author: HODGE, J.,

text:
    Jackman v. Jackman

      C.P. of Lawrence County,
    Nos. 10330 of 2011, C.A., 158 of 2011, D.R.

      Angelo A. Papa, for plaintiff.

      John N. Demás, for defendant.
    March 13, 2015
   HODGE, J.,

Before the Court for disposition is Defendant’s Motion to Address Marital/ Economic Issues. A brief summation of the relevant procedural and factual history of this case is summarized as follows:

The Plaintiff, Janice L. Jackman (hereinafter, “Wife”) and the Defendant, Joseph R. Jackman (hereinafter, Husband”) were married on May 20, 2000. Prior to their marriage, Plaintiff and Defendant entered into a comprehensive Ante-Nuptial Agreement, dated May 16, 2000, wherein the parties agreed to specific economic and procedural terms in the event of separation or divorce. On January 5, 2011, Husband and Wife did in fact separate, and on March 4,2011, Wife filed a Complaint in Divorce. Shortly thereafter, on March 18, 2011, Wife filed a Complaint for Support. The parties reached an interim agreement, whereby Husband agreed to pay Wife a single support payment in the amount of $500.00, and the parties agreed to continue discussions to resolve any outstanding economic issues.

On March 22,2011, Wife filed an Amended Complaint in Divorce setting forth claims for Equitable Distribution, Alimony, Alimony Pendente Lite, and Counsel Fees and Expenses. All related hearings were postponed following the filing of Wife’s Amended Complaint in Divorce as the parties attempted to reach a global settlement regarding the outstanding economic issues. Ultimately, the parties agreed to the appointment of an Equitable Distribution Master and that Wife was entitled to spousal support in the amount of $330.00 per month, retroactive to March 18,2011. Prior to this case proceeding to an Equitable Distribution Hearing, Wife sent Husband a Notice of her intent to enforce the terms of the Ante-Nuptial Agreement entered into by the parties on May 16, 2000. Thereafter, Husband motioned to cancel the equitable distribution proceedings, which request was granted by this Court. On September 15,2014, Wife filed a Petition for Contempt. Following a hearing on November 10, 2014, counsel requested the Court to enter a determination regarding the enforceability of the Ante-Nuptial Agreement, and whether the parties, through their subsequent conduct, mutually rescinded the Agreement. Following the submission of briefs, the matter is properly before the Court for a determination.

In Pennsylvania, a settlement agreement between a husband and wife is governed by the law of contracts, unless the agreement itself provides otherwise. Caccavo v. Caccavo, 565 A.2d 1199 (1989); Sonder v. Bonder, 549 A.2d 155 (1988). The same contract principles which govern the validity and interpretation of postnuptial agreements are applicable to prenuptial agreements. Adams v. Adams, 607 A.2d 1116 (Pa. Super. 1992). The law of contracts in Pennsylvania is well settled, and the “intent of the parties to a written contract is to be regarded as being embodied in the writing itself, and when the words are clear and unambiguous, the intent is to be discovered only from the express language of the agreement.” Steuart v. McChesney, 444 A.2d 659, 661 (Pa. 1982). “Absent fraud, misrepresentation, or duress, spouses should be bound by the terms of their agreements.” McMahon v. McMahon, 612 A.2d 1360, 1363 (Pa. Super. 1992) (citations omitted). As such, a trial court may interpret a marital settlement agreement like a contract, but the court has neither the power nor the authority to modify or vary the decree unless there is conclusive proof of fraud or mistake. Bianchi v. Bianchi, 859 A.2d 511, 515 (Pa. Super. 2004).

Furthermore, when construing agreements involving clear and unambiguous terms, a trial court need only look to the writing itself to give effect to the parties’ understanding. Vaccarello v. Vaccarello, 757 A.2d 909, 913-914 (Pa. 2000). A court may not modify the plain meaning of the words under the guise of interpretation. Id. A court must consider such contracts without reference to matters outside of the document, and must ascertain the parties’ intentions when entering into the contract from the entire instrument. Purdy v. Purdy, 715 A.2d 473, 475 (Pa. Super.1998). Thus, the parties are bound “without regard to whether the terms were read and fully understood, irrespective of whether the agreements embodied reasonable or good bargains.” Sabad v. Fessenden, 825 A.2d 682, 688 (Pa. Super. 2003).

After thoroughly reviewing the Ante-Nuptial Agreement, the Court turns to paragraph 18, as the Court finds this provision dispositive of the issues pending. Paragraph 18 provides:

Modification.
A modification or waiver of any of the provisions of this Agreement shall be effective only if made in writing and executed with the same formality as this Agreement. The failure of either party to insist upon strict performance of any of the provisions of this Agreement shall not be construed as a waiver of any subsequent default of the same or similar nature.

The evidence of record is void of any written agreement by the parties indicating a modification or waiver of the provisions of the Ante-Nuptial Agreement. Rather, Husband argues that the conduct of the parties in proceeding with divorce litigation inferred their intent to disregard the Ante-Nuptial Agreement entered on May 16, 2000. Given the clear language contained in the agreement, however, the Court cannot make such an inference without a written agreement executed by the parties indicating as much. Furthermore, in proceeding to equitable distribution hearings, it can alternatively be argued that the parties intended to divide the marital estate consistent with paragraph 12 of the Ante-Nuptial Agreement. Thus, a clear intent to set aside their prior agreement cannot be inferred from the parties’ past conduct.

To the extent that Wife’s Amended Complaint in Divorce sets forth economic claims, which have been expressly waived in the Ante-Nuptial Agreement, any final economic Order of Court must preclude such an award.

Consistent with this Opinion, the Court will enter the following Order of Court:

ORDER OF COURT

AND NOW, this 13th day of March, 2015, this matter being before the Court for a determination regarding the viability of the parties’ Ante-Nuptial Agreement, with Angelo A. Papa, Esquire, appearing on behalf of the Plaintiff, Janice L. Jackman, and with John N. Demás, Esquire, appearing on behalf of the Defendant, Joseph R. Jackman, and consistent with the attached Opinion, the Court hereby ORDERS and DECREES as follows:

1. Plaintiff’s Petition for Contempt, filed on September 15, 2014 is DISMISSED.

2. The Defendant’s Motion to Address Marital/ Economic Issues is GRANTED as outlined in the corresponding Opinion and the following provisions of this Order of Court.

3. The Equitable Distribution Master shall schedule further proceedings at his earliest convenience for the purposes of issuing a recommendation regarding equitable distribution consistent with the terms of the Ante-Nuptual Agreement.

4. The Prothonotary shall properly serve notice of this Order of Court and Opinion upon counsel of record for the parties and upon Robert J. DiBuono, Esquire.


source: Caselaw Access Project

author: WILLIAMSON, J.,

license: Public Domain

text:
    Hakim v. Erie Insurance Exchange

      C.P. of Monroe County,
    No. 6241 CIVIL 2013

      Michael J. Foley, for plaintiffs.

      Domenic P. Sbrocchi and Peter J. Speaker, for defendant.
    March 18, 2015
   WILLIAMSON, J.,

This matter comes before us on four separate motions filed by William Hakim and Joann Hakim (hereafter Plaintiffs), and Erie Insurance Exchange (hereafter Defendant). On November 26, 2014, Plaintiffs filed a Motion to Compel Responses to Request and Produce Documents. On December 16, 2014, Defendant filed a Motion to Sever and Stay Bad Faith and Extra-Contractual Claims. On December 16, 2014, Defendant filed a Motion to Amend Answer and New Matter. On December 19, 2014, Defendant filed an Answer to Plaintiffs’ Motion to Compel, along with Objections to Plaintiffs’ Proposed Subpoena to Valley Sports & Arthritic Surgeons (VSAS).

Background

In the underlying Complaint filed by Plaintiffs, they allege that William Hakim was operating his vehicle on Route 611 in the Borough of Mount Pocono when Edward Reynolds illegally entered an intersection and caused a violent collision with Mr. Hakim’s vehicle causing Mr. Hakim serious injuries, damages, and losses. At the time of the accident, Mr. Hakim had liability, first party medical benefit, and underinsured motorist coverage through Erie Insurance Exchange. Defendant has paid some medical benefits, but denied others. Plaintiffs filed an action for underinsured motorist benefits. Plaintiffs also brought a bad faith claim against Defendant alleging a violation of Section 1712 of the Motor Vehicle Financial Responsibility, which Plaintiffs state requires that Defendant pay for all reasonable and necessary medical treatment received by Mr. Hakim due to injuries sustained from the accident.

On October 23, 2013, and September 2, 2014, the Plaintiffs served Interrogatories and Request for Production of Documents requesting the financial information of Dr. DiBenedetto. He had performed a medical examination of the Plaintiff at the request of Defendant, on November 17, 2008. The Defendant filed objections to this request and to supplemental interrogatories requesting information about contact between the Defendant and Infinity Insurance Company. Plaintiffs argue that Defendant knew Dr. DiBenedetto was a biased evaluator and their objections are meritless. Plaintiffs allege that Defendant has had all of Plaintiffs’ medical information and reports since February 19, 2006. Plaintiffs further argue that Defendant has denied medical benefits based on the information provided by Dr. DiBenedetto.

Argument

Plaintiffs’ Motion to Compel Defendant’s Responses to Requests for Production of Documents

In their Motion to Compel Defendant’s Responses to Requests for Production, Plaintiffs’ request that Defendant provide: 1) The Erie Claims Manual in effect in February 2007, 2) Audrey Ziegler’s claim file, which Plaintiffs agree to maintain confidentially absent further Court Order, 3) The financial relevance between Defendant and Dr. DiBenedetto set forth in Plaintiffs’ Interrogatories and Request to Produce, and 4) Interrogatories requesting all contact between Infinity (the automobile insurance carrier for a third-party defendant in a related claim) and Defendant.

Subject to the provisions of Rules 4003.2 to 4003.5 inclusive and Rule 4011, a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. Pa.R.C.R No. 4003.1.

