then asked the defendant to get out of the car and preform field sobriety tests.

Before administering the tests, Kirk asked the defendant if he was taking any medication or had any medical conditions. The defendant said that he took Tylenol with codeine but had not taken it since 5:00 P.M. on December 20, 2013. Kirk asked the defendant if he had any physical problems. The defendant did not mention any physical problems. While the defendant was walking to the front of Kirk’s car, Kirk noticed that he had “a stumbled stagger in his leg.” Kirk also noticed that the defendant put his hand on the car fender. Kirk believed the defendant did this to steady himself. Kirk explained the horizontal nystagmus test, and the defendant said he understood the test. Kirk administered the test and determined that the defendant did not complete it to satisfaction. Kirk explained the walk and turn test, and the defendant said that he understood it. Kirk administered the test and determined that the defendant did not complete it to satisfaction. Kirk explained the one-leg-stand test, but the defendant said he could not preform the test because he had arthritis in his feet. Kirk did not administer the one-leg-stand. Based on his training and experience, Kirk determined that the defendant was incapable of driving safely. He arrested the defendant and took him to the Lycoming County DUI Processing Center.

At the DUI Processing Center, the defendant was asked questions by Officer Kontz (Kontz) of the Williamsport Bureau of Police. The defendant was videotaped as he answered Kontz’s questions. The following is a recap of the videotape.

Kontz began by asking the defendant for the following information: (1) phone number, (2) height, (3) weight, (4) eye color, (5) whether he had any scars, marks, or tattoos, (6) place of birth, (7) whether he was employed, (8) model, color, and owner of the car involved in the traffic stop. Kontz then read the implied consent warnings to the defendant. Kontz asked the defendant if he understood the warnings. The defendant responded that he did not understand them and asked Kontz questions about the content of warnings. Kontz again explained the implied consent warnings, and the defendant said that he understood them. Kontz then asked if the defendant was going to submit to a blood draw, and the defendant responded by asking if he could have his lawyer present. Kontz explained that he could not talk with his lawyer before deciding whether to submit to the draw. The defendant then told Kontz that he had a friend who refused a blood draw and was not convicted of DUI. Kontz again asked the defendant if he was going to submit to the blood draw. The defendant then asked whether he could speak to his lawyer. He also asked what would happen if he refused the blood draw. Kontz said that he could not speak with his lawyer and again explained the implied consent warnings. The defendant then asked why he was pulled over. Kontz responded that he did not know why he was pulled over and told the defendant that there were consequences if he refused the blood draw. The defendant asked if he could really go to jail for five years. Kontz told the defendant that he could go to jail for a maximum of five years if he refused the draw. Kontz then asked the defendant if he was going to submit to the blood draw. The defendant said he was not speeding or swerving. He also said he might not use his turn signal all the time. Kirk then told the defendant that he was pulled over because he did not use a turn signal. The defendant asked Kirk where he did not use a turn signal. Kontz directed the defendant to answer whether he was going to submit to the blood draw. The defendant then told Kontz that he was refusing the blood draw and understood the consequences of the refusal.

The defendant asked Kontz what would happen if the person in the passenger seat was driving the car. Kontz responded that the passenger was not driving. The defendant asked whether the police could prove that he was driving the car. Kontz responded that he thought the police could prove it. The defendant then asked Kontz whether he could say something. After Kontz warned him that the camera was running, the defendant talked about witnessing police officers get pulled over while driving drunk but not get arrested. Kontz then advised the defendant of his Miranda rights. The following exchange took place:

Kontz: Sir, do you understand those rights?
Defendant: I understand everything.
Kontz: With those rights in mind, do you wish to speak to me now without having an attorney present?
Defendant: No.

Unprompted by Kontz, the defendant discussed his frustration about police officers not getting arrested for drunk driving. The defendant also discussed his medical problems. Kontz then asked the defendant to sign a form stating that he had been advised of the implied consent warnings. The defendant said that he would not sign the form. The following exchange then took place:

Defendant: I disagree with this whole thing. This doesn’t make any sense to me.
Kontz: Well you’re drinking and driving. And you’ve been brought here because you were arrested for drinking a driving.
Defendant: You’re getting mad at me.
Kontz: Well no. I’m not sure what part you don’t understand.
Defendant: I don’t understand. I’ve got a serious problem with. It doesn’t even matter, you’re not going to understand that either. You used to know me when I was in good shape.
Kontz: I do remember you Mr. Tilburg, yes.
Defendant: I’m not in good shape anymore. I’m done for. I’m going down the hill.
Kontz: These are the Miranda rights I read to you. Asked if you understood the rights.
You indicated yes. Asked if you wanted to speak to me without an attorney. You indicated no.
Defendant: I didn’t say that. I said I wanted an attorney.
Kontz: Right. You didn’t want to talk to me without an attorney.
Defendant: I’ll talk to you now but yeah, of course.
Kontz: Well you said you wanted an attorney so I can’t ask you any questions because you said you wanted an attorney.

Kontz then asked the defendant to sign a form indicating that he had been advised of his Miranda rights. The defendant said that he would not sign it. After cautioning the defendant, Kontz gave him an opportunity to say something while the camera was running. The defendant made a few statements unrelated to the December 21, 2013 traffic stop.

The defendant was charged with driving under the influence of alcohol, turning movements and required signals, and careless driving. In his motion, the defendant argues that Kirk’s stop of the defendant’s car was illegal because the defendant did not commit a traffic violation. The defendant also argues that the evidence from the filed sobriety tests should be suppressed because Kirk did not consider the defendant’s medication and physical ailments when scoring the tests. The Commonwealth relies on the preliminary hearing transcript to counter these two arguments. In addition, the defendant argues that the his right against self-incrimination and his right to counsel will be violated if the Commonwealth is permitted to introduce into evidence the audio portion of the videotape in which the defendant responds to Kontz’s questions. The Commonwealth argues that it should be permitted to introduce the audio portion since Kontz did not ask any investigative questions before the defendant was advised of his Miranda rights.

II. Discussion

A. The Traffic Stop was Legal

“In Pennsylvania, a police officer has authority to stop a vehicle when he or she has reasonable suspicion that a violation of the Motor Vehicle Code is occurring or has occurred.” Commonwealth v. Farnan, 55 A.3d 113, 116 (Pa. Super. 2012). “[I]n order to establish reasonable suspicion, an officer must be able to point to specific and articulable facts which led him to reasonably suspect a violation of the Motor Vehicle Code....” Commonwealth v. Holmes, 14 A.3d 89, 95-96 (Pa. 2011). “The determination of whether an officer had reasonable suspicion...is an objective one, which must be considered in light of the totality of the circumstances.” Id. at 96.

“Upon a roadway no person shall ... enter the traffic stream from a parked position without giving an appropriate signal in the manner provided in this section.” 75 Pa. C.S. §3334(a). “The signal shall also be given prior to entry of the vehicle into the traffic stream from a parked position.” Id. §3334(b).

Kirk observed the defendant pull out of a parking spot and enter a lane of Market Street. Kirk did not observe the car’s turn signal as the car entered the lane. Therefore, Kirk had reasonable suspicion that a violation of the Motor Vehicle Code had occurred and the stop was legal.

B. Trooper Kirk Properly Administered Field Sobriety Tests

The defendant argues that Kirk did not properly administer field sobriety tests because he did not consider the defendant’s medication and medical issues. Initially, Kirk is trained in administering field sobriety tests and has been involved in approximately 100 DUI arrests. Kirk asked the defendant if he was on any medication. The defendant responded that he took Tylenol with codeine but had not taken it since 5:00 P.M. on December 20, 2013. Kirk asked the defendant if he had any physical problems. In response, the defendant mentioned only the medication that he was taking. Kirk then administered the horizontal gaze nystagmus test and the walk and turn test. When Kirk asked the defendant to perform the one-leg-stand, the defendant said he could not because he had arthritis in his feet. Therefore, Kirk did not administer the test. Kirk deciding to not administer the one-leg-stand shows that he took into account the defendant’s physical ailment.

During the preliminary hearing, defense counsel asked Kirk how arthritis in feet can affect performance on field sobriety tests. Kirk responded, “Well it can affect it some I am sure but...the [walk and turn] test was not completed near to satisfaction. He [the defendant] took too many steps down, too many steps back, he didn’t turn properly, he started too soon, if I remember correctly.” Kirk acknowledged that arthritis could affect the defendant’s ability to perform the walk and turn but gave reasons as to why the test “was not completed near to satisfaction.” To this court, it appears that the defendant could not complete the mental requirements of the test, which arthritis would not affect. Regardless, this court will rely on the determination of the trained and experienced Kirk. It is clear that Kirk was aware of the defendant’s medication and arthritis. Kirk’s decision to forego administration of the one-leg-stand shows that he considered the defendant’s physical condition. In his determination, the defendant did not satisfactorily complete the filed sobriety tests.

C. Segments of the Audio of the Proceeding at the DUI Processing Center can be Introduced without Violating the Defendant’s Privilege Against Self-Incrimination and Right to Counsel.

1. Privilege Against Self-Incrimination

In Pennsylvania v. Muniz, the Supreme Court of the United States discussed the privilege against self-incrimination;

[T]he privilege against self-incrimination protects individuals.. .from ‘informal compulsion exertedby law-enforcement officers during in-custody questioning.’ Of course, voluntary statements offered to police officers ‘remain a proper element in law enforcement.’ But ‘without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.’ Accordingly, we held that protection of the privilege against self-incrimination during pretrial questioning requires application of special ‘procedural safeguards.’ ‘Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.’ Unless a suspect ‘voluntarily, knowingly and intelligently’ waives these rights, any incriminating responses to questioning may not be introduced into evidence in the prosecution’s case in chief in a subsequent criminal proceeding.

Muniz, 496 U.S. at 589 (quoting Miranda v. Arizona, 384 U.S. 436, 461 (1966)). The court continued:

[C]ustodial interrogation for purposes of Miranda includes both express questioning, and also words or actions that, given the officer’s knowledge of any special susceptibilities of the suspect, the officer knows or reasonably should know are likely to ‘have ... the force of a question on the accused,’ and therefore be reasonably likely to elicit an incriminating response.

