author: KENNEY, «/.,

text:
    Delaware County v. Campbell

      Francis John Catania, for plaintiff.

      Simon Campbell, pro se.
    April 12, 2011
   KENNEY, «/.,

-And now, upon consideration of appellant, Delaware County’s appeal from the final decision of the Pennsylvania Office of Open Records, No. 2011-0127, the following findings of fact and conclusions of law are hereby entered pursuant to 65 P.S. § 67.1302(a);

FINDINGS OF FACT

1. Appellee, Simon Campbell, submitted a request on standard form (“request”), pursuant to the Right-to-Know Law, seeking the following:

An excel spreadsheet of the most recently updated property tax assessment records...in the possession of Delaware County with redactions of home addresses for the following individuals: (a) All public school employees of all public school employers; and (b) All retired public school employees of all public school employers.

See, “petition Requesting Judicial Review of Final Determination of the Pennsylvania Office of Open Records” at “Exhibit 2.”

2. The request sought redactions of names and addresses of the current and retired public school employees pursuant to our Supreme Court’s November 1, 2010 order in The Pennsylvania State Education Association, et al. v. Commonwealth of Pennsylvania, et al. staying the release of such information. See, id.; See Also, The Pennsylvania State Education Association, et al. v. Commonwealth of Pennsylvania, et al., No. 195 MM 2010 (Pa. Nov. 1, 2010) (order staying, the Sept. 24, 2010 order of the Commonwealth Court).

3. Delaware County responded to the request on February 7, 2011 (“Denial”), stating the following:

We have reviewed your request and determined we do not have the information requested. The county of Delaware has no way of knowing who is a public school employee and who is a retired public school employee from our tax assessment rolls. [Right-to-Know Law] section 705 states when responding to a request for access, an agency shall not be required to create a record which does not currently exist or to compile, maintain, format or organize a record in a manner in which the agency does not currently compile, maintain, format or organize the record. [Right-to-Know Law], 65 P.S. § 67.705.

See, “petition requesting judicial review of final determination of the Pennsylvania Office of open records” at “Exhibit 3.”

4. The Pennsylvania Office of Open Records, on appeal, required the following of the parties in submitting information in support of their respective positions: “all facts and statements of fact ...must be supported by an affidavit made under penalty of perjury by a person with actual knowledge.” See, Campbell v. Delaware County, O.O.R. Dkt. No. AP 2011-0127, Final Determination at 2 (Pa.O.O.R. Mar. 2, 2011) (emphasis original).

5. The factual background contained within the final determination of the Office of Open Records in the matter of Campbell v. Delaware County, O.O.R. Dkt. No. AP 2011-0127 (Pa.O.O.R. Mar. 2, 2011) (a copy is attached hereto) is hereby incorporated into this court’s Findings of Fact.

CONCLUSIONS OF LAW

1. The record on appeal is complete for a determination to be made on the instant appeal. See, 65 P.S. § 67.1303(b).

2. Pennsylvania’s Right-to-Know Law (“RTKL”) does not vest the office of open records with the authority to require a sworn affidavit from parties in a RTKL appeal in lieu of holding a hearing. See, 65 P.S. § 67.101, et seq.

3. The RTKL does, however, provide the Office of Open Records the discretionary power to conduct a hearing, in a RTKL appeal, and receive evidence and testimony from the parties. See, 65 P.S. § 67.1102(a)(2).

4. The “Legal Analysis” contained within the final determination contains no legal analysis.

5. Open records officers of Commonwealth and local agencies are presumed to act in good faith, and apply their good common sense and human experiences, in reviewing requests made pursuant to the RTKL. See, 65 P.S. § 67.901; See Also, Delaware County v. Schaefer, No. 10-15157, slip op. at 11 (Pa.Com.Pl. Apr. 8, 2010).

6. Pursuant to the RTKL, Delaware County’s response that it has no way of determining who are current and retired public school employees is a good faith response. See, 65 P.S. § 67.901.

7. Delaware County cannot be required to disclose records it does not have, or compile lists that it does not already maintain. See, 65 P.S. § 67.705.

8. Delaware County cannot provide access to the property tax records requested with the names and addresses of current and retired public school employees redacted, as this information is not able to be redacted. See, 65 P.S. § 67.706.

9. The denial, on its face, is just and proper under the RTKL. The Office of Open Records did not need more information to review this request and denial, whether under affidavit or not, and the Office of Open Records should have summarily upheld the denial of the Delaware County open records officer.

10. To require Delaware County to contact each and every property owner within the county for a determination as to who is a current or retired public school employee is not only an absurd requirement contrary to the RTKL, it is also an entire misappropriation of taxpayer funds.

11. The Office of Open Records continued failure to apply any common sense in its final determinations is costing this court its judicial resources and time, and moreover, costing Commonwealth and local agencies, such as the County of Delaware, excessive taxpayer funds in having to litigate untenable final determinations of the Office of Open Records, such as the one provided herein for review.

Based upon the foregoing, the following order is hereby entered:

ORDER

And now, April 12, 2011, upon consideration of the appeal of Delaware County of the final determination of the Pennsylvania Office of Open Records, in the matter of Simon Campbell v. Delaware County, No. 2011-0127 (Mar. 2, 2011), it is ordered and decreed as follows:

1. The appeal of Delaware County is hereby granted; and

2. The final determination of the Pennsylvania Office of Open Records, in the matter of Simon Campbell v. Delaware County, No. 2011-0127, dated March 2, 2011, is hereby summaily reversed.