No discovery, including discovery of electronically stored information, shall be permitted which: (a) is sought in bad faith; (b) would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party; (c) is beyond the scope of discovery as set forth in Rules 4003.1 through 4003.6; (d) is prohibited by any law barring disclosure of mediation communications and mediation documents; or (e) would require the making of an unreasonable investigation by the deponent or any party or witness. Pa.R.C.P.No.4011.

I. The Erie Claims Manual

In their Motion to Compel Defendant’s Responses to Requests for Production, Plaintiffs’ request that Defendant provide their claims manual which was in effect in February 2007. A trial court may consider the insurer’s claims manual when considering bad faith. Zappile v. AmexAssur. Co., 928 A.2d 251, 258 (2007). An insurance company’s manual, which dictates a certain philosophy in claims handling, may be relevant and useful in evaluating a bad faith claim. Bonenberger v. Nationwide Mut. Ins. Co., 791 A.2d 378, 382 (2002).

While the Erie Claims Manual which was in effect in February 2007 is likely discoverable, this Court will stay a decision on this particular matter at this time pending submission of the claims manual by the Defendant to this Court for an in camera inspection, together with a detailed explanation of the matters claimed to be privileged and confidential, with a copy of such explanation supplied to Plaintiffs’ counsel. The submission shall be made directly to the Court within thirty (30) days.

II. Audrey Ziegler’s Claim File

In their Motion to Compel Defendant’s Responses to Requests for Production, Plaintiffs’ request that Defendant provide them with Audrey Ziegler’s personnel file. Plaintiffs argue that this is discoverable because Ms. Ziegler was the adjuster who handled Mr. Hakim’s claim and her personnel file may lead to admissible evidence.

As of this time, Defendants have failed to articulate a specific reason as to why the discovery of Audrey Ziegler’s claim file in this matter is not relevant. Audrey Ziegler is allegedly no longer employed by Defendant, but the Plaintiffs can still seek this information. The claim file could be relevant to the underlying bad faith claim, and the contract claim. We agree that privileged/ confidential information need not be disclosed (i.e. adjuster or Defendant’s value of the case; attomey/client communications) and Defendant may redact necessary privileged and confidential information not relevant to the bad faith claim.

III. The financial relevance between Defendant and Dr. DiBenedetto

In their Motion to Compel Defendant’s Responses to Requests for Production, Plaintiffs’ request that Defendant provide information regarding the financial relationship between Defendant and Dr. DiBenedetto. This includes a request for Defendant to produce how many examinations, PRO’s, URO’s, depositions or other evaluations of any type that Dr. DiBenedetto conducted on behalf of Defendant, listing case and attorney; for each year from 2003 through 2007. Plaintiffs also request that Defendant produce copies of any and all 1099’s or W-2’s issued to Dr. DiBenedetto between 2004 and 2009. Plaintiffs argue such information is discoverable due to Dr. DiBenedetto’s financial compensation for work performed at the Defendant’s request.

In J.S. v. Whetzel, the Superior Court of Pennsylvania held that a party may impeach an expert witness by examining his relationship with the counsel calling him and any previous participation in certain types of litigation, so long as this inquiry is relevant to the main issue before a court. J.S. v. Whetzel, 860 A.2d 1112, 1121 (2004). In Feldman v. Ide, the Superior Court of Pennsylvania held that the trial court did not have authority to order a defendant to disclose five years of medical expert’s income information, and thus, even if plaintiff in a negligence case was able to demonstrate a significant pattern of compensation related to the expert’s testimony, an order granting plaintiff’s discovery request, seeking, among others, five years of the expert’s federal income tax returns and other tax records relating to services rendered by the expert in personal injury cases, was overly broad. Feldman v. Ide, 2007 PA Super 10, 915 A.2d 1208 (2007).

In Cooper v. Schoffstall, the Supreme Court of Pennsylvania found that there were procedures supporting adequate trial preparation on the issue of potential bias of a non-party expert witness less burdensome than production of personal financial records. Cooper v. Schoffstall, 588 Pa. 505, 527, 905 A.2d 482, 496 (2006). In a concurring opinion, Justice Newman wrote separately to “emphasize his belief that pursuing the personal financial information of an expert witness is, with few exceptions, an abuse of the discovery process.” Cooper v. Schoffstall, 588 Pa. 505, 528, 905 A.2d 482, 496-97 (2006) (Newman, J., concurring).

At this time, this Court finds that there are less burdensome procedures to establish any potential bias of Dr. DiBenedetto in this case than the production of his personal financial information and tax returns. Plaintiffs can obtain relevant information through depositions and will be able to cross-examine Dr. DiBenedetto at the time of trial about his compensation for each IME, how many he routinely performs, etc. We see no exception to the general rule here that warrants production of this information. Therefore, the Motion to Compel the financial information of Dr. DiBenedetto will not be granted at this time.

IV. Contact between Defendant and Infinity.

In their Motion to Compel Defendant’s Responses to Requests for Production, the Plaintiffs request that Defendant respond to Supplemental Interrogatories which state: “Please identify any contact you/or anyone from Erie Insurance has had with anyone representing Infinity Insurance Company throughout the course of this litigation regarding Mr. Hakim’s claim.”

Generally, we agree that there is nothing privileged or confidential about the requested information. It also appears relevant. Therefore, such information is discoverable.

However, the Defendant objected to the discovery as Plaintiffs exceeded the limit for the total amount of interrogatories allowed without leave of Court under the local rule. “Except upon leave of Court or agreement of the parties, interrogatories, including subpart thereto, shall not exceed twenty-five (25) in number.” PA. R. MONROE CTY. CT. RCP. Rule 4005. Plaintiffs have not obtained leave of Court and the Defendant contends the total number of interrogatories exceeds twenty-five (25) in number. Plaintiffs contend the Defendant previously submitted Interrogatories in excess of 25, too, so essentially, it is fair. The Plaintiffs miss the point of the Rule; that being that if a party objects to a party exceeding the limit, the matter shall be brought before the Court to determine if it would be reasonable to allow more. Each instance is fact-specific. Whether or not the other side had done likewise or not without objection is not the issue, (although it could be a factor in the Court’s determination of what is reasonable when a request is brought before the Court). The issue is whether or not there is an objection, and if so, has the non-objecting party filed a Motion to Exceed the Maximum Number of Interrogatories to properly bring the matter before the Court. This matter is currently before the Court on a Motion to Compel a Response which is not the proper procedure.

In any event, in the interest of time and judicial economy, and in hopes counsel will work better together in the future on these issues, we will accept Plaintiffs’ Motion to Compel as a Motion to Exceed the Maximum Allowable Interrogatories. We will also grant that request. We express our opinion that the requested information of contact with Infinity Insurance is relevant, but do not issue an Order in that regard as Defendant’s obligation now that the objection is overruled is to Answer or raise a different objection if grounds exist to do so. Therefore, Plaintiffs’ Motion to Compel an answer to that specific interrogatory is denied at this time as moot.

Defendant’s Motion to Amend New Matter and Assert Statute of Limitations Defense

A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, add a person as a party, correct the name of a party, or otherwise amend the pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted. Pa.R.C.P. No. 1033.

A trial court’s discretion to grant or deny permission to amend a pleading is not unfettered, and amendments should be allowed liberally at any stage of the case unless they violate law or prejudice rights of an opposing party. Gutierrez v. Pennsylvania Gas & Water Co., 507 A.2d 1230 (1986). The time at which amendment is sought is a factor to be considered in deciding whether to grant or deny permission to amend a pleading, but only insofar as it presents a question of prejudice to an opposing party. Id. A trial court’s denial of a petition to amend a pleading is an abuse of discretion where denial is based on nothing more than unreasonable delay. Id.

Although leave to amend a pleading is within the sound discretion of a trial court, amendments to an answer to plead an affirmative defense should be allowed unless they violate law or prejudice rights of an opposing party. Soxman v. Goodge, 372 Pa. Super. 343, 539 A.2d 826 (1988).

In their Response to Defendant’s Motion, Plaintiffs cite a case from the Court of Common Pleas of Lycoming County. In Allen v. Lipson, the issue before the court was whether defendants had to plead the material facts on which an affirmative defense was based in their new matter. Allen v. Lipson, 8 Pa. D. & C. 4th 390, 391 (Lycoming Cty., 1990). In that case, the new matter set forth the affirmative defense of contributory negligence in general terms that the court stated were totally unsupported by factual allegations. Id. The court in that case held that the defendants had to plead the material facts on which their affirmative defense of contributory negligence was based. Id.

In their Response to Defendant’s Motion, Plaintiffs also cite to Catania v. Hanover Ins. Co., a case in which the Superior Court of Pennsylvania stated that, “We recognize the Commonwealth’s policy of permitting liberal amendment of pleadings. Nevertheless, such a policy does not extend to the amendment of pleadings for the purpose of asserting a defense not provided by law.” Catania v. Hanover Ins. Co., 389 Pa. Super. 144, 151, 566 A.2d 885, 889 (1989). However, that holding is not relevant here because the affirmative defense promulgated by Defendant, statute of limitations, is provided by law.

Here, Defendant intends to assert the affirmative defenses of statute of limitations and bankruptcy; both of which are provided by law. Since amendments to pleadings are to be liberally allowed, Defendant will be allowed to amend their new matter to assert these affirmative defenses. However, Defendant must assert the factual basis for these affirmative defenses with specificity in the amendment to new matter.

Defendant’s Motion to Sever and Stay Bad Faith and Extra Contractual Claims

First, we will address the issue of whether to sever the bad faith claims from the contractual claims. Defendant argues that Plaintiffs are already seeking discovery for their bad faith claim which is irrelevant to and would prejudice the contractual UIM and PIP cases. Defendant argues that, even in the absence of such discovery, bifurcation is necessary in order to avoid loss of privilege at trial, unfair prejudice, confusion, inconsistent verdicts, inconvenience, and a waste of resources.

The court, in furtherance of convenience or to avoid prejudice, may, on its own motion or on motion of any party, order a separate trial of any cause of action, claim, or counterclaim, set-off, or cross-suit, or of any separate issue, or of any number of causes of action, claims, counterclaims, set-offs, cross-suits, or issues. Pa.R.C.P. No. 213(b). The court should base its decision on a case-by-case basis.