Muniz, 496 U.S. at 601 (citation omitted).

In Commonwealth v. DeJesus, the Supreme Court of Pennsylvania discussed the waiver of Miranda rights:

A defendant may waive his Miranda rights, and agree to answer questions or make a statement. For a waiver to be valid, it must be knowing, voluntary, and intelligent. In other words, the waiver must be “the product of a free and deliberate choice rather than intimidation, coercion, or deception,’ and ‘must have been made with a foil awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.’

DeJesus, 787 A.2d at 403 (quoting Colorado v. Spring, 479 U.S. 564 (1987) (citations omitted)). “The burden of proving by a preponderance of evidence that a waiver of a constitutional right was knowing, voluntary, and intelligent rests upon the Commonwealth.” Commonwealth v. Waggoner, 540 A.2d 280, 289 (Pa. Super. 1988).

Here, the Commonwealth has not shown by a preponderance of evidence that the defendant knowingly and intelligently waived his Miranda rights. When Kontz asked the defendant whether he understood his Miranda rights, the defendant said that he did. The defendant also said that he did not want to talk to Kontz without an attorney. About five minutes later, the following exchange took place:

Kontz: These are the Miranda rights I read to you. Asked if you understood the rights. You indicated yes. Asked if you wanted to speak to me without an attorney. You indicated no.
Defendant: I didn’t say that. I said I wanted an attorney.
Kontz: Right. You didn’t want to talk to me without an attorney.
Defendant: I’ll talk to you now but yeah, of course.

Although the defendant said that he understood the Miranda rights, his statements five minutes later suggest otherwise. This court is not convinced the defendant made the waiver “with full awareness...of the nature of the right being abandoned.” If the defendant had made a waiver with full awareness, he would have known that he had told Kontz that he did not want to talk without an attorney.

However, a defendant’s statements can be admissible even if he or she did not validly waived the Miranda rights. See Muniz, 496 U.S. at 602-05. Statements made by the defendant while he was not subject to custodial interrogation can be admissible. See id. “Volunteered or spontaneous utterances by an individual are admissible even without Miranda warnings.” Commonwealth v. Gaul, 912 A.2d 252, 255 (Pa. 2006).

In Muniz, a police officer arrested the defendant for DUI and transported him to a booking center. Id. at 585. “Following its routine practice for receiving persons suspected of driving while intoxicated, the Booking Center videotaped the ensuing proceedings. [The defendant] was informed that his actions and voice were being recorded, but he was not at this time (nor had he been previously) advised of his rights under Miranda v. Arizona. [The officer] first asked [the defendant] his name, address, height, weight, eye color, date of birth, and current age. He responded to each of these questions, stumbling over his address and age.” Id. at 585-86.

“[The officer] ...requested [the defendant] to perform... three sobriety tests.... [W]hile performing these tests, the defendant ‘attempted to explain his difficulties in performing the various tasks, and often requested further clarification of the tasks he was to perform.’” Id. (quoting Commonwealth v. Muniz, 547 A.2d 419, 423 (Pa. Super. 1988)).

“Finally, [the officer] asked [the defendant] to submit to a breathalyzer test designed to measure the alcohol content of his expelled breath. [The officer] read to [the defendant] the Commonwealth’s Implied Consent Law... and explained that under the law his refusal to take the test would result in automatic suspension of his drivers’ license for one year. [The defendant] asked a number of questions about the law, commenting in the process about his state of inebriation. [The defendant] ultimately refused to take the breath test. At this point, [the defendant] was for the first time advised of his Miranda rights. [The defendant] then signed a statement waiving his rights and admitted in response to further questioning that he had been driving while intoxicated.” Id.

The court held that the defendant’s responses to questions about the following need not be suppressed: name, address, height, weight, eye color, date of birth, and age. Id. at 602 and 608. In addition, the court held that the defendant’s statements during the field sobriety tests need not be suppressed. Id. at 604. The court wrote the following:

[The officer’s] dialogue with [the defendant] concerning the physical sobriety tests consisted primarily of carefully scripted instructions as to how the tests were to be performed. These instructions were not likely to be perceived as calling for any verbal response and therefore were not ‘words or actions’ constituting custodial interrogation, with two narrow exceptions not relevant here. The dialogue also contained limited and carefully worded inquiries as to whether [the defendant] understood those instructions, but these focused inquiries were necessarily ‘attendant to’ the police procedure held by the court to be legitimate. Hence, [the defendant’s] incriminating utterances during this phase of the videotaped proceedings were ‘voluntary’ in the sense that they were not elicited in response to custodial interrogation.

Id. at 603-04.

The court also held that “Miranda does not require suppression of the statements [the defendant] made when asked to submit to a breathalyzer examination.” Id. at 604. The court wrote the following:

We believe that [the defendant’s] statements were not promoted by an interrogation within the meaning of Miranda, and therefore the absence of Miranda warnings does not require suppression of these statements at trial. [The officer requesting the breathalyzer] carefully limited her role to providing [the defendant] with relevant information about the breathalyzer test and the implied consent law. She questioned [the defendant] only as to whether he understood her instructions and wished to submit to the test. These limited and focused inquiries were necessarily ‘attendant to’ the legitimate police procedure...and were not likely to be perceived as calling for any incriminating response.

Id. at 605 (citations omitted).

Here, Miranda does not require the suppression of the defendant’s responses to Kontz’s questions about the following: phone number, height, weight, eye color, scars, marks, tattoos, place of birth, and employment. These questions are very similar to the background questions in Muniz that did not require Miranda warnings. These questions and the defendant’s responses cover the first three minutes and twenty-one seconds of the video. Therefore, the audio of the first three minutes and twenty-one seconds is admissible.

At the 3:21 mark, Kontz asks for the model, color, and owner of the car involved in the traffic stop. Since driving is an element of driving under the influence, this question called for an incriminating response. Therefore, the defendant’s response to this question must be suppressed. Accordingly, this court suppresses the audio from 3:21 to 3:40.

At the 3:40 mark, Kontz begins reading the implied consent warnings to the defendant. The defendant asks several questions about the warnings, and Kontz explains them several times. Kontz questions the defendant only as to whether he understands the instructions and wishes to submit to the blood draw. Like the questions about the breathalyzer and the implied consent law in Muniz, Kontz’s questions were attendant to a legitimate police procedure and were not likely to be perceived as calling for any incriminating responses. Therefore, the audio from 3:40 to 14:48 is admissible.

At the 14:48 mark, the defendant asks Kontz what happens if the person who was in the passenger seat of the car was driving the car. The defendant and Kontz have a short conversation about who was driving the car. Although Kontz does not ask the defendant any questions, he maintains the conversation. Kontz’s responses to the defendant’s questions were reasonably likely to elicit incriminating information since they called for the defendant to talk about the events leading to the traffic stop. Therefore, the defendant’s statements during this conversation must be suppressed. Accordingly, the audio from 14:48 to 15:18 is suppressed.

At the 15:18 mark, the defendant speaks unprompted by Kontz. Kontz warns the defendant that the camera is running, but the defendant continues to speak. There were no statements or conduct by Kontz reasonably likely to elicit an incriminating response. Therefore, the audio from 15:18 to 16:16 is admissible.

At the 16:16 mark, Kontz begins to advise the defendant of his Miranda rights. Kontz asks the defendant whether he understands his rights and whether the defendant wants to speak to Kontz without an attorney. These questions were attendant to required police procedure and were not likely to be perceived as calling for an incriminating response. Therefore, the audio from 16:16 to 17:39 is admissible.

At the 17:39 mark, the defendant speaks unprompted by Kontz. The defendant talks about witnessing police officers drink at bars but not get arrested for drunk driving. Kontz suggests that the officers have other people give them a ride home and asks whether the defendant saw the officers leave the bar. This question was not reasonably likely to elicit an incriminating response as it had nothing to do with the defendant’s actions on December 20, 2013 and December 21, 2013. Therefore, the audio from 17:39 to 20:52 is admissible.

At the 20:52 mark, Kontz again goes through the implied consent warnings and asks the defendant to sign a form indicating that he had been given the warnings. The defendant responds that he will not sign the form and then speaks unprompted by Kontz. Kontz responds by saying that the defendant has been brought to the processing center because he has been drinking and driving. Kontz states that he is “not sure what part [the defendant] doesn’t understand.” This statement by Kontz can be perceived as calling for an incriminating response because it called for the defendant to talk about his actions leading to his arrest. The defendant’s response is not incriminating, but it will nonetheless be suppressed since the question was reasonably likely to elicit an incriminating response. Accordingly, the audio from 20:52 to 22:01 is suppressed.

At 22:01, Kontz again reads the Miranda rights. The defendant tells Kontz that he will talk to him without an attorney. Kontz then asks the defendant to sign a form, which the defendant refuses to sign. There were no statements or conduct by Kontz reasonably likely to elicit an incriminating response. Therefore, the audio from 22:01 to 22:48 is admissible.

At 22:48, Kontz says that drinking and driving is not a good idea. This statement was reasonably likely to elicit an incriminating response because it invites the defendant to speak about his actions leading to his arrest. Therefore, the audio from 22:48 to 23:05 is suppressed

From 23:05 to 23:41, Kontz explains a document and gives the defendant information about the district attorney’s office. The audio of this segment will not be suppressed since Kontz did nothing reasonably likely to elicit an incriminating response.

At 23:41, Kontz gives the defendant an opportunity to speak. Before the defendant speaks, Kontz cautions him. As discussed above, the defendant did not knowingly and intelligently waive his Miranda rights. Inviting the defendant to speak without a valid waiver was conduct reasonably likely to elicit an incriminating response. Accordingly, the audio from 23:41 to 24:29 will be suppressed.

2. Right to Counsel

In Commonwealth v. Rishel, the Superior Court of Pennsylvania discussed the right to counsel:

An accused is guaranteed the right to counsel when an attempt is made by the government to deliberately elicit information after adversarial proceedings are commenced. In Pennsylvania, a defendant’s right to sixth amendment protection attaches at the time of arrest. Since [the defendant] had already been arrested, his sixth amendment right to counsel applied during the videotaping at the police station. However, it must be determined whether the videotaping was a critical stage of adversarial proceeding against [the defendant]. Attempting to elicit information is a critical stage at which counsel must be present.