PENNSYLVANIA OFFICE OF OPEN RECORDS FINAL DETERMINATION

INTRODUCTION

Simon Campbell (the “requester”) filed a Right-to-Know request with Delaware County (“county”) pursuant to the Right-to-Know Law 65 P.S. §§67.101 et seq., (“RTKL”), seeking an excel spreadsheet of property tax assessment records. The county denied the request, stating records do not exist and that it is not required to compile, maintain, format or organize records in a manner in which it does not currently do so. The requester timely appealed to the Office of Open Records (“OOR”). For the reasons set forth in this final determination, the appeal is granted in part and denied in part and the county is required to take further action.

FACTUAL BACKGROUND

On January 31,2011, the requester submitted a request for the following:

An Excel spreadsheet of the most recently updated property tax assessment records...in the possession of Delaware County with redactions of home addresses for the following individuals:
a) All public school employees of all public school employers
b) All retired public school employees of all public school employers. (“Request”).

The requester defined “property tax assessment records” as “property tax assessment records for all taxable properties in Delaware County and shall include at a minimum each property owner’s name, the property address and the assessed value of the property.” He further advised that the county is required to redact the records as described above pursuant to a Supreme Court injunction regarding the release of public school employee home addresses and OOR final determinations regarding retired school employees. He asserts that if the county does not perform the required redactions, it would fail to provide him with responsive records. On February 7, 2011, the county denied the request, asserting it does not have the requested information. It contends it has no way of knowing who is a public school employee and who is a retired public school employee from its tax assessment rolls.

The requester timely appealed the denial. The parties were invited to submit information in support of their respective positions and advised that “all facts and statements of fact...must be supported by an affidavit made under penalty of perjury by a person with actual knowledge.” Neither party did so.

LEGAL ANALYSIS

The RTKL is “designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials and make public officials accountable for their actions.” Bowling v. OOR, 990 A.2d 813, 824 (Pa. Cmwlth. 2010). The OOR is authorized to hear appeals for all Commonwealth and local agencies. See 65 P.S. §67.503(a). An appeals officer is required “to review all information filed relating to the request.” 65 P.S. §67.1102(a)(2). An appeals officer may conduct a hearing to resolve an appeal. The decision to hold a hearing or not hold a hearing is discretionary and non-appealable. Id. The law also-states that an appeals officer may admit into evidence testimony, evidence and documents that the appeals officer believes to be reasonably probative and relevant to an issue in dispute. Id. Here, neither party requested a hearing and the OOR has the necessary, requisite information and evidence before it to properly adjudicate the matter.

The county is a local agency required to disclose public records. 65 P.S. §§67.102 and 302. Records in possession of a local or Commonwealth agency are presumed public unless exempt under the RTKL or other law or protected by a privilege, judicial order or decree. See 65 P.S. §67.305. An agency bears the burden of proving the applicability of any cited exemptions, See 65 P.S. §67.708(b). Section 708 of the RTKL clearly places the burden of proof on the public body to demonstrate that a record is exempt. In pertinent part, Section 708(a)(1) states: “[t]he burden of proving that a record of a Commonwealth agency or local agency is exempt from public access shall be on the Commonwealth agency or local agency receiving a request by a preponderance of the evidence.” 65 P.S. §67.708(a). Preponderance of the evidence has been defined as “evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1064 (8th ed.); see also Commonwealth v. Williams, 567 Pa. 272, 786 A.2d 961 (2001).

In the present case, the county did not provide an affidavit to support the assertions set forth in its initial denial letter. The county does not provide any explanation as to what it means by its statement that it does not have the information requested and does not assert that it does not possess the requested Excel spreadsheet with the property assessment records. The county does not provide any responsive records and does not assert that any records are protected. Based on the county’s failure to provide any evidentiary basis in support of a denial under the RTKL, the county did not meet its burden under the RTKL and the appeal is granted. See 65 P.S. § 67.305.

The OOR notes that the Pennsylvania Supreme Court reinstated a preliminary injunction issued by Judge Friedman barring the OOR from directing the release of the home address of school district employees. Pa. State Educ. Ass’n v. Commonwealth, 2010 Pa. LEXIS 2520 (Pa. Nov. 1, 2010). Therefore, to the extent that requested record contains the addresses of public school employees, the OOR does not order the release of public school employee addresses.

CONCLUSION

For the foregoing reasons, the requester’s appeal is granted in part and denied in part and the county is required to produce the requested records, subject to redactions for the home addresses of any public school employee. This final determination is binding on the parties. Within thirty (30) days of the mailing date of this determination, either party may appeal to the Delaware County Court of Common Pleas. See 65 P.S. § 67.1302(a). All parties must be served with notice of the appeal. The Office of Open Records also shall be served notice and have an opportunity to respond according to court rules as per section 1303 of the RTKL. The parties are further advised that a copy of this final determination will appear on the Office of Open Records website, http://openrecords.state.pa.us


source: Caselaw Access Project

author: MOSS, J.,

license: Public Domain

text:
    Kornegay v. Interstate Brands Corp.

      George R. Szymanski Jr. and Ronald S. Pollack, for plaintiff.

      Mark T. Gallagher and Andrew R. Benedict, for defendants.
    March 23, 2011
   MOSS, J.,

Plaintiff, Maurice Komegay, brought suit against defendants, Interstate Brands Corporation and Stanley Socha, for damages incurred as a result of an alleged civil assault and battery. Plaintiff alleged that defendant, Stanley Socha, hit plaintiff in his left shoulder, causing permanent injuries to that shoulder.

Plaintiff worked as a truck driver at defendant, Interstate Brands Corporation. Following a period of time off for a prior work injury and a surgical procedure on his left shoulder, plaintiff returned to work on modified light duty on June 22, 2005. While recovering, plaintiff had been assigned to sedentary desk work in the driver’s room.