In their Brief in Opposition to Defendant’s Motion to Sever, Plaintiffs cite Birth Center v. St. Paul Co. Inc., a case in which the Superior Court of Pennsylvania held that an “Insurer’s refusal to settle a claim within policy limits without a bona fide belief that it has a good possibility of winning, constitutes breach of its contractual duty to act in good faith and its fiduciary duty to its insured, and thus, insurer is liable for known and/or foreseeable compensatory damages of its insured that reasonably flow from the bad faith conduct of the insurer.” Birth Ctr. v. St. Paul Companies, Inc., 567 Pa. 386, 787 A.2d 376 (2001). Plaintiffs argue that, similarly, there could be consequential damages such as emotional distress from failure to allow proper medical care in this case. Plaintiffs assert that this supports the notion that the Motion to Sever should be denied. However, there was no issue involving severance decided in Birth Ctr. v. St. Paul Co. Inc., and that case is not relevant to the issue at hand as of this time.

In Orsulak v. Penn National, this Court stated: “Evidence put forth in the bad faith claim for the Court to consider would likely confuse the jury and its role in the proceedings. Certain information disclosed for purposes of the bad faith claim could also prejudice the jury against [the defendant].” Orsulak v. Penn National, No. 4255-CV-2011 (C.P. Monroe Co. Jan. 14, 2013, Williamson, J.).

As in Orsulak, this case involves a motion to sever bad faith claims against an insurance company from contractual claims against that insurance company. We find the Defendant in this case would be prejudiced by joining the bad faith claims with the contractual claims during the trial. There may be information that is relevant to the bad faith claim that is not relevant to the contractual claims which would prejudice Defendant in the eyes of the juiy. There is no indication at this time that the need for judicial economy outweighs the prejudice. Furthermore, for the reasons set forth in our prior decision in Orsulak, supra., we will grant the motion to sever the bad faith claim in this matter.

Next, the Defendant argues that this Court should stay discovery with respect to the bad faith claims pending resolution of the contractual claims. In Gunn v. Automobile Ins. Co. of Hartford, CT, the Superior Court of Pennsylvania stated:

“[The] trial court order, denying automobile insurer’s motion to stay insured’s bad faith claim and preclude discovery pertaining only to that claim until resolution of insured’s breach of contract claim, did not implicate a right deeply rooted in public policy so as to warrant immediate appellate review as collateral order in action arising from insurer’s nonpayment of underinsured motorist (UIM) benefits; insurer’s concerns that courts and parties would be required to engage in protracted discovery and preparation for litigation that might prove unnecessary did not outweigh countervailing interests of avoiding piecemeal litigation or delay.”

Gunn v. Auto. Ins. Co. of Hartford, Connecticut, 2009 PA Super 70, 971 A.2d 505 (2009).

In Orsulak v. Penn National, this Court granted the defendants’ motion to sever the bad faith claim from the contractual insurance claims, but denied the defendants’ motion to stay discovery on the bad faith claim pending resolution of the contractual claims. Orsulak v. Penn National, supra. The reasoning was that staying all discovery with respect to the bad faith claim would cause unnecessary delay and there were better measures the Court could take to avoid prejudice during the discovery process once prejudice was shown. Id. See also Cocuzza v. Castro, No. 406 Civil 2012 (C.P. Monroe Co., July 12, 2012, Zulick, J.) (Court denied preliminary objections and allowed case to remain consolidated until discovery was completed).

Similarly, in this case, staying discovery on the bad faith claims until after the resolution of the contractual claims would unfairly delay a conclusion of all proceedings. Staying discovery on the bad faith claims would cause unnecessary delay, and there are more efficient measures this Court can use to protect the Defendant from prejudice while not ordering a blanket freeze on all discovery with respect to the bad faith claims. Furthermore, moving the cases along at the same pace, with discovery in both cases, may lead to a quicker resolution for the actual parties and a better understanding of the actual issues.

At this time in the litigation, Defendant has failed to demonstrate any actual prejudice to dual discovery. Defendant argues that certain discovery which has already been requested, such as claims manuals and personnel files, are inappropriate for simultaneous discovery with the contractual claims. Defendant also argues that simultaneous discovery will make settlement negotiations virtually impossible. Defendant has only made these general claims of potential prejudice at this time. If actual prejudice can be shown as the discovery process continues, this Court can always bar certain discoveiy as it pertains to the bad faith claims until the resolution of the contractual claims. As in Gunn and Orsulak, the Defendant’s concerns regarding protected discovery when it comes to the bad faith claims do not outweigh the countervailing interests of avoiding piecemeal litigation or delay by staying all discovery with respect to the bad faith claims pending resolution of the contractual claims. Furthermore, in the interest of time, costs, and potential settlement, providing full discovery on all issues would likely speed up, rather than delay, and costs could be less. Issues often resulting in dual discoveiy may not arise. Judicial economy, and any hope for an agreed resolution in this case will require discoveiy of all issues.

Therefore, Defendant’s Motion to Sever the bad faith claims from the contractual claims is granted; however, Defendant’s Motion to Stay discovery with respect to the bad faith claims pending resolution of the contractual claims, is denied.

Defendant’s Objections to Plaintiffs’ Proposed Subpoena to VS AS

On December 3, 2014, Plaintiff filed a proposed subpoena which requests that VS AS produce, “any communication, correspondence, memorandums, reports; including any records of any communication and payments, billing statements between VS AS, Dr. DiBenedetto, and Erie Insurance Company, including Audrey Ziegler, but not limited to her.” Defendant filed Objection to this Proposed Subpoena to VS AS by Plaintiff.

If objections are received by the party intending to serve the subpoena prior to its service, the subpoena shall not be served. The court upon motion shall rule upon the objections and enter an appropriate order. Pa.R.C.P. No. 4009.21(d)(1).

Rule 4003.5 specifically addresses discovery related to expert witnesses who are expected to testify at trial, where such information is “otherwise discoverable” under Rule 4003.1, which recognizes that privileged documents are not discoverable. Generally, a party may discover “facts known and opinions held by an expert” through interrogatories requiring the party to identify the testifying expert witness, the subject matter on which the expert will testify, “the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” Pa.R.C.P. 4003.5(a)(1)(b). Moreover, “upon cause shown, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions concerning fees and expenses as the court may deem appropriate.” Pa.R.C.P. 4003.5(a) (2), Barrick v. Holy Spirit Hosp. of Sisters of Christian Charity, 91 A.3d 680, 687 (Pa. 2014).

In Barrick, the Superior Court of Pennsylvania found that parties may seek discovery of information through interrogatories propounded under Rule 4003.5(a)(1) and where appropriate, may obtain further discovery “upon cause shown” as supervised by our trial courts in accord with 4003.5(a)(2). Barrick v. Holy Spirit Hosp. of Sisters of Christian Charity, 91 A.3d 680, 688 (Pa. 2014). Additionally, the court stated that an expert’s opinions can be challenged on cross-examination. Id. The court held that it was preferable to err on the side of protecting the attorney’s work product by providing a bright-line rule barring discovery of attorney-expert communications. Id.

In Cooper v. Schoffstall, the Supreme Court of Pennsylvania held that the threshold showing to establish cause for supplemental discovery related to potential favoritism of a non-party expert witness retained for trial preparation is of reasonable grounds to believe that the witness may have entered the professional witness category. Cooper v. Schoffstall, supra. The court stated that, in other words, the proponent of the discovery should demonstrate a significant pattern of compensation that would support a reasonable inference that the witness might color, shade, or slant his testimony in light of the substantial financial incentives. Id.

Discovery along these lines should be of the least burdensome and intrusive kind possible, and that the appropriate entry point, upon the showing of cause, is a deposition by written interrogatories under Rule 4004. Id. The court in Cooper continued to expand on this notion and stated that:

“Through this vehicle, and subject to the trial court’s exercise of its sound discretion, the proponent of the discovery may be permitted to inquire as to the following: the approximate amount of compensation received and expected in the pending case; the character of the witnesses’ litigation-related activities, and, in particular, the approximate percentage devoted to specific types of litigation and/or work on behalf of a particular litigant, class of litigant, attorney, and/or attorney organization; the number of examinations, investigations, or inquiries performed in a given year, for up to the past three years; the number of instances in which the witness has provided testimony within the same period; the approximate portion of the witness’s overall professional work devoted to litigation-related services; and the approximate amount of income each year, for up to the past three years, garnered from the performance of such services.”

Id.

The Supreme Court of Pennsylvania found that there were procedures supporting adequate trial preparation on the issue of potential bias of a non-party expert witness that was less burdensome than production of personal financial records. Id. Similarly, here, there are less burdensome procedures to obtain information regarding the potential bias of Dr. DiBenedetto than a subpoena to VSAS compelling the production of financial information and billing statements related to Dr. DiBenedetto. This is an end around to the request for Dr. DiBenedetto’s personal tax records. As in Barrick, the proper method of trial preparation for potential bias of an expert witness is through interrogatories and depositions. Plaintiffs have failed to demonstrate the significant pattern of compensation required to deem Dr. DiBendetto a professional witness for the purposes of supplemental discovery at this time. Even if Dr. DiBenedetto were to be deemed a professional witness, there are less burdensome means of supplemental discovery than Plaintiffs’ proposed subpoena to VSAS, including taking the doctor’s deposition. Thus, Defendant’s objections to Plaintiffs’ proposed subpoena to VSAS are granted.

Conclusion

Therefore, Plaintiffs’ Motion to Compel Defendant’s Responses to Requests for Production is granted as to the claim file of Audrey Ziegler. It is denied as to the financial information of Dr. DiBenedetto. The Motion to Compel taken as a Motion to Exceed Limit of Interrogatories to allow questions about the contact between Defendant and Infinity is granted. This court will stay its decision on the Motion to Compel the Erie claims manual pending further information to be submitted to the court regarding which portions are relevant and which are confidential. Defendant’s Motion to Amend New Matter and Assert Statute of Limitations will be granted, but any affirmative defenses must be plead with specificity with supporting factual averments. Defendant’s Motion to Sever is granted but Defendant’s Motion to Stay Discovery is denied as of this time. Also, Defendant’s Objections to Plaintiffs’ Proposed Subpoena to VS AS are granted.