Rishel, 582 A.2d at 665-66 (citations omitted).

Here, if Kontz deliberately elicited any information, it has been suppressed as a result of the defendant’s privilege against self-incrimination. All other information revealed by the defendant was not elicited by Kontz.

III. Conclusion

The traffic stop was legal because Kirk had reasonable suspicion that the defendant violated 75 Pa. C.S. § 3334. Kirk properly administered the field sobriety tests because he decided not to administer the one-leg-stand and was aware of the defendant’s medication and arthritis. The audio of the following segments of the proceeding at the DUI Processing Center is suppressed: 3:21 to 3:40, 14:48 to 15:18, 20:52 to 22:01, 22:48 to 23:05, 23:41 to 24:29. The audio of all the other segments is admissible.

ORDER

And now, this 2nd day of October, 2014, based upon the foregoing opinion, the defendant’s omnibus pretrial motion is hereby granted in part and denied in part. It is ordered and directed that the segments of the audio as being determined to contain statements obtained in violation of defendant’s Miranda rights are hereby suppressed.

      . 75 Pa. C.S. § 3802(a)(1).

      . 75 Pa. C.S. § 3334(a).

      . 75 Pa. C.S. § 3714(a).

      . 496 U.S. 582 (1990).

      . 787 A.2d 394 (Pa. 2001).

      . 582 A.2d 662 (Pa. Super. 1990).


source: Caselaw Access Project

author: TUNNELL, J.,

license: Public Domain

text:
    Savoia v. Wal-Mart Stores Inc.

      C.P. of Chester County,
    No. 2014-00746-IR

      Todd B. Nurick and Brian M. Andris, for plaintiffs

      Heather C. Giordanella, for defendant

      Oct. 15, 2014
   TUNNELL, J.,

ORDER

And now, this day of , 2014, upon consideration of defendant’s preliminary objections to plaintiffs’ second amended complaint, plaintiffs’ response thereto, the respective briefs in support, and all other matters of record, it is hereby ordered and decreed as follows:

1. Defendant’s objections to plaintiffs’ claim for Tortious Interferences with an Existing Contractual Relationship in Counts II and III of the second amended complaint are overruled;
2. Defendant’s objection to plaintiffs’ claim for tortious interference with prospective contractual relations in Counts II and III of the second amended complaint are sustained;
3. Defendant’s objection to plaintiffs’ claim for civil conspiracy in Count IV of the second amended complaint is sustained in part and overruled in part: To the extent the predicate cause of action for plaintiffs’ claim of civil conspiracy is plaintiffs’ claim for Tortious Interference with Prospective Contractual Relations, the objection is sustained; to the extent the predicate cause of action for plaintiffs’ claim of Civil Conspiracy is plaintiffs’ claim for Tortious Interference with an Existing Contractual Relationship, the objection is overruled; and
4. Defendants’ objection to plaintiffs’ claim for an injunction in Count VII of the second amended complaint is overruled.

Plaintiffs are granted leave to file a third amended complaint within twenty (20) days of the date this order is docketed solely as to the following:

a) Plaintiffs’ claim for Tortious Interference with Prospective Contractual Relations; and
b) Plaintiffs’ claim for civil conspiracy where the predicate cause of action is a claim for Tortious Interference with Prospective Contractual Relations.

Should plaintiffs fail to file a third amended complaint in said time, the second amended complaint shall become the operative complaint, as modified by the terms of this order, and defendant shall file an answer to the second amended complaint within twenty (20) days thereof.

      . On June 20, 2014, Defendant, Wal-Mart Stores, Inc., d/b/a WalMart and/or Wal-Mart Supercenter and/or Wal-Mart Store #5795 (hereinafter “Wal-Mart”) filed preliminary objections to Plaintiffs’ Second Amended Complaint (“Complaint”) on grounds of legal insufficiency (demurrer) and insufficient specificity in a pleading. Plaintiffs’ filed a response in opposition on July 10, 2014, and both parties filed briefs in support of their respective positions. Upon review of the objections, Plaintiffs’ response, and all other matters of record, the objections will be sustained in part and overruled in part.
      Wal-Mart first asserts that Counts II and III of Plaintiffs’ Complaint, which purport to set forth claims for, respectively, “Tortious Interference with Contractual Relations’'' and “Tortious Interference with Business Relations”, must be dismissed as legally and factually insufficient. See, Pa.R.C.P. No. 1028(a)(3), (4). More specifically, Wal-Mart argues that the allegations of Plaintiffs’ Complaint set forth no more than “bald assertions and speculation” rather than the specific, “material facts” necessary to support Plaintiffs’ claims.a (Def.’s Obj. at ¶¶ 22 — 23)
      The elements of a cause of action for intentional interference with a contractual relation, whether existing or prospective, are as follows:
      1. the existence of a contractual, or prospective contractual relation between the complainant and a third party;

        2. purposeful action on the part of the defendant, specifically intended to harm the existing relation, or to prevent a prospective relation from occurring;
      3. the absence of privilege or justification on the part of the defendant; and
      4. the occasioning of actual legal damage as a result of the defendant’s conduct.

        Reading Radio, Inc. v. Fink, 833 A.2d 199, 211 (Pa. Super. 2003)(quoting, Strickland v. University of Scranton, 700 A.2d 979, 985 (Pa.Super.1997)); see also, Phillips v. Selig, 959 A.2d 420, 428-29 (Pa. Super. 2008).
      Plaintiffs’ Counts II and III purport to set forth claims for interference with existing and prospective contractual relations. (See Plf.s’ Com. at ¶¶ 67, 71, 73, 82, 86). Although related, these claims are independent causes of action, Phillips, 959 A.2d at 428-29, and the Court will therefore analyze Wal-Mart’s objections to each claim separately.
      Interference with Existing Contractual Relations
      Plaintiffs have obviously satisfied the pleading requirement of the first element, as the franchise agreement between Plaintiffs and former Defendant, JTH Tax, Inc., d/b/a Liberty Tax Service (hereinafter “LTS”), constitutes an existing contract. The second element requires a plaintiff to allege that the defendant acted “for the specific purpose of causing harm to the plaintiff.” Id. at 429 (internal citation omitted); see also, Glenn v. Point Park College, 272 A.2d 895, 899 (Pa. 1971) (The tort of interference with contract “is an intentional one: the actor is acting as he does [f]or the purpose of causing harm to the plaintiff’). The third element requires a plaintiff to aver that the defendant’s actions were without privilege or justification, i.e., were “improper under the circumstances presented”. Phillips, 959 A.2d at 429; see also, Empire Trucking Co. v. Reading Anthracite Coal Co., 71 A.3d 923, 934 (Pa. Super. 2013) (“[I] n order to succeed in a cause of action for tortious interference with a contract, a plaintiff must prove not only that a defendant acted intentionally to harm the plaintiff, but also that those actions were improper.”). In determining whether a plaintiff has sufficiently alleged that the defendant acted improperly, a trial court takes account of the following factors listed in the Restatement (Second) of Torts, Section 767:
      (a) the nature of the actor’s conduct; (b) the actor’s motive; (c) the interests of the others with which the actor’s conduct interferes; (d) the interests sought to be advanced by the actor; (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other; (f) the proximity or remoteness of the actor’s conduct to the interference; and (g) the relations between the parties.
      Restatement (Second) of Torts § 767, cmt. b. (hereinafter “Restatement”); Empire Trucking Co., 71 A.3d at 934; Philips, 959 A.2d at 430. Allegations of both an intent tp harm and improper conduct are required because, in most cases, “the defendant’s intentional conduct is done at least in part for the purpose of protecting some legitimate interest which conflicts with that of the plaintiff.” Ibid, (internal quotation and citation omitted). Thus, the overarching inquiry on whether a defendant acted improperly is whether the defendant’s conduct is “sanctioned by the rules of the game which society has adopted.” Glenn, 272 A.2d at 899; see, e.g., Triffin v. Janssen, 626 A.2d 571, 575 (Pa. Super. 1993) (Refusal to consent to withdrawal of opposing party’s attorney was not improper because conduct was consistent with the rules of court); Small v. Juniata College, 682 A.2d 350, 354 (Pa. Super. 1996) (Players on football team did not act improperly by voicing negative opinions of coach to college administration, which, upon investigation, discharged him, since in the academic world students are encouraged to voice their opinions).
      Applying these standards to the Complaint at bar, the Court finds that it sufficiently avers tortious interference with an existing contractual relationship such that Wal-Mart’s objections must be overruled. On demurrer, the Court accepts as true all material facts set forth in the complaint and all inferences reasonably deducible therefrom. Weiley v. Albert Einstein Med. Ctr., 51 A.3d 202, 208 (Pa. Super. 2012). Similarly, in determining whether the allegations of a complaint have been set forth with the requisite factual specificity, the court considers whether the complaint “is sufficiently clear to enable the defendant to prepare his defense,” or “whether the plaintiff’s complaint informs the defendant with accuracy and completeness of the specific basis on which recovery is sought.” Rambo v. Greene, 906 A.2d 1232, 1236 (Pa. Super. 2006). The close relationship between preliminary objections to legal and factual sufficiency is clear. As explained by the court in Rambo, once a plaintiff pleads the elements of a cause of action, “the question then becomes whether the pleading was sufficiently specific” as to the elements of that claim. Id. at 1236 (emphasis in original).
      In this case, the franchise agreement entered into between Plaintiffs and LTS provides that LTS was prohibited from establishing a separate “franchised or company owned outlet.... [within Plaintiffs’] Territory” of operation. (Plfs.’ Ex. A, B, at 3, 3-4). However, an exception to that prohibition exists with regard to LTS’s relationship with certain retail businesses. The franchise agreement states, in relevant part:
      [LTS] may negotiate agreements with national or regional retail businesses. If there is an outlet of such a national or regional account in your Territory, you may choose to operate a tax return preparation service office in that outlet by communicating such decision to us by January 1 before a given Tax Season. In the event that you choose not to operate in an outlet which exists in your Territory, we may operate in that outlet in your Territory. If we do so, all associated revenue and expenses are ours, along with the future right to service such customers. The term “Tax Season” as used in this Agreement means January 2 through April 30.