On July 22, 2005, plaintiff was still working on modified light duty when his supervisor, defendant Socha, entered the dispatcher room and made contact with plaintiff’s left shoulder. Plaintiff alleged that defendant Socha attacked him from behind, grabbed and squeezed his left arm, and punched him in his left shoulder. Defendant alleged that he brushed the back of his hand against plaintiff’s arm to get his attention. Plaintiff then brought this lawsuit against defendants, claiming that he sustained substantial injuries and required a second surgery to his left shoulder as a result of the contact.

This two-day j ury trial commenced before the Honorable Sheldon C. Jelin on September 21, 2010.

On September 22, 2010, the jury returned a defense verdict. The jury found that defendant had committed civil assault or battery upon the plaintiff. However, the jury found that the civil assault or battery had not caused any injuries to the plaintiff.

Plaintiff then filed a motion for post-trial relief, which was denied on November 22, 2010.

Plaintiff now appeals the trial court’s order of November 22, 2010, denying plaintiff’s motion for post-trial relief.

PLAINTIFF’S MATTERS COMPLAINED OF ON APPEAL

Plaintiff complains of two matters on appeal. The court will address each one separately.

1. “It is maintained that the jury’s verdict that defendant Stanley Socha’s civil assault or battery upon plaintiff Maurice Komegay did not cause injuries to the plaintiff is against the weight of the evidence, was a product of bias, passion, prejudice, partiality or corruption against the plaintiff and was so contrary to the evidence that it shocks one’s sense of justice. ”

Plaintiff sought a new trial on the issue of damages on the basis that the verdict was against the weight of the evidence. Plaintiff contends that the jury’s decision that the civil assault or battery did not cause any injuries is contrary to the medical evidence.

A new trial based on weight of the evidence issues will not be granted unless the verdict is so contrary to the evidence as to shock one’s sense of justice; amere conflict in testimony will not suffice as grounds for a new trial. Nemirovsky v. Nemirovsky, 776 A.2d 988, 993 (Pa. Super. 2001). A trial court’s decision on a weight of the evidence claim will not be reversed unless the trial court acted capriciously or palpably abused its discretion. Wagner v. Anzon, Inc., 684 A.2d 570, 578 (Pa. Super. 1996).

Attorneys shall hand copies of requested points for charge to the trial judge and to the opposing attorneys before the closing addresses to the jury are begun. A requested point for charge that was presented to the trial judge becomes part of the record when the point is read into the record, or filed in the office of the prothonotaiy prior to filing a motion for post-trial relief regarding the requested point for charge. Pa.R.C.P. 226.

Here, a written proposed charge was never submitted by the plaintiff, in violation of the court’s order. The only thing plaintiff requested at the charging conference was the “eggshell charge, aggravation of a pre-existing condition.” (N.T. 9/21/10, p. 134) This charge was never made known to opposing counsel. (N.T. 9/21/10, p. 134-135) Additionally, plaintiff’s proposed points for charge were never filed of record.

Because the charge at issue was neither timely requested nor filed of record, the court did not instruct the jury with respect to aggravation of a pre-existing condition. The charges delivered to the jury were proper and well within the court’s discretion.

CONCLUSION

As a result of the foregoing, this court respectfully requests that the order dated November 22, 2010, which denied plaintiff’s motion for post-trial relief, be affirmed.


author: PANEPINTO, J.,

text:
    O’Neal v. Aetna, Inc.

      Michael J. Rutenberg and Kenneth A. Sandler, for appellant.

      Justin R. Miller, for appellees.
    March 17, 2011
   PANEPINTO, J.,

This is an appeal from an order entered by this court on December 14,2010 in which the court sustained the preliminary objections to the complaint filed by defendants AETNA, Inc. and AETNA Rx Home Delivery, LLC (together, “defendants”) and dismissed the complaint.

FACTUAL AND PROCEDURAL HISTORY

On December 30, 2009, plaintiff Bonnie Lee O’Neal (“plaintiff’) commenced the underlying action by praecipe to issue writ of summons. Eventually, plaintiff filed a complaint on May 6, 2010.

Plaintiff alleged in her complaint that during the period between August 2005 and September 2005, she had contacted duly authorized agents and/or representatives of defendant AETNA, Inc. in order to discuss enrolling in its Medicare Advantage health insurance plan, including prescription drug coverage, for the term beginning January 1, 2006. Plaintiff specifically inquired as to whether certain of her prescription medications, including inter alia Tranxene T-Tab 7.5 milligram, which she had been prescribed, would be covered under the plan(s). AETNA, Inc.’s agents and/or representatives allegedly confirmed on several occasions that the aforementioned medications would be covered under the prescription drug plan that would go into effect on January 1,2006. Plaintiff was also informed that she could obtain the medication through defendant AETNA Rx Home Delivery, LLC (“AETNA Rx”). Agents and/or representatives of AETNA Rx thereafter allegedly confirmed these details and told plaintiff that she would only be responsible for a co-pay. Plaintiff made known to the agents and/or representatives of defendants that an important if not decisive factor in. her decision whether to enroll in the health insurance plan would be its inclusion of the aforementioned medication in its coverage. By and through their promises, defendants reasonably expected to induce plaintiff to forbear from enrolling in any other company’s or corporation’s health insurance and drug prescription plan. Plaintiff thereafter did in fact enroll in defendants’ plan on September 13, 2005.

On December 22, 2005, plaintiff spoke with an agent of AETNA, Inc. because she wanted to be certain that she would be receiving her medication shortly after the New Year. The agent affirmed that plaintiff’s order was ready to be shipped, and that she should not purchase the same until then as the cost under her plan beginning January 1, 2005 would be much less.