ORDER

AND NOW, this 18th day of March, 2015, upon Motion of Plaintiffs to Compel Defendant’s Responses to Requests for Production, Motion of Defendant to Amend New Matter and Assert Statute of Limitations, Motion of Defendant’ to Sever and Stay, and Defendant’s Objections to Plaintiffs’ Proposed Subpoena to VS AS, it is ORDERED and DECREED as follows:

1. Plaintiffs’ Motion to Compel Defendant’s Responses to Requests for Production is GRANTED consistent with the Opinion of this Court. However, the Defendant shall, within 30 days of the date of this Order, provide this Court with a copy of the Erie Claims Manual which was in effect in February 2007 for an in camera review, together with an explanation provided to this Court with a copy of the explanation to Plaintiffs’ counsel as to why portions are privileged or confidential. The Defendant shall provide the claim file, with redaction of any privileged or confidential information concerning the value of the case or attorney/client communication. The Plaintiffs’ Motion to Compel as to the Interrogatory concerning contact with Infinity Insurance is taken by this Court as a Request to Exceed the Maximum Number of Interrogatories and is GRANTED. Defendant’s objection to same is OVERRULED.
2. Defendant’s Motion to Amend New Matter andAssert Statute of Limitations and Bankruptcy is GRANTED.
3. Defendant’s Motion to Sever Plaintiffs’ Bad Faith Claims is GRANTED
4. Defendant’s Motion to Stay Discovery on Plaintiffs’ Bad Faith Claims is DENIED.
5. Defendant’s Objections to Plaintiffs’ Proposed Subpoena to VSAS are GRANTED.


author: BELTRAMI, J.,

text:
    Citimortgage Inc. v. Bethlehem Area School District

      C.P. of Northampton County,
    No. C-48-CV-2012-5607

      Michael P. Coughlin and Jessica A. Kubisiak, for plaintiff.

      William J. Fries, for defendants.
    May 22, 2015
   BELTRAMI, J.,

This matter is before the Court on the Motion for Summary Judgment filed by Plaintiff Citimortgage, Inc. (“Citi’s Motion”) on December 18, 2014, and the Motion for Summary Judgment filed by Defendants Sandra K. Triantafelow and John R. Triantafelow (“Defendants’ Motion”) on December 5, 2014. The case was submitted to the undersigned, on briefs, at the February 24, 2015, session of Argument Court.

This case began on June 8, 2012, when Defendant Bethlehem Area School District (“BASD”) filed a Tax Claim against Defendant Sandra K. Triantafelow, seeking to obtain a municipal lien on property she owned located at 2068 6th Street, Bethlehem Township, Pennsylvania, Tax Parcel No. N7NE4 4 11 (“Property”), as a result of her non-payment of $3,245.23 in school real estate taxes for the years 2011 and 2012. The Tax Claim was docketed in this Court at the instant docket number and ultimately resulted in a default judgment in favor of BASD on October 23, 2012, and a sheriff’s sale of the Property on August 9, 2013.

On June 5, 2014, Citi, citing a mortgage it had on the Property, filed a Petition to Redeem the Property, pursuant to 53 P.S. § 7293, to which Defendants filed an Answer with New Matter on July 1, 2014. Citi’s Petition and the Answer thereto were docketed in this Court at docket No. C-48-CV-2014-5281. On July 16, 2014, Citi filed another Petition to Redeem (“Petition”), and Defendants filed another Answer with New Matter on July 23, 2014. By a stipulation of the parties that was approved as an Order of Court by the Honorable Craig A. Dally on July 31, 2014, Citi’s Petition and all related filings, past and future, were transferred to and deemed filed under the instant docket number. Both Citi and Defendants move for summary judgment with regard to Citi’s Petition. Citi filed a Response to Defendants’ Motion for Summary Judgment on December 31, 2014, Defendants filed a Response to Citi’s Motion for Summary Judgment on January 14, 2015, and both Citi and Defendants have filed briefs.

The record reveals the following facts. The Property was deeded to Defendant Sandra K. Triantafelow on June 20, 1990. (Defs.’ Mot. ¶ 15, Ex. H; Citi’s Resp. ¶ 15.) On or about April 5, 2000, Associates Home Equity Consumer Discount (“Associates”) extended to Defendant Sandra K. Triantafelow a loan in the original principal amount of $158,838.22, the settlement of which occurred on April 5, 2000. (Citi’s Mot. ¶¶10-12, Ex. 3; Defs.’ Resp. ¶¶ 10-12.) To secure the loan, Defendant Sandra K. Triantafelow executed a mortgage in favor of Associates. (Citi’s Mot. ¶ 14, Ex. 5; Defs.’ Resp. ¶ 14.) Citi is the current holder of the loan and mortgage. (Citi’s Mot. ¶ 15; Defs.’ Resp. ¶ 15.) The mortgage was not, and is not, recorded. (Defs.’ Mot. ¶¶ 22-23; Citi’s Resp. ¶¶ 22-23.) The original mortgage has been lost and cannot be located. (Citi’s Mot. ¶ 17; Defs.’Resp. ¶ 17.)

As stated above, on August 9, 2013, the Property was sold at a sheriff’s sale. (Citi’s Mot. ¶ 22; Defs.’ Resp. ¶ 22.) The successful bidder at the sheriff’s sale was Ronald R. Stauffer, who submitted a bid of $22,900.00. (Citi’s Mot. ¶ 23; Defs.’ Resp. ¶ 23.) Thereafter, on September 30, 2013, Mr. Stauffer assigned his successful bid to Defendant John R. Triantafelow for the purchase price of $30,900.00. (Citi’s Mot. ¶¶ 24-25, Ex. 6; Defs.’ Resp. ¶¶ 24-25.) By deed dated January 7,2014, the Northampton County Sheriff conveyed title to the Property to Mr. Triantafelow. (Citi’s Mot. ¶ 26, Ex. 7; Defs.’ Resp. ¶ 26.) The deed acknowledging the sheriff’s sale was recorded on January 13,2014, in the Northampton County Recorder of Deeds’ Office at Book 2014-1, Page 6761. (Citi’s Mot. ¶¶27-28, Ex. 7; Defs.’ Resp. ¶¶ 27-28.)

Citi moves for summary judgment on the theory that because it had a mortgage which constituted a lien on the Property at the time it was sold, and because holders of liens stripped from a property by a sheriff’s sale are entitled to redeem such property, Citi is entitled, as a matter of law, to redeem the Property. Defendants oppose Citi’s Motion and they move for summary judgment on the theory that Citi’s unrecorded mortgage did not constitute a lien under applicable law. Thus, Defendants argue, Citi is not entitled to redemption. Alternatively, Defendants argue that even if Citi’s mortgage constituted a lien and Citi is, as a result, entitled to redemption, issues of fact remain as to the amount Citi would be required to pay to Defendant John R. Triantafelow for such redemption.

Pennsylvania Rule of Civil Procedure 1035.2 establishes the standard of review for a motion for summary judgment as follows:

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

Pa.R.C.P. No. 1035.2. These two prongs represent the

two main avenues per which summaiy relief may be granted. Employing the first of these, a movant may rely on uncontroverted facts, and/or allow that the factual allegations made by the non-moving party could be true, while contending that, even accepting such facts, judgment should be rendered for the movant as a matter of law. See Pa.R.C.P. No. 1035.2(1). Alternatively, after discovery, a party may challenge the ability of the non-moving party to adduce evidence of facts material to establishing a claim or defense. See id. No. 1035.2(2).

Lance v. Wyeth, 85 A.3d 434, 449-450 (Pa. 2014).

Under either avenue, summary judgment may only be granted when the record clearly shows that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010). The moving party bears the burden of proving that no genuine issue of material fact exists. Barnish v. KWI Bldg. Co., 916 A.2d 642, 645 (Pa. Super. 2007). In deciding a motion for summary judgment, the record must be viewed in the light most favorable to the non-moving party, and any doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. Ario v. Ingram Micro, Inc., 965 A.2d 1194, 1200 (Pa. 2009). Even where the facts are agreed upon, summary judgment cannot be entered if the facts can support conflicting inferences. Washington v. Baxter, 719 A.2d 733, 740 n.10 (Pa. 1998).

The party opposing a motion for summary judgment
may not rest upon the mere allegations or denials of the pleadings but must file a response within thirty days after service of the motion identifying
(1) one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion, or
(2) evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.

Pa.R.C.P. No. 1035.3(a)( 1 )-(2). In other words, the “[fjailure of a non-moving party to adduce sufficient evidence on an issue essential to its case and on which it bears the burden of proof such that a jury could return a verdict in its favor establishes the entitlement of the moving party to judgment as a matter of law.” Young v. Commonwealth, Dep’t of Transp., 744 A.2d 1276, 1277 (Pa. 2000). In deciding a motion for summary judgment, the “record” available for the court’s examination includes the pleadings, discovery materials, affidavits, and expert reports. Pa.R.C.P. No. 1035.1.

(a) The owner of any property sold under a tax or municipal claim, or his assignees, or any party whose lien or estate has been discharged thereby, may, except as provided in subsection (c) of this section, redeem the same at any time within nine months from the date of the acknowledgment of the sheriff’s deed therefor, upon payment of the amount bid at such sale; the cost of drawing, acknowledging, and recording the sheriff’s deed; the amount of all taxes and municipal claims, whether not entered as liens, if actually paid; the principal and interest of estates and encumbrances, not discharged by the sale and actually paid; the insurance upon the property, and other charges and necessary expenses of the property, actually paid, less rents or other income therefrom, and a sum equal to interest at the rate of ten per centum per annum thereon, from the time of each of such payments ....
(b) Any person entitled to redeem may present his petition to the proper court, setting forth the facts, and his readiness to pay the redemption money; whereupon the court shall grant a rule to show cause why the purchaser should not reconvey to him the premises sold; and if, upon hearing, the court shall be satisfied of the facts, it shall make the rule absolute, and upon payment being made or tendered, shall enforce it by attachment.

53 P.S. § 7293(a)-(b) (emphasis added). Further, “[n]o mortgage, or defeasible deed in the nature of a mortgage, shall be a lien, until such mortgage or defeasible deed shall have been recorded, or left for record, as aforesaid.” 21 P.S. § 622.