        {Ibid.). The Complaint avers that Plaintiff, Christopher Savoia (“Savoia”), was interested in expanding his Liberty Tax business by opening a second franchise location in the newly constructed Wal-Mart “Supercenter” in Oxford, Pennsylvania, but that he was repeatedly advised by representatives of LTS and former Defendant, DAT, LLC, that no such opportunity existed. (See Plfs.’ Com. at ¶¶ 25 — 30). Plaintiffs’ Complaint further avers that on November 6, 2013, unbeknownst to Savoia, a meeting occurred between an LTS representative and the Oxford Wal-Mart store manager to discuss “setting up an LTS kiosk” at the Oxford Wal-Mart store location. (Id at ¶ 31). Savoia finally learned of the planned kiosk on December 23, 2013, and submitted a complaint (what the parties’ have referred to as an “issue”) to LTS “Support Central” to inquire as to why a kiosk location would be opening in his territory of operation without prior notice to him and after he had repeatedly inquired about the same opportunity. Three days later, Savoia was informed by a DAT representative that an LTS representative contacted Wal-Mart on December 23 with regard to Plaintiffs’ “issue”. Plaintiffs further aver that on December 28 an LTS representative sent an e-mail to a DAT representative in which she stated: “We will contact our Wal-Mart team to see if this is one that we can back out of.” (Id. at 37). Subsequently, on January 2, 2014, Savoia was contacted by an LTS representative who advised him that (1) “he must operate the Oxford Wal-Mart [kiosk] location”; and (2) if he did not operate the location, LTS would (a) strip him of status as a “Top Gun” franchisee within the company; and (b) proceed to operate the kiosk independently (and in direct competition with) Plaintiffs’ business. (Id. at 39). Thus, Plaintiffs’ have averred that soon after LTS’s “contact” with Wal-Mart, Savoia was presented with an ultimatum that was contrary to the terms of Plaintiffs’ franchise agreement pertaining to LTS’s independent operation of a “company owned” outlet.
      Accepting these allegations as true, the Court finds that they are minimally sufficiently to set forth a claim for tortious interference with an existing contractual relationship. One reasonable set of inferences to be drawn from the Complaint is that, following Plaintiffs’ submission of the December 23 “issue” to LTS Support Central, LTS became aware that it was potentially acting in breach of its franchise agreement by proceeding to set up (and ultimately operate) a LTS kiosk in the Oxford WalMart location. As a result, LTS contacted Wal-Mart on December 23 to address the “issue”, and again on December 28 to determine if the kiosk arrangement was “one that we can back out of. Despite this, on January 2, Savoia was informed by a representative of LTS that plans for the new kiosk would continue, with or without his participation. These allegations support the inference that Wal-Mart was informed that operation of an LTS kiosk within its Oxford store location was a potential breach of the Plaintiffs-LTS franchise agreement, but that Wal-Mart, nonetheless, required the planned LTS kiosk to proceed. The Court finds that these allegations adequately allege “improper” conduct that was done with the requisite intent to support Plaintiffs’ claim, and reaches this conclusion for the following reasons:
      First, a plaintiff adequately pleads the intent necessary to support a claim for tortious interference with an existing contractual relationship even if the plaintiff’s allegations fall short of establishing that that the defendant acted with the “primary purpose” of interfering with the performance of a contract. Comment j to Section 766 of the Restatement explains that intent is established even in cases “in which the actor does not act for the purpose of interfering with the contract... but knows that the interference is certain or substantially certain to occur as a result of his action. The rule applies, in other words, to an interference that is incidental to the actor’s independent purpose and desire but known to him to be a necessary consequence of his action.” Restatement, § 766, cmt. j.; see also, Adler, Barish, Daniels, Levin & Creskoff v. Epstein, A.2d 1175 (Pa. 1978) (Adopting Section 766 of the Restatement); Walnut St. Associates, Inc. v. Brokerage Concepts, Inc., 982 A.2d 94, 100 (Pa. Super. 2009) aff’d, 20 A.3d 468 (Pa. 2011) (Noting that “Pennsylvania is a ‘Restatement state’ “ that has “repeatedly looked to the Restatement as authority for the elements of a cause of action for intentional interference with existing contract relations.”) (internal quotation and citation omitted). Thus, while it is true, as Wal-Mart points out, that Plaintiffs’ allegations do not support the inference that Wal-Mart acted with the “primary” or exclusive purpose to interfere with the Plaintiffs-LTS contractual relationship, they do amply support the inference that Wal-Mart was aware its actions could have that incidental effect.
      Second, the tort does not obligate a plaintiff to plead that the defendant “appreciated the legal significance of the facts giving rise to the contractual duty” with which the it interferes. Restatement, § 766, cmt. i. For example, liability may still attach despite a defendant’s belief that the agreement “is not legally binding or has a different legal effect from what it is judicially held to have.” Ibid. Rather, all that is necessary as a predicate to the action is that the defendant “have knowledge of the contract with which he is interfering and of the fact that he is interfering with the performance of the contract”, something that Plaintiffs have in this case. Ibid.

      Finally, the Court’s consideration of whether Wal-Mart acted without “privilege or justification”, i.e., whether Plaintiffs’ allegations give rise to an inference of conduct “improper under the circumstances”, weighs in favor permitting the claim to proceed, at least at this stage of the ligation. Indeed, the Court remains cognizant of the Restatement’s admonition that, if the contractual interference is brought about “only as a necessary consequence of the conduct of the actor engaged in [it] for an entirely different purpose, his knowledge of [the interference] makes the interference intentional, but the [Section 767] factor of motive carries little weight toward producing a determination that the interference was improper.” Restatement, § 767, cmt. d.; see also, ibid. (“Intent alone . . . may not be sufficient to make the interference improper, especially when it is supplied by the actor’s knowledge that the interference was a necessary consequence of his conduct rather than by his desire to bring it about.”); cf., Empire Trucking, 71 A.3d at 934 (Noting that the tort’s second and third elements of intent and improper conduct are “closely intertwined”). But the Court does not view the allegations of the Complaint as only supporting the inference that the contractual interference was purely a “necessary consequence” of Wal-Mart’s alleged conduct. This is particularly true in light of LTS’s initial willingness to see if the kiosk arrangement was one that they could “back out of, and then its change of tune some five days later, after contacting Wal-Mart, in which LTS advised Savoia that he must either immediately take over operation of the kiosk or suffer the consequence of the loss of his “Top Gun” status and the establishment of a competitor business located within his territorial region. In sum, the Court finds that Plaintiffs’ Complaint adequately sets forth a claim for tortious interference with an existing contractual relationship, and further adequately appraises Wal-Mart “of the specific basis on which recovery is sought.” Rambo v. Greene, 906 A.2d at 1236. Wal-Mart’s objection is, accordingly, overruled.b
      Interference with Prospective Contractual Relations
      Unlike a claim for interference with an existing contract, a claim for interference with prospective contractual relations requires a more scrutinizing analysis of the first element of the action, i.e., adequately pleading the existence of a “prospective contractual relation between the complainant and a third party”. Wal-Mart argues that the Complaint falls short of the factual averments necessary to sustain Plaintiffs’ claim. The Court agrees.
      “Defining a ‘prospective contractual relationship’ can be difficult. As our Supreme Court has commented, ‘to a certain extent, the term has an evasive quality, eluding precise definition. It is something less than a contractual right, something more than a mere hope.’” Phillips, 959 A.2d at 428 (quoting in part Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 471 (Pa. 1979)). “[Ajnything that is prospective in nature is necessarily uncertain. We are not here dealing with certainties, but with reasonable likelihood or probability. There must be something more than a mere hope or the innate optimism of the salesman.” Phillips, 959 A.2d at 428 (quoting Glenn, supra, 272 A.2d at 898-99).
      In this case, Plaintiffs have alleged that Wal-Mart’s actions “interfered with Plaintiffs’ prospective contractual relations with clients.” (Plfs.’ Com. at ¶ 71; see also, id. at ¶ 86). In support of that assertion, Plaintiffs aver “the competing LTS location confused Mr. Savoia’s loyal customers into believing that he was affiliated with the competing location, and the competing location also pulled prospective clients, within Mr. Savoia’s exclusive area, away from Plaintiffs’ LTS location to the competing kiosk.” {Ibid.). The Court finds that such allegations are woefully inadequate to support Plaintiffs’ claim of prospective interference. As an initial matter, the mere “confusion” of an existing customer base, without more, is not relevant for purposes of the claim, since the tort is designed to address the loss of prospective, i.e., soon-to-be, contractual relationships. In addition, the allegation that the LTS kiosk “pulled prospective clients ...away” simply fails to support an inference of a “reasonable likelihood” that Plaintiffs would have entered into contractual relations for the provision of tax services with prospective clients had it not been for the placement of the kiosk. See, Foster v. UPMC S. Side Hosp., 2 A.3d 655, 666 (Pa. Super. 2010) (Sustaining trial court’s grant of a demurrer on prospective interference claim because the complaint “[did] not provide a scintilla of information regarding the purported contractual relationships.”). The Court is thus left with mere speculation, rather than the facts necessary to support the claim. See, Lerner v. Lerner, 954 A.2d 1229, 1235 (Pa. Super. 2008). Wal-Mart’s objection to Plaintiffs’ claim for claim for tortious interference with prospective contractual relations is, accordingly, sustained.
      Civil Conspiracy
      In its second objection, Wal-Mart asserts that Count IV of the Complaint is legally insufficient because a claim for civil conspiracy “is not an independent cause of action and, therefore, must be based on a viable underlying cause of action.” (Def.’s Obj. at ¶32). Because Plaintiffs have not sufficiently established “an underlying claim on which a claim for civil conspiracy can be based”, argues Wal-Mart, Count IV of the Complaint must be dismissed. (Ibid.)