In a letter dated January 1, 2006, defendant AETNA, Inc. advised plaintiff for the first time that her request for authorization for coverage of the medication was denied, because it was contractually excluded form the member’s pharmacy benefit. Plaintiff received a similar letter from defendant AETNA Rx on January 5, 2006. Plaintiff therefore was forced to contact several local pharmacies to otherwise obtain a supply of the medication. When plaintiff sought to enroll in another prescription drug plan that would offer full or partial coverage of her medication, defendant AETNA, Inc. refused to allow her to cancel her policy and enroll in another plan.

The complaint is in the following counts: (I) detrimental reliance; and (II) breach of contract.

On May 28, 2010, defendants filed preliminary objections to the complaint. Defendants argued that this court lacked jurisdiction over the action because plaintiff should have pursued her remedies under the Medicare Act. Additionally, defendants argued that the complaint, inter alia, failed to plead claims in separate counts; failed to set forth material facts; failed to attach agreements and writings; and failed to identify whether the agreement was oral or written.

On December 14, 2010, this court sustained the preliminary objections and dismissed the complaint. This appeal followed.

ALLEGATIONS OF ERROR

Pursuant to Pa.R.A.P. 1925(b), the appellant has filed a statement of matters complained of on appeal. This statement of matters is as follows:

1. The trial court erred in sustaining the defendants’ preliminary objections and dismissing the complaint in its entirety.
2. The trial court erred in sustaining the defendants’ preliminary objections and dismissing the complaint, because the trial court did not lack subject matter jurisdiction over the action.

DISCUSSION

The Medicare Act, Title XVIII of the Social Security Act, 79 Stat. 291, as amended, 42 U.S.C.S. §1395 et seq., authorizes the Secretary of Health and Human Services to determine what claims are covered by the Act in accordance with the regulations prescribed by him. 42 U.S.C.S. §1395ff(a). Judicial review in federal district court of claims arising under the Medicare Act is available only after the Secretary of Health and Human Services renders a “final decision” on the claim, in the same manner as is provided in 42 U.S.C.S. §405(g) for old age and disability claims arising under Title II of the Social Security Act, specifically 42 U.S.C.S. §1395ff(b)(l)(C).

The United States Supreme Court has previously held that a “final decision” is rendered on a Medicare claim only after the individual claimant has pressed his claim through all designated levels of administrative review. Heckler v. Ringer, 466 U.S. 602 (1984).

First, the Medicare Act authorizes the Secretary of Health and Human Services to enter into contracts with fiscal intermediaries providing that the latter will determine whether a particular medical service is covered by Part A, and if so, the amount of the reimbursable expense for that service. 42 U.S.C.S. §1395h. If denial of the claim is affirmed after reconsideration and if the claim exceeds $100, the claimant is entitled to a hearing before an administrative law judge in the same manner as is provided for claimants under Title II of the Social Security Act. Heckler, 466 U.S. at 606. If the claim is again denied, the claimant may seek review in an appeals council. If the appeals council also denies the claim and if the claim exceeds $1,000, only then may the claimant seek judicial review in federal district court. Id. at 606-607.

The third sentence of 42 U.S.C.S. §405(h), made applicable to the Medicare Act by 42 U.S.C.S. §1395ii, provides that §405(g) is the sole avenue for judicial review for all “claims arising under” the Medicare Act. The Supreme Court has farther construed this “claim arising under” language quite broadly to include any claims in which both the standing and the substantive basis for the presentation of the claims is the Social Security Act. Heckler, 466 U.S. at 608. To be sure, certain Medicare-related claims may be wholly collateral to claims for benefits and therefore would not be barred from federal courts pursuant to §405(h). However, a party cannot avoid the Medicare Act’s jurisdictional bar simply by styling its attack as a claim for collateral damages instead of a challenge to the denial of benefits. Bodimetric Health Services, Inc. v. AETNA Life & Casualty, 903 F.2d 480 (7th Cir. 1990). If litigants could routinely obtain judicial review of denials of benefits by re-characterizing their claims under state and federal causes of action, the Medicare Act’s goal of limited judicial review for a substantial number of claims would be severely undermined. Id. at 487.

In this case, plaintiff is a Medicare beneficiary. Plaintiff’s claims pertain to defendants’ denial of coverage of a prescription drug called Tranxene T-Tab 7.5 milligram, a benzodiazepine excluded from coverage under the Medicare Act. The complaint brought by plaintiff does not specifically state what the causes of action are, but this court interpreted the allegations to consist of breach of contract and equity claims related to defendants’ representatives’ earlier assurances that the drug would be covered and defendants’ subsequent denial of coverage for the drug. This court determined that these claims arise under the Medicare Act, insofar as the alleged actionable conduct pertained to defendants’ failure to provide the requested prescription drug. This court further determined that plaintiff had full and adequate remedies available to her, in the administrative review procedure and in the federal courts, as set forth in the Medicare Act.

CONCLUSION

Accordingly, for the aforementioned reasons, this appeal should be denied.


author: WORTHINGTON, J,

text:
    Touchette v. Weis Markets, Inc.

      James Conaboy, for plaintiffs.

      Jason Banonis and Frank Baker, for defendants.
    March 3, 2011
   WORTHINGTON, J,

This matter comes before the court on Mary and Kevin Touchette’s (hereinafter “plaintiffs”) appeal of our order dated December 8, 2010 granting the defendants’ motion for summary judgment. The procedural history of the case is summarized as follows:

On July 7,2008, the plaintiffs filed a complaint against Weis Markets Inc., T/A Mr. Z’s Supermarket (hereinafter “Weis”) after Ms. Touchette sustained injuries following a slip and fall in the parking lot area on February 3, 2008.

On July 30, 2008, Weis filed its answer to plaintiffs’ complaint claiming that it is a tenant in a limited part of the property and had no responsibility for or right to control the area of the property where Ms. Touchette fell.