The parties appear to agree on all material facts and on the notion that if Citi’s mortgage was a lien at the time of the sheriff’s sale, Citi is entitled to redeem the Property. Thus, the instant dispute boils down to one question of law: Was Citi’s unrecorded mortgage a lien on the Property at the time of the sheriff’s sale? As the recording act codified at 21 P.S. § 622 unambiguously answers this question in the negative, it is clear that Citi cannot redeem the Property. See also Foster’s Appeal, 3 Pa. 79, 80 (1846) (“No mortgage is a lien until recorded, or left for record ....”)

WHEREFORE, the Court enters the following:

ORDER OF COURT

AND NOW, this 22nd day of May, 2015, Plaintiff Citimortgage, Inc.’s Motion for Summary Judgment, filed on December 18, 2014, is hereby DENIED. Defendants Sandra K. Triantafelow and John R. Triantafelow’s Motion for Summary Judgment, filed on December 5, 2014, is hereby GRANTED.

Plaintiff Citimortgage, Inc.’s Petitions to Redeem Property, filed at docket number C-48-CV-2014-5281 on June 5, 2014, and July 16, 2014, and transferred to the instant docket number on July 31, 2014, are hereby DENIED, with prejudice.

Plaintiff Citimortgage, Inc.’s Praecipe to Enter Lis Pendens, filed at docket number C-48-CV-2014-5281 on November 21, 2014, is hereby STRICKEN.

The Clerk of Court shall file a certified copy of this Order at docket number C-48-CV-2014-5281.

      . On July 31, 2014, BASD filed an Answer to Citi’s Petition, in which it stated that it “does not take a position with regard to [Citi’s] Petition to redeem.” (BASD’s Answer to Citi’s Pet. at 4-5.)

      . The redemption statute also provides that there is no right to redeem “vacant” property and assumes property to be vacant unless it is “continuously occupied by the same individual or basic family unit as a residence for at least ninety days prior to the date of the sale and continues to be so occupied on the date of the acknowledgment of the sheriff’s deed therefor.” 53 P.S. § 7293(c). Defendant Sandra K. Triantafelow resided continuously at the Property for approximately twenty years before moving to an assisted-living facility on October 23,2014; thus, she occupied the Property for at least ninety uninterrupted days prior to the sheriff’s sale and continued said occupation past the date of acknowl-edgement of the sheriff’s deed. (Citi’s Mot. ¶¶ 44-45; Defs.’ Resp. ¶¶ 44-45.) Accordingly, the Property was not “vacant” within the meaning of 53 P.S. § 7293(c) and is subject to redemption.

      . In its Brief, Citi cites numerous cases, some from bankruptcy courts, some from federal district courts, and some from Pennsylvania appellate courts, as well as secondary sources, all of which, in Citi’s estimation, establish that an unrecorded mortgage is a valid, enforceable lien as against the mortgagor. Citi argues that since Sandra K. Triantafelow was the mortgagor at the time of the sheriff’s sale, its mortgage, though unrecorded, was a valid lien as against her when the Property was sold, thus entitling it to redemption. The Court interprets the sources cited by Citi differently. As the Court interprets them, the sources relied on by Citi in its Brief stand, collectively, for the proposition that an unrecorded mortgage is not void as against the mortgagor simply due to its not being recorded. For example, the holder of an unrecorded mortgage does not lose the right to foreclose on a mortgagor’s property simply because its mortgage is unrecorded.

        The redemption statute, however, explicitly requires that a mortgage be a “lien” if it is to be the basis of a mortgagee’s right of redemption, and 21 P.S. § 622 expressly declares that unrecorded mortgages are not liens. In the Court’s view, the effect of 21 P.S. § 622 is to render an unrecorded mortgage incapable of constituting a “lien” for purposes of any statute that requires the same as a prerequisite to relief. This effect is able to sit harmoniously with Citi’s argument that an unrecorded mortgage is enforceable against the mortgagor, as nothing about 21 P.S. § 622 voids an unrecorded mortgage as a matter of law. What it does do, however, is invalidate unrecorded mortgages as “liens” for purposes of the redemption statute.


author: LOVECCHIO, J.,

text:
    In re Y.H.

      C.P. of Lycoming County,
    No. 15-80,023
    May 22, 2015
   LOVECCHIO, J.,

Pursuant to 50 P.S. § 7304, upon a finding by clear and convincing evidence that a person is severely mentally disabled and in need of treatment, said person may be made subject to court ordered involuntary treatment for a period not to exceed ninety (90) days.

The Respondent is an inmate at the State Correctional Institution (SCI) at Muncy. She was institutionalized at SCI—Muncy on October 10,2012 following a conviction for first degree murder.

By Petition filed on April 17,2015 by a representative of SCI — Muncy, it was alleged that Respondent is severely mentally disabled and in need of treatment.

On April 30, 2015, a hearing was held before David Raker, Esquire, Hearing Examiner. Respondent was found to be severely mentally disabled and in need of inpatient treatment and committed to the Mental Health Unit at SCI — Muncy as a severely mentally disabled person pursuant to the provisions of the Mental Health Procedures Act for a period not to exceed sixty (60) days.

By Order of Court dated April 30, 2015, upon consideration of the report of Mr. Raker filed in this matter, President Judge Nancy L. Butts of the Court of Common Pleas of Lycoming County Ordered and Directed that Respondent be committed to the SCI— Muncy Mental Health Unit for inpatient care and treatment as a severely mentally disabled person. The care and treatment ordered pursuant to § 7304 (c) of the Mental Health Procedures Act was ordered to continue for a period not to exceed sixty (60) days.

On May 11, 2015, Respondent filed a Petition for Review. The hearing and argument on said Petition was held before the Court on May 14, 2015.

Pursuant to 50 P.S. § 7303 (g), in all cases in which a hearing was conducted by a Mental Health Review Officer, a person made subject to treatment pursuant to the section shall have the right to petition the Court of Common Pleas for review of the certification. The hearing must include a review of the certification and such evidence as the Court may receive or require. If the Court determines that further involuntary treatment is necessary and that the procedures prescribed by the Act have been followed, it shall deny the Petition. Otherwise, the person shall be discharged.

At the hearing held in connection with the Petition for Review, counsel for the Respondent, hereinafter Petitioner, conceded that the procedures prescribed by the Act were followed. In fact, the Court finds that the procedures set forth in 50 P.S. § 7304 (c), (d) (e) have all been complied with.

Petitioner argues, however, that there was no clear or convincing evidence that she was severely mentally disabled and in need of treatment.

In addressing Petitioner’s Petition for Review, the Court reviewed the certification and relevant paperwork submitted in connection with the 304 (c) Petition. The Court also reviewed a transcript of the hearing before Hearing Officer Raker. The initial transcript was not decipherable. An additional transcript was directed to be provided to the Court. It was subsequently provided and reviewed.

In order for the Court to determine that Petitioner is severely mentally disabled and in need of treatment, the Court must find that there was clear and convincing evidence that Petitioner presented a danger to herself or others. Petitioner’s counsel argues that the clear and convincing standard was not met because testimony at the hearing indicated that Petitioner has not harmed or threatened to harm herself or others and that she is meeting her daily living needs.

Contrary, however, to what Petitioner contends, the Court finds that the evidence was overwhelming and in support of the conclusion that Petitioner is unable to provide for her self-protection or safety. The Court finds that there is a reasonable probability that death, serious bodily injury or serious physical debilitation would occur were it not for the intervention as requested. See, for example, In Re: S.B., 777A.2d 454 (Pa. Super. 2000).

There is credible and in fact substantial evidence that the Petitioner’s symptoms include delusional thoughts, paranoia, agitation, grandiose thinking and anguish. Her treating physician’s testimony, when taken as a whole, supports a conclusion that there is a real potential for danger and that the Petitioner remains a clear and present danger to herself in light of the fact that she is not taking medication and is not following her treatment directives.

Unfortunately, Petitioner is in a State Correctional Institution surrounded by numerous other individuals who have committed various crimes and who are a danger to society. Petitioner was described as “delusional, defiant and angry.” Significantly, when the Petitioner committed her previous murders, she was under “similar” stressors. She was described as being highly distressed and refused to take her medication to treat her paranoid disorder.

Petitioner’s refusal to take medications only exacerbates her symptoms. She was accusing staff and other inmates of spraying her with chemicals. She was also complaining of smells and stink bombs and was acting more agitated and aggressive. She recently was engaged in an altercation with other inmates who she claimed elbowed her in retaliation for her alleging that they poisoned and sprayed her with deer urine.

Of significant concern to the staff, her treating physician and the Hearing Officer is the fact that her present behaviors are strikingly similar and “almost identical” to her behaviors just before she committed her homicides.

The Court cannot and will not ignore her histoiy of acting out under similar circumstances. The Court will not wait until another tragedy occurs. Petitioner’s histoiy of acting out following non-compliance clearly portends future deterioration and acting out, absent involuntary treatment.

ORDER

AND NOW, this 22nd day of May 2015, following a review of the initial Certification, a review of the evidence received at the hearing and a review of the additional evidence requested by the Court, the Court DENIES the Petition for Mental Health Review. Petitioner shall remain involuntarily committed for a period of no longer than sixty (60) days following April 30, 2015 and shall complete an involuntary inpatient commitment, including medication being administered as directed by her treating physician.


text:
    Nazareth Mutual Insurance Co. v. Kram

      C.P. of Northampton County,
    Nos. C-48CV-2013-12036, C-48-CV-2013-11929

      John W Ashley, for plaintiff.

      Graig M. Schultz, for defendants.
    May 26, 2015
   BELTRAMI, J.,

This matter is before the Court on the Motion for Summary Judgment and Clarification (“Motion”) filed by the defendants (“Defendants”) in these consolidated cases on December 23, 2014. On January 26, 2015, Plaintiff filed a Response to the Motion. Briefs have been filed, oral argument was heard on February 25, 2015, and the matter is ready for disposition.