      In order to state a civil action for conspiracy, a complaint must allege: “1) a combination of two or more persons acting with a common purpose to do an unlawful act or to do a lawful act by unlawful means or for an unlawful purpose; 2) an overt act done in pursuance of the common purpose; and 3) actual legal damage.” Goldstein v. Phillip Morris, Inc., 854 A.2d 585, 590 (Pa. Super. 2004). Wal-Mart also correctly points out that “absent a civil cause of action for a particular act, there can be no cause of action for civil conspiracy to commit that act.” Ibid', see, e.g., Rock v. Rangos, 61 A.3d 239, 249 (Pa. Super. 2013) (Under Pennsylvania law, a “conspiracy claim will not lie without a valid underlying civil claim.”); Gordon v. Lancaster Osteopathic Hospital Association, Inc., 489 A.2d 1364, 1368, 1372 (Pa. Super. 1985) (No cause of action for conspiracy to defame where no basis for defamation action). In addition, the act underlying a civil conspiracy claim must be based on criminal or intentional conduct: “[sjtrict liability and negligence counts are insufficient to support [a] civil conspiracy claim.” Gordon, supra, 854 A.2d at 590; see also Burnside v. Abbott Labs., 505 A.2d 973, 982 (Pa. Super. 1986) (Holding that plaintiffs’ failed to state a claim for civil conspiracy because allegations of “no more than a contemporaneous and negligent failure to act” were “insufficient to state either a conspiratorial agreement or the requisite intent to cause injury.”).
      Here, the entirety of Wal-Mart’s objection is that Plaintiffs have failed to set forth predicate claims for intentional interference with existing and prospective contractual relations. (See Def.’s Obj. at ¶ 32). These are both intentional torts, Reading Radio, 833 A.2d at 211, and therefore will support a claim of civil conspiracy provided that they are otherwise adequately alleged. As explained supra, the Court has found that Plaintiffs have set forth a claim for interference with an existing contract, but failed to set forth a claim for interference with prospective contract relations. As such, the Court will sustain Wal-Mart’s objection only insofar as Plaintiffs’ claim is rooted in Wal-Mart’s alleged interference with Plaintiff’s prospective contracts relations. Insofar as the claim is rooted in Wal-Mart’s alleged interference with Plaintiffs’ existing contractual relationship with LTS, the objection is overruled.
      Injunction

        Finally, Wal-Mart has demurred to Plaintiffs’ claim for an injunction to permanently enjoin it from opening and operating an LTS kiosk at its Oxford Supercenter location. Wal-Mart argues that Plaintiffs’ claim for injunctive relief is legally insufficient because (1) “the tortious interference and civil conspiracy claims . . . fail[] as a matter of law”; and (2) Plaintiff has, in any event, “failed to include any allegations that would support an injunction . . . under the applicable standard.”c (Def.s’ Obj. at ¶ 35 — 36).
      “To prevail on a claim for a permanent injunction, the plaintiff must establish a clear right to relief, that there is an urgent necessity to avoid an injury which cannot be compensated for by damages, and that greater injury will result from refusing rather than granting the relief requested.” Watts v. Manheim Twp. Sch. Dist., 84 A.3d 378, 390 (Pa. Cmwlth. 2014), appeal granted, 2014 WL 4494201 (Pa. Sept. 12,2014) (internal citation omitted). In contrast to a preliminary injunction, a permanent injunction does not require a showing of irreparable injury or the necessity of immediate relief. WellSpan Health v. Bayliss, 869 A.2d 990, 995 (Pa. Super. 2005). Instead, “the plaintiff must show that an actual and substantial injury has occurred and/or is threatened in the future.” Ibid. A trial court may issue a permanent injunction if it is necessary to prevent a legal wrong for which there is no adequate remedy at law. Buffalo Twp. v. Jones, 813 A.2d 659, 663-64 (Pa. 2002).
      A demurrer to a claim for injunctive relief faces a high hurdle. “To prevail on preliminary objections in the nature of a demurrer to a claim for injunctive relief, a court must find that the [claim] is clearly insufficient to establish a right to injunctive relief, and any doubt must be resolved in favor of overruling the demurrer.” Harding v. Stickman, 823 A.2d 1110, 1111 (Pa. Cmwlth. 2003) (citing P.J.S. v. Penn. State Ethics Comm’n, 669 A.2d 1105, 1113 (Pa. Cmwlth. 1996)). Judge by that standard, it is clear .that Wal-Mart’s objection must be overruled. As an initial matter, Wal-Mart cannot rely on the legal insufficiency of Plaintiffs’ tortious interference and civil conspiracy claims to sustain its objection, as the Court has already determined that these claims, at least in part, survive Wal-Mart’s demurrer. (See discussion, supra) Moreover, it is simply incorrect to assert that Plaintiffs have failed to set forth any allegations that would support the issuance of a permanent injunction. Plaintiffs have averred Wal-Mart’s contractual interference with their franchise agreement by allowing the placement of an independently operated LTS kiosk in the Oxford Supercenter location; that permanently enjoining Wal-Mart from allowing the placement and operation of such a kiosk in the future is necessary because the potential loss in revenue to Plaintiffs’ business would be speculative and “impossible to calculate”; and that the injury Plaintiffs would sustain from a refusal to issue the injunction — in the form of a loss of Plaintiffs’ customer base and future business opportunities — would be greater than any injury sustained by Wal-Mart if operation of the LTS kiosk was enjoined. (See Plfs.’ Com. at ¶¶ 128-130). That is all that is necessary to survive demurrer. Wal-Mart’s final preliminary objection is, accordingly, overruled.

        Internal Footnotes
      a As Wal-Mart points out, the allegations of Counts II and III are virtually identical and repetitious save for the labeling of Count II as one for interference with “contractual” relations and Count III as one for interference with “business” relations. The Court finds that both counts purport to set forth no more than claims for tortious interference with existing and prospective contractual relations, and will therefore treat each count as one and the same. See, Egan v. USI Mid-Atl., Inc., 92 A.3d 1, 21 (Pa. Super. 2014) (“[I]t is the duty of the court to discover from the facts alleged in a complaint the cause of action, if any, stated therein.”) (quoting Cardenas v. Schober, 783 A.2d 317, 325 (Pa. Super. 2001)).
      b The Court notes that certain other factors that a trial court considers in determining whether a defendant’s actions were “improper” also weigh in favor of allowing Plaintiffs’ claim to proceed. See, Restatement, § 766, cmt. f (Noting that typically the interests sought to be advanced by the actor through the interference are “economic” in nature, but that if the interests of the complaining party are already “consolidated into the binding legal obligation of a contract, [then] that interest will normally outweigh the actor’s own interest in taking that established right from him.”); Id. at § 767, cmt. h (Considering whether the conduct of the actor caused either direct or indirect harm to the plaintiff).
      c Wal-Mart’s objection refers the Court to Cappiello v. Duca, 672 A.2d 1373 (Pa. Super. 1996) for the proposition that Plaintiffs have failed to allege those facts necessary for issuance of a preliminary injunction. The Court notes that Plaintiffs’ Count VII seeks issuance of a permanent injunction, the propriety of which is analyzed under a different standard. See, e.g., WellSpan Health v. Bayliss, 869 A.2d 990, 995 (Pa. Super. 2005)


author: PANEPINTO, J.,

text:
    DeFranca v. Trans-Fleet Concrete, Inc.

      C.P. of Philadelphia County,
    March Term 2012,
    No. 2487

      Andrew J. DuPont, Priscilla Jiminez and Jonathan W. Miller, for plaintiffs.

      Philip D. Priore, Jonathan D. Herbst, William H. Resch, Jr. and Thomas M. Keenan, for defendants.
    Oct. 16, 2014
   PANEPINTO, J.,

Defendant/appellant, Trans-Fleet Concrete, Inc., appeals this court’s order of June 6, 2014, wherein this court denied the defendant’s post-trial motion for a new trial.

PROCEDURAL AND FACTUAL BACKGROUND

This negligence action arises out of a workplace accident which occurred on March 22, 2010. Plaintiff, Hildo F. DeFranca, was working for Girafa Construction which was contracted by Albino Concrete Construction Co. Inc. (Hereinafter “Albino”) to build foundations and footings at new homes. On March 22, 2010, plaintiff was standing on top of a nine (9) foot wall holding the hose to pour cement. The hose from the concrete pump truck clogged three times that day. On the third time, the concrete pump truck operator increased the pressure on the pump to unclog it. However, he did not give a signal to the plaintiff for him to put the hose down and get out of the way. Plaintiff was still holding the hose when the concrete pump truck operator increased the pressure on the pump. Due to the additional pressure on the pump, the hose was thrown from side to side and hit the plaintiff on the head. Subsequently, plaintiff fell off the wall he was standing on and dropped down nine (9) feet into a basement. Plaintiff sustained multiple injuries as a result of this incident.

Plaintiff identified the concrete pump truck that was owned by 5 Star Concrete Pumping, LLC (Hereinafter “5 Star”) as the concrete pump truck involved in his accident. 5 Star was a concrete pumping service formed in 2007 by Mr. Franks and Mrs. Franks. Mr. Franks owned fifty-one percent (51%) and Mrs. Franks owned forty-nine percent (49%). Prior to forming 5 Star to provide concrete pump truck services, Mr. Franks owned and operated concrete pump trucks through his ready-mix concrete delivery business, defendant Trans-Fleet Concrete, Inc. (Hereinafter “Trans-Fleet”). Mr. and Mrs. Franks were the sole officers and executives of both defendant Trans-Fleet and 5 Star. Defendant Trans-Fleet and 5 Star shared a business address, employees, and operated out of the same office space. When customers called defendant Trans-Fleet, they could order concrete and a concrete pump truck all at once. The concrete was provided by defendant Trans-Fleet. Defendant Trans-Fleet employees would provide a concrete pump truck exclusively by 5 Star. Both businesses had separate invoicing systems, bank accounts, and tax returns. Mr. Franks personally trained all 5 Star concrete pump truck operators.