On August 28, 2008, the plaintiffs filed an amended complaint adding Mount Pocono Retail, LLC (hereinafter “MPR”) as a defendant in the matter. MPR is the lessor of the property where the fall occurred. On September 5, 2008, Weis filed its answer to plaintiffs’ amended complaint and a crossclaim against MPR for breach of contract and negligence. On November 13, 2008, MPR filed its answer and new matter/crossclaim to plaintiffs’ amended complaint. On November 30, 2008, MPR filed a praecipe for writ to join additional defendant Grassie & Sons, Inc. Grassie & Sons, Inc. was under contract with MPR for snow removal in the parking lot where the plaintiff fell.

On August 30, 2010, MPR filed a motion for summary judgment, a brief in support and a praecipe for argument. Defendants. Weis and Grassie & Sons, Inc. joined in that motion. Argument on MPR’s motion for summary judgment was scheduled for December 6,2010 and granted on December 8, 2010.

The plaintiffs filed a notice of appeal with the Superior Court on January 3,2011. Accordingly, on January 6,2011, we ordered that the plaintiffs file a statement pursuant to Pa.R.A.P. 1925(b) within 21 days. Said statement was filed by the plaintiffs on January 20, 2011. We now submit this opinion in accordance with Pa.R.A.P. 1925(a).

In their 1925(b) statement, the plaintiffs argue that the trial court committed an error in granting defendants’ motion for summary judgment because there are genuine issues of material fact that exist on liability, namely: 1) Weis and MPR, in their hiring of Grassie & Sons, Inc. to remove snow from the parking lot, created the dangerous, transitoiy condition that lead to Ms. Touchette’s fall; 2) Weis and MPR were the owners of the parking lot, in possession and control of it, should have known of the dangerous, transitory condition and should have taken steps to prevent the accumulation of snow and ice; 3) plaintiff did not assume the risk of injury and whether she knew of the existence of the risk or fully appreciated the magnitude of that risk is a question of fact to be determined by a jury; and 4) the defendants had a duty to protect Ms. Touchette from the risk of harm that she might fall.

Pennsylvania law provides that summary judgment may be granted only in those cases in which the record clearly shows that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. The moving party has the burden of proving that no genuine issues of material fact exist. In determining whether to grant summary judgment, the trial court must view the record in the light most favorable to the non-moving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Thus, summary judgment is proper only when the uncontroversial allegations in the pleadings, depositions, answers to interrogatories, admissions of record and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. In sum, only when the facts are so clear that reasonable minds cannot differ, may a trial court properly enter summary judgment. Barnish v. KWI Building Company, 916 A.2d 642, 645 (Pa. Super. 2007).

Oral testimony alone, either through testimonial affidavits or depositions, of the moving party’s witnesses, even if uncontradicted, is generally insufficient to establish the absence of a genuine issue of material fact. Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A.2d 523 (1932). Summary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 585-86, 812 A.2d 1218, 1221-22 (Pa. 2002).

In its motion for summary judgment, the defendants claim that they owed no duty to the plaintiffs because the plaintiffs assumed the risk of injury from a known and avoidable danger. As such, they claim that there are no genuine issues of material fact as to this necessary element of a negligence claim and that, summary judgment should be granted.

It is axiomatic that in order to maintain a negligence action, the plaintiff must show that the defendant had a duty “to conform to a certain standard of conduct;” that the defendant breached that duty; that such breach caused the injury in question; and actual loss or damage. Phillips v. Cricket Lighters, 576 Pa. 644, 658, 841 A.2d 1000, 1008 (2003).

In applying the above test to the instant matter, we remain cognizant of the fact that we are reviewing the entry of summary judgment on this claim. Id. at 1009. Thus, as noted supra, we are directed to view the record “in the light most favorable to the non-moving party. All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Kanfando, 764 A.2d 59, 61.

The standard of care a possessor of land owes to one who enters upon the land depends upon whether the person entering is a trespasser, a licensee or invitee. Carrender v. Fritterer, 503 Pa. 178, 184, 469 A.2d 120, 123 (1983). In this case, it is undisputed that Ms. Touchette was a business invitee of Weis Markets Inc. Pennsylvania law as to premises liability regarding an invitee was set forth by our Supreme Court in Carrender, as follows:

Possessors of land owe a duty to protect invitees from foreseeable harm. Restatement, supra, §§ 341 A, 343 & 343A. With respect to conditions on the land which are known to or discoverable by the possessor, the possessor is subject to liability only if he,
“(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitee, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.” Carrender, 503 Pa. 178, 185, 469 A.2d 120, 123; Restatement, supra, § 343A.

However, “[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” Id. A danger is deemed to be “obvious” when “both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence, and judgment.” Id.; Restatement, supra, § 343A cmt. b. For a danger to be “known,” it must “not only be known to exist, but... also be recognized that it is dangerous and the probability and gravity of the threatened harm must be appreciated.” Carrender, at 124; Restatement, supra, § 343A cmt. b.

Although the question of whether a danger was known or obvious is usually a question of fact for the jury, the question may be decided by the court where reasonable minds couldnot differ as to the conclusion. Id.; Restatement, supra, § 328B comments c and d.

Carrender is substantively identical to the case at bar. The plaintiff in Carrender sustained personal injuries when she slipped and fell on ice in a parking lot at her chiropractor’s office. The record from trial revealed that the plaintiff was aware of the ice that she slipped on, and appreciated the danger that it posed, i.e. that it could cause her to slip and fall. Despite such knowledge and appreciation, the plaintiff proceeded to walk on the ice. Under such facts, the Supreme Court held that the legal consequence of the invitee’s assumption of a known and avoidable risk is that the possessor of land is relieved of a duty of care to the invitee.