The relatively undisputed facts are as follows. On June 24, 2013, the home of Defendant Thomas J. Polanski (“Defendant Polanski”) was damaged by a hailstorm. (Mot. ¶ 5; Resp. ¶ 5.) On July 25, 2013, the home of Defendant Shirley Kram (“Defendant Kram”) was damaged by a separate hailstorm. (Mot. ¶ 5; Resp. ¶ 5.) At the time of the storms, Defendants maintained separate, but identical, homeowners’ insurance policies (“Policies”) with Plaintiff Nazareth Mutual Insurance Company (“Nazareth Mutual”). (Mot. ¶¶ 3-4; Resp. ¶¶ 3-4.) Defendants submitted timely claims to Nazareth Mutual under their Policies. (Mot. ¶ 6; Resp. ¶ 6.) As part of their claims, and at the request of Nazareth Mutual’s independent adjuster, Zach Turnbull, Defendants each signed and submitted to Nazareth Mutual a proof of loss (“POL”). (Mot. ¶ 7; Resp. ¶ 7.) In response, Nazareth Mutual sent each Defendant a check in the amount identified in his or her POL, and both Defendants cashed their check. (See Kram Compl. ¶ 10; Kram Answer¶ 10; Polanski Compl. ¶ 7; Polanski Answer ¶ 7.) Contemporaneously with or shortly after submitting their POLs, Defendants exercised their appraisal rights under the Policies. (Mot. ¶ 8; Resp. ¶ 8.)

Thereafter, Nazareth Mutual filed the instant declaratory judgment actions against Defendant Polanski and Defendant Kram. In its Complaints, Nazareth Mutual requests a declaration that, based upon the POLs submitted by Defendants, the checks issued from Nazareth Mutual to Defendants, and Defendants’ acts of cashing the checks, there is no dispute as to the value of the loss, that Nazareth Mutual has satisfied its obligations under the Policies, and that appraisal is inappropriate under the circumstances. In essence, what Nazareth Mutual seeks against Defendants is a declaration “that the [POLs] signed by [Defendants] were binding, conclusive [,] and final as to the amount of loss and the extent of Nazareth Mutual’s contractual obligations.” (Mot. ¶ 10; Resp. ¶ 10.)

Two judges of this Court have refused to grant Nazareth Mutual such relief and, in doing so, have revealed why Defendants are now entitled to judgment as a matter of law. On February 20, 2014, Nazareth Mutual moved for summary judgment in its action against Defendant Polanski and, on March 20,2014, moved for summary judgment in its action against Defendant Kram. Both motions were denied, the first by an Order of Court and Statement of Reasons filed by the Honorable Craig A. Dally on April 16, 2014, and the second by an Order filed by the Honorable Michael J. Koury, Jr. on July 14, 2014. Both Orders reach the same conclusion — that the POLs submitted by Defendants, the checks issued by Nazareth Mutual, and the cashing of the checks by Defendants do not entitle Nazareth Mutual to the declaration sought. Defendants now move for summary judgment on the theory that the Orders of Judges Dally and Kouiy indicate that no genuine issues of material fact remain, yet the Orders reject Nazareth Mutual’s evidence as a legal basis for this Court declaring that Defendants’ insurance claims have been finally resolved. Nazareth Mutual, while offering no new factual record, responds that the aforementioned Orders do indicate that issues of fact remain, and that, as a result, its action for declaratory judgment must proceed to trial.

Pennsylvania Rule of Civil Procedure 1035.2 establishes the standard of review for a motion for summary judgment as follows:

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

Pa.R.C.P. No. 1035.2. These two prongs represent the

two main avenues per which summary relief may be granted. Employing the first of these, a movant may rely on uncontroverted facts, and/or allow that the factual allegations made by the non-moving party could be true, while contending that, even accepting such facts, judgment should be rendered for the movant as a matter of law. See Pa.R.C.P. No. 1035.2(1). Alternatively, after discovery, a party may challenge the ability of the non-moving party to adduce evidence of facts material to establishing a claim or defense. See id. No. 1035.2(2).

Lance v. Wyeth, 85 A.3d 434, 449-450 (Pa. 2014).

Under either avenue, summary judgment may only be granted when the record clearly shows that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010). The moving party bears the burden of proving that no genuine issue of material fact exists. Barnish v. KWI Bldg. Co., 916 A.2d 642, 645 (Pa. Super. 2007). In deciding a motion for summary judgment, the record must be viewed in the light most favorable to the non-moving party, and any doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. Ario v. Ingram Micro, Inc., 965 A.2d 1194, 1200 (Pa. 2009). Even where the facts are agreed upon, summary judgment cannot be entered if the facts can support conflicting inferences. Washington v. Baxter, 719 A.2d 733, 740 n.10 (Pa. 1998).

The party opposing a motion for summary judgment
may not rest upon the mere allegations or denials of the pleadings but must file a response within thirty days after service of the motion identifying
(1) one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion, or
(2) evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.

Pa.R.C.P. No. 1035.3(a)(1)-(2). In other words, the “[f]ailure of a non-moving party to adduce sufficient evidence on an issue essential to its case and on which it bears the burden of proof such that a [verdict could be issued] in its favor establishes the entitlement of the moving party to judgment as a matter of law.” Young v. Commonwealth, Dep’t of Transp., 744 A.2d 1276, 1277 (Pa. 2000). In actions for declaratory judgment, summary judgment is available and is governed by the same standard discussed above. Hydropress Envtl. Servs., Inc. v. Twp. of Upper Mount Bethel, 836 A.2d 912, 918 (Pa. 2003).

To quote from Judge Daily’s Statement of Reasons, with which the Court agrees: “[Tjhere is nothing in the language of the [POL] which could fairly be construed as capping a loss to the information provided in the POL.” (Mot. Ex. C at 5.) Based on that conclusion and on the fact that Nazareth Mutual itself averred, in its Complaint against Defendant Polanski, that he timely exercised his right to appraisal, Judge Dally denied Nazareth Mutual’s Motion for Summary Judgment because “it [was] clear that [Nazareth Mutual] [was] not entitled to judgment in its favor as a matter of law.” {Id. at 5-6.) Further, to quote from Judge Koury’s Order, with which the Court also agrees: “[N]othing in the Policies] supports Nazareth Mutual’s assertion that [Defendant] Kram’s cashing of Nazareth Mutual’s check for the amount set forth in the POL constitutes an admission that [Defendant] Kram’s claim does not exceed that amount.” (Mot. Ex. D at n.2.) Based on that conclusion, Judge Koury denied Nazareth Mutual’s Motion for Summary Judgment because “Nazareth Mutual . . . failed to establish that it [wa]s entitled to judgment as a matter of law.” {Id.)

Nazareth Mutual now argues that summary judgment in favor of Defendants is unwarranted because “[i]n this matter, two (2) judges looked at the pleadings and Request for Admissions and the Answers thereto ... [and] determined that there were material issues of fact to be decided as to if each claim amount had been agreed to by the notices.” (Nazareth Mutual’s Br. at 5.) This is a misinterpretation of the Orders in question. In fact, each Order clearly concludes that the evidence presented by Nazareth Mutual — the POLs, the checks, and the cashing thereof — cannot establish that the claim amount was agreed upon as a matter of law, since both Defendants requested appraisal under the Policies’ terms.

In surveying the record and interpreting the Orders of Judges Dally and Koury, it is apparent to the Court that both judges would have entered judgment against Nazareth Mutual when it moved for summary judgment were it not for the principle that a court cannot, procedurally, enter summary judgment against the moving party. See generally Bensalem Twp. Sch. Dist. v. Commonwealth, 544 A.2d 1318, 1322 (Pa. 1988). More importantly, in response to Defendants’ Motion, Nazareth Mutual has not produced any new evidence and simply relies upon the record that was presented to Judge Dally and Judge Koury, namely the Policies, the POLs, the checks issued to Defendants, and the fact that Defendants cashed those checks. In other words, the record has not changed at all since Nazareth Mutual moved for summary judgment. Two judges of this Court have already correctly concluded that such evidence does not entitle Nazareth Mutual to the declaration it seeks. As noted above, the failure of a non-moving party to offer sufficient evidence on an issue essential to its case and on which it bears the burden of proof entitles the moving party to judgment as a matter of law. Thus, as Defendants are now the movants and Nazareth Mutual has failed to produce evidence essential to its case, Defendants are entitled to judgment in Nazareth Mutual’s actions for declaratory judgment.

In light of the foregoing, all that remain for disposition are those portions of Defendants’ Motion in which they seek, pursuant to Pennsylvania Rule of Civil Procedure 1035.5, an order clarifying that the causes of action pleaded in their counterclaim shall proceed to trial and a case management order. That Rule provides:

If judgment is denied or is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court when considering the motion may, if practicable, ascertain from the pleadings, the evidence and the parties which material facts relevant to the motion exist without controversy and which are actually controverted. It shall thereupon make an order specifying the facts that are without controversy, including the extent to which the amount of damages or other relief is not in controversy and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established and the trial shall be conducted accordingly.

Pa.R.C.P. 1035.5. Defendants, in invoking this Rule, do not, as the Rule contemplates, ask the Court to specify which, if any, material facts are without controversy, and, thus, the Court declines to do so. Rather, Defendants ask the Court to clarify that their counterclaims shall proceed to trial. Because Defendants did not seek summary judgment with regard to their counterclaims, no clarification is needed. Nor is any case management order required. Defendants’ counterclaims are all that remain in this action, and, with nothing further pending before the Court, ordinary case management principles enshrined in the Pennsylvania Rules of Civil Procedure will operate to govern this action from this point forward.

WHEREFORE, the Court enters the following:

ORDER OF COURT

AND NOW, this 26th day of May, 2015, the Motion for Summary Judgment filed by Defendants Shirley Kram and Thomas J. Polanski (“Defendants”) on December 23, 2014, is hereby GRANTED. Judgment is hereby entered in favor of Defendants and against Plaintiff Nazareth Mutual Insurance Company with regard to Plaintiff’s Complaints in the above actions. Defendants’ Motion for Clarification, filed on the same date, is hereby DENIED.