The trial commenced on November 18, 2013 and concluded on November 25,2013, when the jury returned a verdict in favor of the plaintiffs, Hildo F. DeFranca, and Maria F. DeFranca, and against defendant Trans-Fleet. The jury found that 5 Star was an agent of defendant Trans-Fleet at the time of plaintiff’s accident on March 22, 2010. The jury determined that 5 Star and defendant Trans-Fleet were both negligent and their negligence was the factual cause of plaintiff’s injuries. The jury attributed 50% of the liability to 5 Star and 50% to defendant Trans-Fleet. The Jury awarded plaintiff Hildo F. DeFranca damages in the amount of Two Million ($2,000,000.00) Dollars and awarded Two Hundred and Fifty Thousand ($250,000.00) Dollars to plaintiff Maria F. DeFranca for her loss of consortium in connection to the incident that occurred on March 22, 2010. The jury found Albino was not negligent. Plaintiffs settled their claims against Albino prior to counsels’ closing arguments.

Plaintiffs timely filed a Motion for Delay Damages which this court granted in the amount of $63,590.62 to be added to the $2,250,000 jury verdict in accordance with an order dated June 6, 2014. Plaintiffs timely filed a post-trial motion to mold the verdict which this court granted as stated in an order dated June 6,2014. This court further ordered that judgment be entered in the amount of $2,313,590.62 in the plaintiffs’ favor and against defendant Trans-Fleet to reflect its own negligence and its liability for the negligence of 5 Star. Defendant Trans-Fleet timely filed a motion for post-trial relief for a new trial which this court denied pursuant to an order dated June 6, 2014. On July 9, 2014, this court entered an order pursuant to Pa.R.C.P. 1925(b) requiring the defendant to file a concise statement of errors complained of on appeal. Defendant Trans-Fleet timely filed its 1925(b) Statements and this opinion follows.

ALLEGATIONS OF ERROR

Defendant Trans-Fleet’s Rule 1925(b) statement raises numerous allegations of error on the part of this trial court in denying the defendant’s request for a new trial. This trial court opinion will address the allegations of error in points 1 through 6, which are as follows:

1. The trial court erred in submitting to the jury the question of whether Trans-Fleet Concrete, Inc. was liable as the principal of a non-party agent. Submission of the question to the jury had no legal basis, as the theory of agency and the identity of the agent had not been properly pleaded and were added to the case late, thereby prejudicing Trans-Fleet Concrete, Inc. Submission of the question to the jury also had no factual basis, since there was insufficient evidence that an agency relationship existed.
2. The trial court erred in allowing the jury to consider whether vehicles and operators involved in the accident belonged to Trans-Fleet Concrete, Inc. and/or 5 Star Concrete.
3. The trial court erred in excluding Global Position System evidence confirming that no vehicle owned or controlled by Trans-Fleet Concrete, Inc. or its alleged agent was in the vicinity of the incident site at the time it occurred.
4. The trial court erred in allowing the jury to consider whether there was negligent training by Trans-Fleet Concrete, Inc.
5. The trial court erred in denying the Motion for Summary Judgment of Trans-Fleet Concrete, Inc.
6. The trial court erred in adding a non-party, 5 Star Concrete, to the verdict sheet and then granting plaintiff’s motion to mold the verdict to eliminate the non-party’s percentage of liability, when the theory of agency and the identity of the agent had not been properly pleaded and were added to the case late, thereby prejudicing Trans-Fleet Concrete, Inc.

DISCUSSION

Defendant Trans-Fleet contends in error complained of on appeal number 1 that this trial court erred in submitting to the jury the question of whether Trans-Fleet was liable as the principal of a non-party agent. Defendant Trans-Fleet argues that the submission of the question to the jury had no legal basis because the theory of agency and the identity of the agent had not been properly plead. The purpose of the pleadings is to place the defendants on notice of the claims which they will have to defend. McClellan v. Health Maintenance Organization of Pennsylvania, 413 Pa. Super. 128 (Pa. Super. 1992). In determining whether a particular paragraph in a complaint has been stated with the necessary specificity, such paragraph must be read in context with all other allegations in that complaint. Yocoub v. Lehigh Valley Medical Assoc., 805 A.2d 579, 589 (Pa. Super. 2002). Only then can the court determine whether the defendant has been put upon adequate notice of the claim against which he must defend. Id. For the allegations in a complaint to be considered sufficient to allege an agency claim, the allegations must both identify the agent by name or an appropriate description and set forth the agent’s authority and how the tortuous acts of the agent fall within the scope of that authority. Ettinger v. Triangle-Pacific Corp., 799 A.2d 95, 109 (Pa. Super. 2002).

This trial court read the plaintiffs’ complaint in its entirety and determined that the theory of agency and the identity of the agent were properly pleaded to give defendant Trans-Fleet adequate notice as to the agency allegations. In paragraph 9 of the plaintiffs’ complaint, plaintiffs allege that the defendants “acted through their agents, servants, or employees, who were acting within the scope of their employment on the business of the defendants.” Paragraph 14 of the plaintiffs’ complaint alleged that “the cement was pumped from and through a cement truck and cement pump truck owned, operated and controlled by Albino Concrete, John Albino, Trans-Fleet, and Silva.” Furthermore, paragraph 23 of the plaintiffs’ complaint pleads that the defendants “by and through their agents, servants, workers, and/or employees, were negligent including, but not limited, to properly operate the cement truck, hose and equipment and failing to properly prepare, prime, and control the cement pump truck, hose, equipment and load.” See, complaint ¶23(11)(1).

Although 5 Star was not specifically identified by name, the plaintiffs’ complaint provided defendant Trans-Fleet with an appropriate description as to the identity of the agent. The plaintiffs’ complaint alleged that the plaintiff was injured by the equipment of a cement pump truck that was owned by defendant Trans-Fleet. Mr. and Mrs. Franks were the sole officers and executives of defendant Trans-Fleet and 5 Star. N.T. Trial, 11/19/2013, at 92, 93. Defendant Trans-Fleet owned and operated concrete pump trucks in the years 2005 and 2006. N.T. Trial, 11/19/2013, at 93. In 2007, Mr. and Mrs. Franks created 5 Star when they bought several pump trucks. N.T. Trial, 11/19/2013, at 95. In March of 2010, defendant Trans-Fleet exclusively used 5 Star’s cement pump trucks when a customer called defendant Trans-Fleet. N.T. Trial, 11/20/13, at 83, 85. Defendant Trans-Fleet’s website described 5 Star as its “sister company.” N.T. Trial, 11/20/13, at 83. Upon reading the plaintiffs’ complaint as a whole, defendant Trans-Fleet should have known that the only possible agent that the plaintiffs would be referring to was 5 Star.

If the complaint did not identify the agents with enough specificity for the defendants to have adequate notice, the defendant could have filed a preliminary objection in the nature of a request for a more specific pleading or moved to strike that portion of the plaintiff’s complaint. Yocoub v. Lehigh Valley Medical Assoc., 805 A.2d 579, 589 (Pa. Super. 2002). When the defendant did not timely call the alleged lack of specificity to the trial court’s attention by filing a preliminary objection to request a more specific pleading, it demonstrated to the court that the defendant understood the allegations of the complaint well enough to deny it in its answer. Id. at 589-590. The defendant cannot wait until the eve of trial to contest the specificity of the complaint because it did not give the plaintiffs an opportunity to file an amended complaint. Id. at 590. Under these circumstances, any objection to the lack of specificity of the complaint had been waived. Id. Here, defendant Trans-Fleet did not file a preliminary objection to request a more specific pleading or a motion to strike the agency allegations that were found in the plaintiffs’ complaint. Instead the defendant filed a motion in limine on November 12, 2013 to preclude all evidence and testimony regarding 5 Star and the theory of agency. This trial court denied defendant Trans-Fleet’s motion in limine on November 18,2013 and the trial began the same day. By not filing preliminary objections to the theory of agency and waiting for a few days before the trial to address this matter, the defendant waived any objection to the specificity of the agency allegations in the plaintiffs’ complaint.

Defendant Trans-Fleet also argues that the submission of the question to the jury lacked a factual basis since there was insufficient evidence that an agency relationship existed. An agency relationship may be created by any of the following: (1) express authority, (2) implied authority, (3) apparent authority, and/or (4) authority by estoppel. Bolus v. United Penn Bank, 525 A.2d 1215, 1221 (Pa. Super 1987). Express authority is directly granted by the principal to bind the principal as to certain matters. Id. Implied authority exists where the agent’s actions are proper and usual in the exercise of the agent’s express authority. Id. Apparent authority exists where the principal, by word or conduct, leads people with whom the alleged agent deals to believe that the principal has granted the agent the authority with which the agent purports to exercise. Turner Hydraulics, Inc. v. Susquehanna Construction Corp., 414 Pa. Super. 130, 136 (Pa. Super. 1992). Authority by estoppel occurs when the principal fails to take reasonable steps to disavow the third party of their belief that the purported agent was authorized to act on behalf of the principal. Turnway Corp. v. Soffer, 461 Pa. 477 (Pa. Super. 1975). The question of whether a principal agent relationship existed is ordinarily one of fact for the jury. Joyner v. Harleysville Insurance Co., 574 A.2d 664, 668 (Pa. Super. 1990). If the facts giving rise to the relationship are not in dispute, then the question can be properly decided by the court. Id.