In the case at bar, the record reveals that the plaintiff is a high school graduate of normal perception, intelligence and judgment. Additionally, plaintiff was clearly aware of the snow and ice accumulation on the parking lot surface next to the vehicle she was exiting. This premise is supported by the following deposition testimony of the plaintiff:

MR. DEISHER: Now, when you got out of your friend’s car and stepped onto the parking lot, did you look at the parking lot surface before you stepped on it?
MS. TOUCHETTE: Well, when I opened the door, you saw there was like snow. It was rough and it was white with ice.
MR. DEISHER: Okay. So, you noticed that there was snow and ice on the parking lot surface when you got out of the car?
MS. TOUCHETTE: Yes.
MR. DEISHER: All right. When you stepped out immediately with your right foot, did you step onto the snow and ice?
MS. TOUCHETTE: Yes.
MR. DEISHER: Then also when you stepped out with your left foot, did you step onto the snow and ice.
MS. TOUCHETTE: Yes.
MR. DEISHER: And then there was snow and ice along this whole distance? And let me define what I mean by the whole distance. Between the curb and where you stepped out, all the way running the length of the car to the back of the curbing area, the back of the island, was there snow and ice along that whole distance?
MS. TOUCHETTE: Yes. N.T., 1/11/10, p. 30-31.

Not only does the record reveal that the plaintiff was aware of the snow and ice on the parking lot surface next to the vehicle she was exiting, but the plaintiff was also aware of the risk she was taking in stepping onto it. This is evidenced by the following testimony:

MR. DEISHER: All right. Now, on your way into the store, and when you walked over that snow and ice, did you have any difficulties? In other words, did you slip and fall, did you almost slip and fall, did you lose your balance?
MS. TOUCHETTE: I stayed very close to the car and took my time.
MR. DEISHER: Did you hold onto the car?
MS. TOUCHETTE: Yes.
MR. DEISHER: Did you hold onto - why did you hold onto the car?
MS. TOUCHETTE: Because I was afraid I was going to slip.
MR. DEISHER: And fall?
MS. TOUCHETTE: Fall, yes.
MR. DEISHER: Because of the ice and snow?
MS. TOUCHETTE: Yes. N.T., 1/11/10, p. 30-32.

After the plaintiff’s exit from the vehicle, she made it clear that she encountered no other snow or ice accumulations in the parking lot:

MR. DEISHER: Okay. Just so the record’s clear, the ice and snow you’re talking about was only in the area on the parking lot surface adjacent to the curb area running the length of the car?
MS. TOUCHETTE: Yes.
MR. DEISHER: On the passenger side?
MS. TOUCHETTE: Yes.
MR. DEISHER: But once you cleared the back of the car and you made a left, you were still in the parking lot, but then there was no ice and snow. Did I get that right?
MS. TOUCHETTE: Correct. N.T., 1/11/10, p. 34.

Common sense dictates that walking on snow and ice bears the risk of slipping, falling and possibly injuring oneself, No one knew this better than the plaintiff. In fact, she specifically testified to the following:

MR. DEISHER: All right. What did you do when Ann (plaintiff’s friend) went to take both of the carts back to the cart area?
MS. TOUCHETTE: I was waiting for her to come back.
MR. DEISHER: All right. So, where did you wait? Did you wait in the back of the car? Did you wait, you know, at the door on the passenger side front? Where did you wait?
MS. TOUCHETTE: In the back of the car.
MR. DEISHER: So, you hadn’t tried to get back into the car yet?
MS. TOUCHETTE: No.
MR. DEISHER: Is there any reason why you waited for Ann to get back?
MS. TOUCHETTE: Because of the - the ice and the snow.
MR. DEISHER: All right. Were you concerned about navigating that area where the ice and snow was?
MS. TOUCHETTE: Yes.
MR. DEISHER: Why were you concerned?
MS. TOUCHETTE: Because it looked slippery. N.T., 1/11/10, p. 34.

Despite plaintiff’s admitted knowledge that ice and snow was present and her fear that she might fall because of the slippery conditions, she never asked for help nor did she ask her friend and the driver of the vehicle, Debbie Molnar, to back out of the parking space so that she could enter the car safely. N.T., 1/11/10, p. 43-44. In fact, Ms. Molnar specifically testified that nothing prevented her from backing her vehicle out of the parking space so that plaintiff could avoid walking over the ice and snow. N.T., 1/11/10, p. 27-28.

Instead, the plaintiff proceeded to walk over the ice and snow in order to enter the vehicle. It was at that time that the plaintiff slipped and fell, sustaining injuries. N.T., 1/11/10, p. 39-40.

Under the doctrine of assumption of the risk, a defendant is relieved of its duty to protect a plaintiff where the plaintiff has voluntarily and deliberately proceeded to face a known and obvious risk and therefore is considered to have assumed liability for his own injuries. Our Supreme Court on occasion has affirmed a trial court’s decision that as a matter of law, a plaintiff voluntarily proceeded in the face of a known risk and absolved the defendant from responsibility for the injuries sustained. Id. at 130-31. However, the determination that the plaintiff has assumed the risk of his injuries such that recovery is prevented should occur only where it is beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition. Id. at 131.

In this case, the plaintiff’s deposition testimony clearly indicates that she had actual knowledge of the location of the snow and ice, its slippery propensities and the dangers she faced in voluntarily attempting to walk over it — well before she actually fell, (emphasis added) Furthermore, under Pennsylvania law, there are some dangers that are so obvious that they will be held to have been assumed as a matter of law despite assertions of ignorance to the contrary. Howell v. Clyde, 533 Pa. 151, 620 A.2d 1107 (Pa. 1993). Ice is always slippery, and a person walking on ice always runs the risk of slipping and falling. Barrett v. Fedavid Builders, Inc., 685 A.2d 129 (Pa. Super. 1996).