      . Pursuant to the Policies, when requested by Nazareth Mutual, the insured must:
      a. give [Nazareth Mutual] a signed, sworn proof of loss, within 60 days after [Nazareth Mutual’s] request, that shows:
      1) the time, place, and the details of the loss;

      6) detailed estimates for repair; and
      7) in detail, the quantity, description, cost, amount of loss, and actual cash value of the personal property involved in the loss.
      (Mot. Ex. A at 21-22 of 29; Ex. B at 21-22 of 29.)

      . Pursuant to the Policies, if the parties “do not agree as to the .. . amount of the loss,” the claim moves into appraisal proceedings, where each side chooses and pays for an appraiser, the chosen appraisers select an umpire, and that trio attempts to arrive at a written agreement representing the final, binding amount of the loss. (See Mot. Ex. A at 28 of 29; Ex. Bat 28 of 29.)

      . A review of Nazareth Mutual’s Complaints reveals that its sole factual basis for the declaration sought are the Policies, the POLs, the checks, and the cashing of the checks as well.

      . In opposition to Defendants’ Motion, Nazareth Mutual also argues that there are issues of fact as to “the amount and value of the claim” and “the amount of damages” and that these issues prevent the Court from granting the Motion. (Nazareth Mutual’s Br. at 6.) This argument ignores the fact that Nazareth Mutual’s Complaints only seek a declaratory judgment. In light of the Court’s entry of summary judgment against Nazareth Mutual with regard to its Complaints, the amount of damages will be determined through the appraisal process under the terms of the Policies, not by this Court.

      . In their Counterclaims, Defendants seek damages for bad faith and for breach of the covenant of good faith and fair dealing.

      . The Court notes that Defendant Kram and Defendant Polanski have each filed an Amended Answer with New Matter and Counterclaim, on March 9,2015, and March 12,2015, respectively. The Counterclaims remain unanswered by Nazareth Mutual. In addition, on April 1, 2015, the Honorable Stephen G. Baratta entered an Order, following a status conference with the parties, indicating that the pleadings were not closed as of that date and scheduling the case for a status conference on June 8,2015.


text:
    In re Estate of McCarthy

      C.P. of Lawrence County,
    No. 63 of 2013, O.C.

      Timothy R. Bonner, for petitioner.

      Gary M. Scoulos, for respondent.
    June 3, 2015
   HODGE, J.,

Before the Court for disposition is a Motion to Strike Claim, filed on behalf of the Petitioner, Michael Allen McCarthy, Executor of the Estate of William J. McCarthy, IV, (hereinafter, the “Executor”). The Respondents are Shenango Township and Inservco Insurance Services, Incorporated, a workers’ compensation administrator employed by Shenango Township.

The Decedent, William J. McCarthy, IV, was killed in an automobile accident on May 2,2013 while on duty as a police officer for Shenango Township, Lawrence County, Pennsylvania. As a result of the Decedent’s death, the Decedent’s widow, Patty Jo McCarthy, receives workers’ compensation benefits, which payments are being issued by Inservco Insurance Services, Inc. on behalf of Shenango Township.

At the time of his death, the Decedent had a personal automobile insurance policy, which he purchased through Nationwide Insurance Company. The policy obtained through Nationwide Insurance Company provided the Decedent with $200,000.00 in underinsurance motorist coverage, (hereinafter, “UIM”). The benefits secured under this policy were made payable to Michael Allen McCarthy, as Executor of the Decedent’s Estate, following the Decedent’s death.

Shenango Township and Inservco Insurance Services, Inc. (hereinafter, “Shenango Township”) subsequently filed a claim against the Estate of William J. McCarthy, IV (hereinafter, the “Estate”) alleging a right to subrogate into the Decedent’s UIM proceeds paid by Nationwide Insurance company to the Estate. The Executor filed a Motion to Strike Claim on March 17, 2015, wherein the Executor contested Shenango Township’s authority to subrogate the benefits issued by Nationwide Insurance Company. Following oral argument on May 7,2015 and the submission of memorandums in support of their respective positions, the Motion to Strike Claim is properly before the Court for disposition. Prior to reaching the merits of the Motion to Strike Claim, the Court must first dispose of the challenge to the jurisdiction of this Court considering said motion made by Shenango Township.

The right to subrogate arose in common law, under doctrine developed in a court of equity. Thompson v. W.C.A.B., 781 A.2d 1146, 1151 (Pa. 2001). Instantly, however, Shenango Township asserts that the claim made against the Estate was issued for the purpose of preserving its rights under Section 319 of the Workers’ Compensation Act. Section 319 of the Act provides in pertinent part:

Where the compensable injury is caused in whole or in part by the act or omission of a third party, the employer shall be subrogated to the right of the employee, his personal representative, his estate or his dependents against such third party to the extent of the compensation payable under this article by the employer;...

77 P.S. § 671. In order to establish a right of subrogation against a third-party recovery, an employer must demonstrate that it is required to make payments by reason of the negligence of the third party and the fund to which it seeks subrogation was for the same compensable injury for which the employer is liable under the Act. Dale Manuf. Co. v. Workmen’s Compensation Appeal Bd., 421 A.2d 653, 655 (Pa. 1980) (quoting Dale Manuf. Co. v. Workmen’s Compensation Appeal Bd., 382 A.2d 1256, 1259 (Pa.Cmwlth. 1978).

Pennsylvania case law clearly states that in general, the common pleas courts lack jurisdiction to adjudicate the right of subrogation in workers’ compensation actions. Stout v. W.C.A.B., 948 A.2d 926 (Cmwlth. 2008), appeal denied, 960 A.2d 547. This is because determination of whether an employer or its insurer is entitled to subrogation with respect to a ‘claimant’s recoveiy from a third party falls within the exclusive jurisdiction of the workers’ compensation authorities. Id. Although there are instances where complex issues rendered a determination by a common pleas court appropriate, see Gillette v. Wurst, 937 A.2d 430 (Pa. 2007) (trial court had jurisdiction to decide workers’ compensation insurer’s claim to subrogation because the issues raised did not arise solely under the Workers’ Compensation Act, but demanded consideration of the insurer’s unquestioned right of subrogation, surviving spouse’s right to a wrongful death award, and the intestacy laws). In the instant case, however, the sole issue raised in the Motion to Strike is whether Shenango Township has a right of subrogation against the Estate. On this basis, the Court lacks jurisdiction to make such a determination. The Motion to Strike Claim is therefore denied.

Consistent with this Opinion, the Court will enter the following Order of Court:

ORDER OF COURT

AND NOW, this 3rd day of June, 2015, this matter being before the Court for Argument on a Motion to Strike Claim, with Timothy R. Bonner, Esquire, appearing on behalf of the Petitioner, Michael Allen McCarthy, Executor of the Estate of William J. McCarthy, IV, and with Gary M. Scoulos, Esquire appearing on behalf of the Respondents, Shenango Township and Inservco Insurance Services, Incorporated, and after considering the arguments made by counsel, in addition to the supplemental memorandums in support of their respective positions, the Court hereby ORDERS and DECREES as follows:

1. Petitioner’s Motion to Strike Claim is DENIED.

2. Exclusive jurisdiction of the subrogation issue shall remain with the workers’ compensation authorities.

3. The Prothonotary shall properly serve notice of this Order of Court upon counsel of record for the parties.


author: MCINERNEY, J.,

text:
    Binswanger of Pa. Inc. v. TSG Real Estate LLC

      Jessica Priselac, Joseph Jesiolowski and Michael S. Zullo, for plaintiff.

      Michael J. Barrie and Jennifer R. Hoover, for defendant.
    June 10, 2015
   MCINERNEY, J.,

Presently before the court are cross motions for summary judgment. The plaintiff Binswanger of Pennsylvania, Inc. (“Binswanger”) is a licensed broker to sell property in Philadelphia. Defendant TSG Real Estate, LLC (“TSG”) is the owner of property located at 1400 Welsh Road, North Wales, Pennsylvania listed for sale and subject of this suit (“the property”).

Exclusive Right to Sell or Lease Agreement

On September 20, 2013, Jack E. Rosenstein (“Rosenstein”), Vice President of TSG, informed Frank Cullen (“Cullen”), President of Binswanger, that he wanted to hire Binswanger as its real estate broker to sell the property. Before retaining Binswanger, New Hart Corporation d/b/a Hart Corporation (“Hart”) represented TSG with respect to the property. TSG sought to retain Binswanger since its agreement with Hart was about to expire. On September 18, 2013 two days before TSG informed Binswanger of its decision to hire them, TSG received an offer on the property from Jerry McBride and TWA Holdings, Inc. As a result of said offer, Rosenstein informed Cullen that any agreement must exclude certain buyers that already offered on the property.

On September 27, 2013, Binswanger entered into the Exclusive Right to Sell or Lease Agreement (“exclusive broker agreement”) with TSG for the property located at 1400 Welsh Road, North Wales, Pennsylvania 19454. The exclusive broker agreement provided in pertinent part as follows:

...Except with respect to any transaction, sale or exchange involving the Excluded Entities, Agent is hereby given the sole and exclusive right to list and offer for sale and lease for Owner’s account the land and buildings owned by Owner situated in NORTH WALES, PENNSYLVANIA...provided that Agent agrees by listing and otherwise, to use its best efforts to sell and lease the Property until this Agreement is terminated as herein provided.
EXCEPT WITH RESPECT TO THE EXCLUDED ENTITIES, IF THE PROPERTY, OR ANY PART THEREOF, IS SOLD OR LEASED, OR IF A PURCHASER OR TENANT WILLING TO BUY OR LEASE ON TERMS SATISFACTORY TO OWNER IS PROCURED PRIOR TO THE TERMINATION AS HEREINAFTER SET FORTH), NO MATTER BY WHOMSOEVER THE PROPERTY MAY BE SOLD, TRANSFERRED, CONVEYED, EXCHANGED OR LEASED OR SUCH PURCHASER OR TENANT PROCURED, WHETHER BY AGENT OR BY OWNER DIRECTLY OR BY ANY OTHER ENTITY WHATSOEVER, THEN, IN ANY SUCH EVENT, OWNER AGREES THAT AGENT SHALL HAVE EARNED A COMMISSION AND OWNER AGREES TO PAY TO AGENT A SALE OR LEASE COMMISSION AS FOLLOWS....