Here, the facts that were presented to the Jury were in dispute, thereby, this trial court did not err in allowing the Jury to properly determine whether an agency relationship existed between defendant Trans-Fleet and 5 Star. Defendant Trans-Fleet presented the testimony of Mr. and Mrs. Franks who were the sole officers and executives of defendant Trans-Fleet and 5 Star. N.T. Trial, 11/19/2013, at 92, 93. Mrs. Franks testified that defendant Trans-Fleet delivered ready-mix concrete and 5 Star was a concrete pumping service. N.T. Trial, 11/22/2013, at 22, 23. Mrs. Franks testified that both companies had separate invoicing systems, bank accounts, tax returns, pricing, telephone numbers, and websites. N.T. Trial, 11/22/2013, at 23. On cross examination, Mrs. Franks testified that the business address for defendant Trans-Fleet and 5 Star was the same and they operated out of the same office. N.T. Trial, 11/20/2013, at 82. There was one sign outside of that business address that advertised the businesses of both defendant Trans-Fleet and 5 Star. N.T. Trial, 11/20/2013, at 83. The employees for defendant Trans-Fleet were the same employees that generated invoices and answered the phones for 5 Star. N.T. Trial, 11/20/2013, at 83. In March of 2010, when customers called defendant Trans-Fleet, they could order concrete and a concrete pump truck all with one phone call. N.T. Trial, 11/20/2013, at 83. The concrete was provided by defendant Trans-Fleet. N.T. Trial, 11/20/2013, at 83. Then, defendant Trans-Fleet’s employees provided a concrete pump truck exclusively from 5 Star. N.T. Trial, 11/20/2013, at 84-85. As the president of defendant Trans-Fleet, Mr. Franks provided the only training that was required to operate 5 Star’s concrete pump trucks. N.T. Trial, 11/19/2013, at 93, 98. Mr. John Leal, the owner of Albino, testified that when he hired defendant Trans-Fleet in 2010 to deliver concrete and a concrete pump truck, he thought that defendant Trans-Fleet supplied both the concrete and concrete pumps. N.T. Trial, 11/18/2013, at 88-89. As the evidence demonstrated at trial and was briefly summarized above, there was sufficient evidence presented which would lead the Jury to determine an agency relationship existed. Since there was a factual dispute regarding the agency relationship between defendant Trans-Fleet and 5 Star, the question was properly submitted to the Jury. Therefore, this trial court did not err and defendant Trans-Fleet’s contention of error number 1 is without merit.

Similarly, defendant Trans-Fleet contends in error complained of on appeal number 6 that this trial court erred in adding 5 Star to the jury verdict sheet when the theory of agency and the identity of the agent had not been properly pleaded and were added to the case late. As discussed in great detail in defendant Trans-Fleet error complained of on appeal number 1 (see above), this trial court determined that the theory of agency and the identity of the agent were properly pleaded and no prejudice to defendant Trans-Fleet resulted. Based on that determination, this trial court properly instructed the jury with the standard jury charge 6.00, 6.10, 6.20 regarding agency law and vicarious liability based upon apparent agency or agency by estoppel. The Jury had to determine whether 5 Star was the agent of defendant Trans-Fleet at the time of the accident. The jury also had to decide if 5 Star was negligent and whether that negligence was the factual cause of the plaintiff’s injuries. In order for this jury to provide a clear answer to these questions, this trial court properly included 5 Star on the jury verdict sheet.

Defendant Trans-Fleet’s error complained of on appeal number 6 further argues that this trial court erred in granting the plaintiffs’ motion to mold the verdict to eliminate the percentage of liability the jury attributed to 5 Star. On November 25,2013, the jury returned a verdict in favor of the plaintiffs and against defendant Trans-Fleet in the amount of $2,000,000 for plaintiff Hildo F. DeFranca and $250,000 for plaintiff Maria F. DeFranca. The jury attributed 50% of the liability to 5 Star and 50% to defendant Trans-Fleet. A trial court has the power to mold a jury’s verdict to conform to the clear intent of the jury. House of Pasta, Inc. v. Mayo, 449 A.2d 697, 701 (Pa. Super. 1982). On June 6, 2013, this trial court entered judgment in favor of plaintiffs and against defendant Trans-Fleet in the amount of $2,313,590.62 (total amount included $63,590.62 in delay damages) to reflect defendant Trans-Fleet’s direct negligence and its liability for the negligence of 5 Star which was found by the jury to be the agent of defendant Trans-Fleet. This trial court charged the Jury that, “The plaintiff claims that 5 Star concrete pumping was the agent of the defendant Trans-Fleet Concrete, Inc., which the latter denies.” N.T. Trial, 11/25/2013, at 99. Question 1 on the jury verdict sheet asked the jury whether 5 Star was an agent of defendant Trans-Fleet at the time of the plaintiff’s accident. The jury answered “yes” to that question. This trial court charged the Jury with the standard jury charge 6.10 regarding the scope of agency authority. This trial court further explained to the jury, “If you find that 5 Star concrete pumping was acting within the scope of its authority with the principal, Trans-Fleet concrete is bound by and liable for the acts of 5 Star concrete pumping.” N.T. Trial, 11/25/2013, at 101. Before the jury left for deliberations, this trial court informed them that they would be able to ask questions regarding the evidence and the law that was presented throughout the trial. The jury did not ask any questions relating to agency law or the liability of defendant Trans-Fleet if 5 Star was found to be its agent and also negligent. Therefore, the Jury was aware that defendant Trans-Fleet would be bound and liable for the acts of 5 Star. The jury found 5 Star was negligent and its negligence was the factual cause of the plaintiff’s injuries. Therefore, this trial court molded the verdict and Judgment was properly entered against defendant Trans-Fleet to reflect the clear intent of the jury to hold defendant Trans-Fleet liable for its own negligence as well as the negligence of its agent, 5 Star. Thus, defendant Trans-Fleet’s contention of error number 6 is without merit.

Defendant Trans-Fleet contends in error complained of on appeal number 2 that this trial court erred in allowing the Jury to consider whether vehicles and operators involved in the accident belonged to defendant Trans-Fleet and/or 5 Star. During the trial, ample evidence was presented that the 5 Star concrete pump truck was the truck that caused the plaintiff’s injury and that a concrete delivery truck owned by defendant Trans-Fleet was at the worksite at the time of the injury. Plaintiff testified that on the day of his fall the pump truck was yellow. N.T. Trial, 11/19/2013, at 16-17. He also identified the 5 Star concrete pump truck in a photograph that was marked as Exhibit P-4 as a true and accurate depiction of the pump truck involved in his accident. N.T. Trial, 11/19/2013, at 27. On cross examination, the plaintiff clarified that when he was asked the color of the pump truck in which he replied yellow, he was referring to the boom which is the part of the pump truck that he was holding onto. N.T. Trial, 11/19/2013, at 44. Mrs. Franks, the secretary and treasurer of Trans-Fleet and the Forty-Nine percent (49%) owner of 5 Star, testified that in March of 2010, 5 Star’s pump trucks were white with a yellow and green stripe and a yellow boom. N.T. Trial, 11/20/13, at 80, 86. Plaintiffs also read to the jury from the transcript of the deposition testimony of Mr. John Leal, the president of Albino Construction. Mr. Leal was asked by defendant Trans-Fleet whether he had any specific recollection of working with Trans-Fleet on the job where the plaintiff was injured. N.T. Trial, 11/22/2013, at 61. Mr. Leal responded that he wasn’t positive as far as Trans-Fleet working on that job site but probably. N.T. Trial, 11/22/2013, at 61. The testimony of the plaintiff, Mrs. Franks, and Mr. Leal that was presented to the Jury was sufficient evidence that could reasonably lead a Jury to conclude that Trans-Fleet and/or 5 Star’s vehicles and operators were involved in the plaintiff’s accident on March 22, 2010. Therefore, defendant Trans-Fleet’s error complained of on appeal number 2 is without merit.

Defendant Trans-Fleet contends in error complained of on appeal number 3 that the trial court erred in granting plaintiffs’ motion in limine to exclude Global Positioning System (GPS) evidence regarding the location of Trans-Fleet and 5 Star vehicles on the day of the plaintiff’s accident. Defendant Trans-Fleet argued that the GPS records were not hearsay and should have been admitted at trial as a business record of Trans-Fleet. Pa.E.R. 803(6) allows the introduction of evidence of records made at or near the time, by or from information transmitted by a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the record. All these conditions are shown by the testimony of the custodian, or other qualified witness, or by certification that complies with Rule 902 (11) or Rule 902 (12). Pa.R.E. 803(6) allows the court to exclude business records that would otherwise qualify for exception to the hearsay rule if the “sources of information or other circumstances indicate lack of trustworthiness.”

During oral argument at trial, defendant Trans-Fleet argued that the GPS data records were business records of Trans-Fleet because they were regularly kept by Mrs. Franks and she had personal knowledge of them. The GPS data records would have been introduced into evidence through the testimony of Mrs. Franks. Mrs. Franks would have testified that the GPS data records were maintained on Trans-Fleet’s work computer, updated every day, and tracked where employees traveled each day and what truck and/or equipment was used. N.T. Trial, 11/21/2013, at 87. Defendant Trans-Fleet stated that Mrs. Franks had personal knowledge of the GPS data records because she had the Five Cubits Track It system open on her office computer every day and used the printout of the information created by that system. N.T. Trial, 11/21/2013, at 87. Mrs. Franks did not create the GPS data records that defendant Trans-Fleet sought to introduce. N.T. Trial, 11/21/2013, at 89. Instead, she used the GPS data that was created by other companies. N.T. Trial, 11/21/2013, at 89. The GPS data records at issue contained GPS coordinates that were taken from a company that operated the satellite, who then forwarded the information to the Five Cubits Track It system which created the records that Mrs. Franks accessed on her Trans-Fleet computer to track the location of her employees, trucks, and equipment. N.T. Trial, 11/21/2013, at 89-90. This trial court found that Mrs. Franks did not have the requisite knowledge to establish the trustworthiness needed for GPS data records to be admitted into evidence as a business record under Pa.E.R. 803(6).

Defendant Trans-Fleet did not present a witness from the company that operated the GPS satellite or a witness from Five Cubits Track It system with knowledge that could be sufficient evidence for the trustworthiness of the GPS data records. Thus, the plaintiffs would have been precluded from cross examining the creator of the data about how the GPS tracking units were calibrated, whether the satellites were tested that day to determine if they were functional in the area where the incident occurred on March 22, 2010. Additionally, the plaintiffs would have been precluded from inquiring into how Five Cubits Track It gathered the information, created the GPS data records used by Mrs. Franks, and the reliability and accuracy of those GPS data records. Therefore, this trial court properly excluded the GPS data records as they were inadmissible hearsay due to the lack of trustworthiness created by the absence of a witness with knowledge as to the creation and accuracy of these records. For that reason, defendant Trans-Fleet’s contention of error number 3 is without merit.