When an invitee enters business premises, discovers dangerous conditions whicharebothobvious andavoidable, and nevertheless proceeds voluntarily to encounter them, the doctrine of assumption of risk operates merely as a counterpart to the possessor’s lack of duty to protect the invitee from those risks. Carrender, at 125; See Harper & James, The Law of Torts, Vol. 2 § 21.1(1956); Prosser, Law of Torts § 68 at 440-446 (4th ed. 1971); Restatement, supra, § 496A comment c & § 496C comments b, d, & e. By voluntarily proceeding to encounter a known or obvious danger, the invitee is deemed to have agreed to accept the risk and to undertake to look out for himself. Carrender, at 125. It is precisely because the invitee assumes the risk of injury from obvious and avoidable dangers that the possessor owes the invitee no duty to take measures to alleviate those dangers. Thus, to say that the invitee assumed the risk of injury from a known and avoidable danger is simply another way of expressing the lack of any duty on the part of the possessor to protect the invitee against such dangers. Id.

The defendants in this case owed Ms. Touchette a duty to exercise reasonable care to protect her from conditions on the land which were known or discoverable to them. However, the plaintiff assumed the risk of her injury when she knowingly and voluntarily walked over the snow and ice not once, but twice. As such, the defendant’s duty to the plaintiff was discharged. We find no genuine issue of material fact on this necessary element of the plaintiff’s negligence claim and believe that the granting of defendant’s motion for summary judgment is sound.


author: NEALON, J,

text:
    Lasavage v. Smith

      David W. Saba, for plaintiff.

      Eileen Kelly Keefe, for defendants Smith and Scranton Heart Institute, P.C.

      Michael P. Perry, for defendant Community Medical Center.
    March 31, 2011
   NEALON, J,

Defendants Stafford M. Smith, M.D. (“Dr. Smith”) and Scranton Heart Institute, P.C. (“the Institute”) have filed preliminary objections to the allegations of “recklessness,” “outrageous, wanton and grossly indifferent conduct” and “reckless indifference to the rights of Plaintiff’s decedent” contained in paragraphs 71-73, 74(a) and 76 ofthe complaint that has been filed by plaintiff John Lasavage, executor of the estate of John S. Lasavage (“Lasavage”). Dr. Smith and the institute assert that Lasavage’s allegations are insufficient as a matter of law to support a claim of reckless conduct or a putative right to punitive damages. Following the completion of oral argument on March 30, 2011, the preliminary objections were submitted for a decision.

Preliminary obj ections in the nature of a demurrer test the legal sufficiency of the complaint, Feingold v. Hendrzak, 2011 WL 590294 at *2 (Pa. Super. 2011), and “whether the pleading would permit recovery if ultimately proven.” Foster v. UPMC South Side Hospital, 2 A.3d 655, 662 (Pa. Super. 2010), app. denied, 12 A.3d 371 (Pa. 2010). When considering preliminary objections, all material facts set forth in the challenged pleading are admitted as true, as well as inferences reasonably deducible therefrom. Haun v. Community Health Systems, 2011 WL 166324 at *3 (Pa. Super. 2011). Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases that are clear and free from doubt. Feingold, supra1, Foster, supra. “To be clear and free from doubt that dismissal is appropriate, it must appear with certainty that the law would not permit recovery by the plaintiff upon the facts averred.” Ira G. Steffy & Son, Inc. v. Citizens Bank of Pennsylvania, 7 A.3d 278, 283 (Pa. Super. 2010). If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections. Feingold, supra; Haun, supra; Ira G. Steffy & Son. Inc., supra.

Lasavage’s malpractice claims against Dr. Smith relate to Dr. Smith’s treatment of the decedent in late May 2008. Lasavage seeks to hold the institute vicariously liable for the actions of Dr. Smith (plaintiff’s complaint, ¶¶4,6,73, 74(a)). In addition, Lasavage separately asserts a corporate liability claim against the Institute pursuant to Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991) and Hyrcza v. West Penn Allegheny Health System, Inc., 978 A.2d 961, 982-983 (Pa. Super. 2009), app. denied, 604 Pa. 706, 987 A.2d 161 (2009). (Id., ¶¶5, 74(b)-(ff) and (ww)-(dd)).

According to the allegations of the complaint, Dr. Smith admitted the decedent to defendant Community Medical Center (“CMC”) on May 29, 2008 based upon the results of a myocardial perfusion scan that was performed on the decedent (Id., ¶¶27-28). On that date, Dr. Smith performed a left heart catheterization with placement of stents, following which he issued a physician’s order requiring the immediate and daily administration of Plavix and Ecotrin to the decedent in order to prevent clotting (Id., ¶¶29-34). However, the decedent did not receive Plavix on May 29, 2008, nor was he administered Ecotrin or Plavix on May 30, 2008 (Id., ¶¶36-37).

Dr. Smith examined the decedent on May 30,2008, but took no action to either determine or ensure compliance with his earlier medication order (Id., ¶¶38-40). Instead, Dr. Smith opted to discharge the decedent even though he had not received his required Plavix or Ecotrin (Id., ¶¶41, 54). Dr. Smith thereafter dictated a discharge summary reflecting that the decedent’s medications at the time of discharge included Plavix and Ecotrin which were to be administered daily (Id., ¶48). Notwithstanding the fact that Plavix “can only be obtained by a physician’s prescription,” Dr. Smith discharged the decedent without issuing “any prescription for Plavix” to the decedent (Id., ¶¶50-51).