The Excluded Entities referred to in the exclusive broker agreement are identified as Aneblare, Inc., TWA Holdings, LLC, and Jerry McBride, or any other entity owned by, controlled by or associated with them. As it pertains to the excluded entities, the exclusive broker agreement carved out a period of time wherein commissions would not be due and owing to Binswanger (“carve out period”). Specifically, the exclusive broker agreement provided as follows:

Notwithstanding anything in this Agreement to the contrary, a commission shall not be earned by, or be payable to, Agent in connection with:...
(c) sales, exchanges, or other transfers to Aneblare, Inc., TWA Holdings, LLC, Jerry McBride, or any other entity owned by, or associated with any of the foregoing (the “Excluded Entities"), to the extent that such sale, exchange or transfer is completed on or before January 5, 2014.

Hence, Binswanger would not be entitled to a commission if the sale, exchange or transfer was completed on or before Januaiy 5,2014. The exclusive broker agreementwas for aterm of one (1) year. TSG had the right to terminate the agreement after six (6) months with thirty (30) days prior written notice to Binswanger at TSG’s sole or absolute discretion.

Agreement of Sale between TSG and TWA Holdings Inc.

On January 3, 2014, TSG and TWA Holdings, Inc. (“TWA”) executed an Agreement of Sale for the Welsh Road property, two days before the expiration of the carve out period. The Agreement of Sale identified April 10,2014 as the settlement date whereupon legal title to the property would pass. The Agreement also required the satisfaction of certain conditions precedent prior to settlement. The sale was conditioned upon TWA obtaining a mortgage within sixty (60) days from the signing of the Agreement of Sale. TWA was required to obtain a mortgage commitment at no greater than seven percent (7%) and with an amortization period of twenty (20) years in the aggregate of no less than Two Million Dollars ($2,000,000.00) based on the property being the sole collateral. Additionally, per the Agreement, TWA was required to apply for a mortgage in writing to a responsible mortgage lending institution within fifteen (15) days after execution of the agreement. The Agreement did not foreclose TSG from continuing to market the property to any prospective buyers during the sixty (60) day due diligence period.

Upon learning of the Agreement of Sale, Binswanger requested TSG to pay the commission per the exclusive brokerage agreement since the sale, exchange or transaction was not completed during the carve out period. TSG refused to pay Binswanger a commission claiming the Agreement of Sale completed the sale, exchange or transaction prior to the expiration of the carve out period and no commission was due. On January 16, 2014, TSG exercised its option and terminated the exclusive broker agreement effective March 26, 2014.

On February 4, 2014, Binswanger filed a commercial real estate broker’s lien against the property in the Court of Common Pleas of Montgomery County. On March 25,2014, TSG commenced a proceeding to strike the Binswanger Lien by filing a Petition to Strike off Security improperly filed. In response, Binswanger withdrew the lien.

On February 10, 2014, Binswanger commenced this action by filing a complaint. An amended complaint was filed asserting causes of action for declaratory relief, breach of contract and breach of the duty of good faith and fair dealing. Binswanger alleges it is entitled to a commission equal to $170,000.00 which is five percent of the $3.4 million sale price for the property. TSG filed a counterclaim seeking declaration that it was not required to pay a commission. On April 24, 2014, the sale of the property to TWA was completed and TSG transferred the property’s deed to TWA.

DISCUSSION

A. Binswanger is owed a commission since execution of the Agreement of Sale was not a complete sale, exchange or transaction.

A broker’s right to a commission is a matter of contract, whether express or implied. Binswanger argues it is entitled to a commission on the sale of the property because the sale, exchange or transfer was completed after expiration of the carve out period. TSG, on the other hand, argues that a fully executed agreement of sale constitutes a completed sale, exchange or transaction and no commission is due Binswanger since the agreement of sale was executed prior to the expiration of the carve out period. A careful review of the exclusive broker agreement executed by Binswanger and TSG and the Agreement of Sale executed by TSG and TWA as well as the applicable law demonstrates that execution of the Agreement of Sale on January 3, 2014 did not constitute a completed sale, exchange or transfer and therefore a commission is due Binswanger.

The longstanding precedent in this Commonwealth provides that from the moment an agreement of sale for real estate is executed and delivered, it vests in the purchaser equitable title to the real estate. The seller is considered a trustee of the real estate for the purchaser and the latter becomes a trustee of the balance of the purchase money for the seller. The seller’s title which he retains until final conveyance is but a security title and the risk of loss or advantage is borne by the buyer. This notion of transferring equitable title at the execution of the agreement of sale applies only to the parties to the contract, i.e. the agreement of sale, and cannot be extended so as to affect the interests of others. Moreover, equitable title is transferred only when the contract for the sale of land is free from conditions which are beyond the control of the parties.

TSG argues emphatically that because equitable title passes at the signing of the agreement of sale, the sale, exchange or transaction is complete and therefore no commission is due Binswanger. However, this reasoning is misplaced for two reasons. First, the Agreement of Sale contains a mortgage contingency. Applying and procuring a mortgage is beyond the control of TSG and TWA. As such, equitable title did not transfer at the time the Agreement of Sale was executed and therefore the sale, exchange or transaction for the property was not complete prior to the termination of the carve out period as required by the broker agreement. Secondly, the rights and obligations of TSG and TWA, those with an interest in the property, are not in issue. Here, the rights and obligations at issue do not involve the subject real estate and the applicable agreement of sale. Instead, the rights and obligations at issue are those pertaining to the exclusive broker agreement between Binswanger and TSG, a third party transaction unrelated to the Agreement of Sale. Based on the foregoing, the court finds that since the executed Agreement of Sale was a conditional agreement and was not a completed sale, exchange or transaction at the time of its execution, and since the sale, exchange or transaction was completed after the expiration of the carve out period, Binswanger is due a commission for the sale of the property.

B. TSG’s termination of the Agreement of Sale was not effective.

In the alternative, TSG argues that no commission is due to Binswanger because title to the property passed after the exclusive broker agreement terminated. This argument is not persuasive. The exclusive broker agreement provides as follows:

This Agreement shall be for a term of one (1) year, beginning from the date set forth above; provided, however, that Owner shall have the right to cancel this Agreement after six (6) months with thirty (30) days prior written notice to agent.

The term of the exclusive broker agreement began on September 27, 2013. The exclusive broker agreement unambiguously prohibits cancellation of the agreement until after six months from the date it commenced. Since TSG forwarded notices of termination on January 16, 2014 and February 14, 2014, the notices of termination were ineffective. Even assuming that Binswanger was on notice of TSG’s intent to terminate the exclusive broker agreement, the earliest date the termination would be effective was after March 28, 2014. Based on the foregoing, the court finds that the efforts made by TSG to terminate the exclusive broker agreement are ineffective and invalid and a commission is due and owing to Binswanger.

Although Binswanger is entitled to a commission under the exclusive brokerage agreement, it is not entitled to the full commission, $170,000.00. The exclusive brokerage agreement provides in part as follows:

...In the event a purchaser or tenant is procured by another broker other than Agent, Agent agrees to split any sale or lease commission with the other broker.

Here, it is clear from the record that TWA was not procured by Binswanger. As such, pursuant to the terms of the agreement, the commission should be split between Binswanger and the other two brokers involved in the transaction.

CONCLUSION

For the foregoing reasons, the parties’ respective motions for summary judgment are granted in part and denied in part as follows: Plaintiff Binswanger of Pennsylvania’s Motion for Summary Judgment is granted in part and Binswanger is entitled to a commission per the exclusive broker agreement. Defendant TSG Real Estate LLC’s Motion for Summary Judgment is granted in part and Binswanger of Pennsylvania, LLC is only entitled to collect one third of the commission, $56,666.67. All other aspects of the motions are denied.

ORDER

AND NOW, this 10th day of June 2015, upon consideration of the parties’ cross motions for summary judgment and all responses in opposition, it hereby is ORDERED that the parties’ respective motions for summary judgment are granted in part and denied in part as follows:

1. Plaintiff Binswanger of Pennsylvania, Inc.’s Motion for Summary Judgment is granted in part and Binswanger of Pennsylvania, Inc. is entitled to a commission per the Exclusive Listing Agreement.
2. Defendant TSG Real Estate LLC’s Motion for Summary Judgment is granted in part and Binswanger of Pennsylvania, Inc. is only entitled to collect one third of the commission, $56,666.67.

All other aspects of the motions are denied.

      . Coldwell Banker Phyllis Rubin Real Estate v. Romano, 422 Pa. Super. 319, 325, 619 A.2d 376, 379 (1993), citing Solis-Cohen v. Phoenix Mutual Life Ins. Co., 413 Pa. 633, 198 A.2d. 554 (1964).

      . Payne v. Clark, 409 Pa. 557, 561, 187 A.2d 769, 770 (1963).

      . Id.

      . Dubin Paper Co., v. Insurance Co. of North America, 361 Pa. 68, 63 A.2d 85 (1949).

      . Bauer v. Hill, 267 Pa. 559, 562, 110 A. 346, 347 (1920). See also, In re Governor Mifflin Joint School Authority, 401 Pa. 387, 164 A.2d 221 (1960)(equitable conversion was said not to have taken place where the land purchase agreement was conditioned upon the passage of certain zoning changes).

      . The Agreement of Sale provides “Seller shall have the right to continue to market the Property to prospective buyers during the Due Diligence Period, but shall have no right to terminate this Agreement as set forth herein.” In accordance to this provision, the agreement remained conditional until the passage of the due diligence period, which was after the carve out period contained within the Exclusive Agreement to Sell or Lease. See, Agreement of Sale Article Due Diligence Period section (d).

      . Moreover, a commission is due notwithstanding any efforts by TSG’s to terminate the exclusive broker agreement since the Agreement of Sale, although conditional, was signed during the term of the agreement.

      . As for plaintiff’s remaining claims of breach of the duty of good faith and fair dealing, it is unnecessary to address plaintiff’s same since it was pled as an alternative cause of action to the claims for declaratory judgment and breach of contract.

      . The Agreement of Sale indentifies two brokers, Hart Corporation and Gelcor Realty.