Defendant Trans-Fleet argues in error complained of on appeal number 4 that this trial court erred in allowing the jury to consider whether there was negligent training by Trans-Fleet. Plaintiff testified that on the day of his fall, he was standing on top of the form holding the hose when the pump truck hose had clogged three times. N.T. Trial, 11119/2013, at 18. The third time the pump truck operator did not signal him to get out of the way and increased the pressure on the pump to unclog it. N.T. Trial, 11/19/2013, at 18. Plaintiff did not have time to put the pump down and get out of the way. N.T. Trial, 11/19/2013, at 22. When the operator put extra pressure on the pump, the pump unclogged but the hose was thrown from side to side and hit the plaintiff on the head. N.T. Trial, 11/19/2013, at 22. The plaintiffs presented the testimony of Mr. Thomas Cocchiola, P.E., an expert in the fields of mechanical and safety engineering. N.T. Trial, 11/19/2013, at 73. Mr. Cocchiola testified that the American Concrete Pumping Association manuals which address safety procedures regarding clogs and hose whipping states that the pump operator should stop the pump, get the people out of the way, and try to jog it back and forth to try and release or reduce or remove the clog, but ultimately shut it down, dissipate pressure, and then disassemble the lines and clean them out. N.T. Trial, 11/19/2013, at 81. The testimony of plaintiff indicated that the pump truck operator did not signal the plaintiff to get out the way and increased the pressure which caused the hose whipping. Mr. Cocchiola testified to a reasonable degree of mechanical and safety engineering that the pump truck operator did not meet the standard of care as described by the American Concrete Pumping Association manuals. N.T. Trial, 11/19/2013, at 86. He further testified that the concrete pump truck operator did not follow what basically is the industry custom and practice with respect to operating the pump and attending to a clog. N.T. Trial, 11/19/2013, at 86.

Mr. Franks, the owner of Trans-Fleet and the fifty-one percent (51%) owner of 5 Star, testified that as the president of Trans-Fleet he had been involved with providing training to operators of concrete pump trucks and continued to do so after 5 Star was created in 2007. N.T. Trial, 11/19/2013, at 93. Mr. Franks did not require the pump truck operators that worked for him to be tested on the owner’s manuals before they began to operate the pump. N.T. Trial, 11/19/2013, at 98. Mr. Franks required them to go through training with him before they operated the pump on their own. N.T. Trial, 11/19/2013, at 98. A jury could reasonably conclude that Trans-Fleet had a duty to train the pump truck operators based on Mr. Franks’ testimony that the only training required to work at 5 Star is with him. A jury could also reasonably conclude that Trans-Fleet’s training was negligent because the plaintiffs’ mechanical and safety engineering expert, Mr. Cocchiola, testified that the pump truck operator’s actions were below the standard of care. Based on the testimony of Mr. Franks and Mr. Cocchiola, this trial court did not err in allowing the jury to consider whether there was negligent training by Trans-Fleet. Therefore, defendant Trans-Fleet’s contention of error number 4 is without merit.

Defendant Trans-Fleet next contends in error complained of on appeal number 5 that the trial court erred in denying defendant Trans-Fleet’s motion for summary judgment. Prior to this trial, defendant Trans-Fleet filed a motion for summary judgment based on the contention that the plaintiffs could not produce any evidence that Trans-Fleet owned or operated a pump truck at the time of accident and that the plaintiffs’ agency theory should be rejected. On November 18, 2013, judge Jacqueline Allen denied that motion. This allegation of error will not be addressed herein as it is in reference to a motion for summary judgment which was decided by judge Allen and not the trial judge, judge Panepinto. Consequently, the error complained of on appeal number 5 did not provide the basis for this court’s denial of a new trial.

CONCLUSION

For all the above reasons, this court’s order of June 6, 2014, denying the defendant’s post-trial motion for a new trial should be affirmed.

      . The American Concrete Pumping Association is a trade organization that deals with concrete pumps and concrete pump safety. (79)


author: ANDERSON, J.,

text:
    Cornwall Mountain Investments L.P. v. Thomas E. Proctor Heirs Trust

      C.P. of Lycoming County,
    No. 11-00,718
    Oct. 31, 2014
   ANDERSON, J.,

In their second amended complaint, plaintiffs seek to quiet title to the oil, gas and mineral estate (hereinafter “mineral estate”) in certain land in Lewis and Cogan House Townships. Plaintiffs contend the mineral estate was severed from the surface by a reservation of the rights by Thomas E. Proctor in a conveyance to the Elk Tanning Company in 1894. Plaintiffs further contend that the mineral estate was separately assessed for taxes in 1930 and 1931 and that those taxes were not paid and thus the estate was sold , at a tax sale in 1932. In Count I, plaintiffs claim title to the property by way of Treasurer’s deeds issued following that tax sale. In Count II, plaintiffs claim title through adverse possession.

In a motion for judgment on the pleadings, plaintiffs sought judgment on Count I, based on the pleadings which set forth the facts of the tax sale in 1932 and the issuance of the deeds into Cornwall Mountain Club, its predecessor in interest, the fact that the estate was never redeemed and the fact that no action for its recovery was brought within the five-year period after the sale. Those in opposition to the motion raised various objections, all of which the court found without merit. The court therefore granted plaintiffs’ motion in an order dated August 4, 2014.

Defendant Margaret O.F. Proctor Trust (MPT) filed a motion for reconsideration on September 2,2014, and this court granted reconsideration by order dated September 9, 2014, because MPT’s assertion, that the court erred in requiring MPT to offer proof in support of its contentions regarding the validity of the sale, is correct. The court therefore required the parties to brief the following issue: if, as alleged by MPT, the heirs of Thomas E. Proctor did not receive notice of the 1932 tax sale, was that sale void and, as such, not subject to the statutes of limitations and repose?

In the motion for reconsideration, MPT alleged that the Treasurer failed to provide any notice of any tax sales in 1932, thus depriving the proctor heirs of their property without due process. Since proof that notice of the sale was actually published in 1932 has been offered by plaintiffs, MPT has withdrawn its argument that no notice of the tax sale was provided, and instead argues that the notice was not in accordance with the requirement of the statute in effect at the time, that notice be provided sixty days prior to the sale. The question remains, however: does that defect (accepting the allegation as true as part of MPT’s pleading) render the sale void such that the statutes of limitations and repose do not apply, providing a basis on which to set aside the sale?

Plaintiffs argue that the sale may not now be attacked, relying on the Act of 1815 and the six-year statute of limitations set forth at 42 Pa.C.S. Section 5527.

The Act of 1815 (allowing a two-year redemption period following a tax sale) provided that “no alleged irregularity in the assessment, or in the process or otherwise, shall be construed or taken to affect title of the purchaser, but the same shall be declared good and legal.” Plaintiffs would have this court consider the defective notice to constitute merely an “irregularity...in the process.” In Hess v. Westerwick, 366 Pa. 90, 95 (1950), however, the court found a violation of due process contained in the act of 193l’s provision that “no such sale shall be prejudiced or defeated and no title to property sold at such sale shall be invalidated by proof that such written notice was not served by the treasurer, or that such notice was not received by the owner or terre tenant as herein provided.” The court stated:

In recognition of this right to notice it has been the settled practice in this State extending back for over a century and a half to give the property owner some reasonable notice that his property is to be sold by process of law whether it be by mortgage foreclosure, execution or for tax defaults. Had the legislature provided for no notice at all there is little doubt the act would have been invalid as offending these fundamental provisions of both state and federal constitutions. Can it then by indirection do what it cannot directly do? Can it direct notice in one breath so to speak and in the next breath practically say it need not be given? To state the proposition is to answer it.

Id. at 97. In light of the inadequate property description used in the notice of sale, the lack of notice to the owner and the defectively short notice provided to someone other than the owner, the court invalidated the sale. Hess thus prevents the interpretation urged by plaintiffs.

Plaintiffs fare no better with the six-year statute of limitations set forth in 42 Pa.C.S. Section 5527. Although it is the applicable limitations period, Poffenberger v. Goldstein, 776 A.2d 1037 (Pa. Commw. 2001), and although Poffenberger could be read as applying that limitations period to a case involving failure of notice, other case law argues against it. In In re Estate of Marra v. Tax Claim Bureau, 95 A.3d 951, 956 (Pa. Commw. 2014), the Commonwealth Court invalidated a 1985 tax sale for lack of proper notice on the basis that “[i]f any of the required notices is defective, the tax sale is void and must be set aside.” True, the Marra Court noted that no statute of limitations defense had been raised. The court fails to see a difference, however, in a sale which is void for lack of notice and a sale which is void because the taxes were not delinquent. If the latter can be set aside without regard to the statute of limitations, so should the former.

Accordingly, as MPT has raised a factual issue which may provide a basis to set aside the sale, plaintiffs’ motion must be denied on that ground.

ORDER

And now, this 31 st day of October 2014, for the foregoing reasons, the order of August 4, 2014, is hereby modified to provide that plaintiffs’ motion for partial judgment on the pleadings is hereby denied. Further proceedings shall be limited, however, to the issue of whether the notice requirements of the tax sale law were complied with in the tax sale of 1932.

      . It is undisputed that plaintiff Cornwall Mountain Investments, LP, owns the surface estate.

      . There were five separate deeds issued, respecting Warrants 5753, 5666, 5751 and 5668 in Lewis Township, and Warrant 5666 in Cogan House Township.

      . The court’s order purported to grant “plaintiffs’ motion for partial summary judgment.” As the motion was for entry of judgment on the pleadings, the reference to partial summary judgment was in error.

      . The burden of proof referenced by the court is that applicable to a motion for summary judgment, not a motion for judgment on the pleadings.

      . The court assumes MPT will amend its pleading.

      . The court underscored its holding by noting the modification of the provision at issue by the Real Estate Tax Sale Law of 1947, which it characterized as the legislature’s recognition of “the absurdity of the proviso”. Hess v. Westerwick, 366 Pa. 90, 97 (1950).

      . The court stated that as the statute of limitations had run, the trial court had erred in invalidating a tax sale on the basis of deficiencies in notice. The court went on to invalidate the sale on the grounds that the taxes had been paid, however, thus rendering the statement dicta.

      . The court referenced Poffenberger, but did not clarify the matter.

      . If the owner gets no notice of a sale, he does not expect the property to be sold. If the owner pays all taxes when due, he does not expect the property to be sold.