On May 30, 2008 at 11:20 p.m., the decedent was admitted to Marian Community Hospital with complaints of protracted vomiting and an admitting diagnosis of dehydration (Id., ¶55). The attending physician at Marian Community Hospital issued an order for a cardiology consultation by Dr. Smith “to take place during the morning hours of May 31, 2008” (Id., ¶57). An entry in the hospital chart at 3:00 p.m. on May 31,2008 states “[w] aiting for cardiology to see patient — if not in by 1900 call MD back to discharge Pt” (Id., ¶58). A later entry made at 7:30 p.m. on that date indicates that Dr. Smith was called and issued a discharge instruction for the decedent to “[r] esume all previous meds as per Dr. Smith,” albeit without ever examining or speaking with the decedent to ascertain whether he was taking Plavix or Ecotrin (Id., ¶¶59-60).

On the following day, the “decedent was found dead in his home by members ofhis family” (Id., ¶61). Asubsequent autopsy revealed that his death was attributable to “acute myocardial infarction caused by complete occlusion of the left anterior descending coronary artery proximal stents by clot/thrombus” (Id., ¶¶62-63). Lasavage commenced this litigation on March 30, 2010, seeking damages under the Wrongful Death Act and the Survival Act.

Lasavage contends that Dr. Smith’s “negligence and/ or recklessness” included his failure (a) to ensure that the decedent received Plavix and Ecotrin as ordered on May 29, 2008 and May 30, 2008, (b) to prescribe Plavix for the decedent upon his discharge from CMC, (c) to review decedent’s chart prior to discharge to determine whether the medications ordered had been administered, and (d) to consult on the decedent’s care when requested to do so at Marian Community Hospital on May 30, 2008 and May 31, 2008 (Id., ^73(b)-(c), (g), (k)-(l)). Lasavage maintains that the Institute is vicariously liable for the “negligence, carelessness and/or recklessness” of Dr. Smith (Id., ¶¶74(^), (nn)-(vv)). Lasavage also asserts independent corporate liability on the part of the Institute (Id., ^74(b)-(ff), (ww)-(ddd)). Finally, Lasavage avers that the actions of Dr. Smith and the Institute “amounted to reckless indifference to the rights of plaintiff’s decedent, a conscious indifference to the consequences of their actions, and outrageous, wanton and grossly indifferent conduct” (Id., ¶76.). Dr. Smith and the Institute challenge the legal sufficiency of those averments and Lasavage’s concomitant right to punitive damages.

The recovery of punitive damages in medical malpractice litigation is governed by Section 505 of the Medical Care Availability And Reduction of Error (MCARE Act), 40 P.S. §1303.505, which is a reenactment of Section 812-A of the former Health Care Services Malpractice Act, 40 P.S. §1301.812-A (repealed). See, Wagner, supra, at * 4; Fasula v. Hijazi, 44 D. & C. 4th 553,561 (Lacka. Co. 1999). Section 505(a) ofthe MCARE act provides that “[pjunitive damages may be awarded for conduct that is the result of the health care provider’s willful or wanton conduct or reckless indifference to the rights of others.” 40 P.S. §1303.505(a). However, in the context of a medical negligence claim, “[a] showing of gross negligence is insufficient to support an award of punitive damages.” 40 P.S. §1303.505(b).

The Superior Court of Pennsylvania recently confirmed that “in Pennsylvania, a punitive damages claim must be supported by evidence sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) [s]he acted, or failed to act, as the case may be, in conscious disregard of that risk.” Daniel v. Wyeth Pharmaceuticals, Inc., 2011 WL 365500 at * 17 (Pa. Super. 2011) (quoting Hutchison v. Luddy, 582 Pa. 114,123, 870 A.2d 766, 772 (2005)). Since professional negligence actions involve allegations that health care professionals deviated from the governing standard of care, see, Tindall v. Friedman, 970 A.2d 1159, 1176 (Pa. Super. 2009), punitive damages are generally not recoverable in malpractice actions unless the medical “provider’s deviation from the applicable standard of care is so egregious as to evince a conscious or reckless disregard of a patent risk of harm to the patient.” Wagner, supra, at * 5; Zazzera v. Roche, 54 D. & C. 4th 225,232 (Lacka. Co. 2001); Scott v. Plucknett, 102 Lacka. Jur. 445,450 (2001). Whether the conduct of a malpractice defendant rises to the level of willful, wanton or recklessly indifferent conduct under 40 P.S. § 1303.505(a) depends upon the particular circumstances at issue. See e.g., Klonoski v. Farrell, 103 Lacka, Jur. 179, 184-185 (2002) (allegations that physician consciously overbooked his surgical schedule for financial reasons and thereby performed surgery hastily and without first reviewing pre-operative diagnostic testing results were sufficient to withstand demurrer to punitive damages claim); Zazzera, 54 D. & C. 4th at 234-235 (preliminary objections to punitive damages claim overruled where surgeon erroneously operated on healthy left carotid artery despite earlier ultrasound that he reviewed which revealed that patient’s right carotid artery was stenosed and in need of endarterectomy); Scott, 102 Lacka. Jur. at 451 (averments that obstetrician (a) left hospital grounds to return to her private office even though she knew that her patient’s labor was not being properly monitored, (b) blatantly ignored the advice of a consulting perinatologist regarding the need for an immediate Cesarean delivery, and (c) inexplicably delayed the start of the recommended delivery for more than three hours, adequately averred a claim for punitive damages). Compare, Wagner, supra at * 6 (contentions that physician failed to prescribe antibiotics, order certain tests or request an infectious disease consult constituted “nothing more than ordinary negligence and are insufficient to support an award of punitive damages.”); Dean v. Community Medical Center, 46 D. & C. 4th 334, 345-346 (Lacka. Co. 2000) (dismissing punitive damages claim based upon allegations that cardiologist erroneously diagnosed decedent’s condition and performed invasive procedure without first administering SBE prophylactic antibiotics).

Accepting as true the well-pleaded allegations of the complaint, and affording Lasavage the benefit of all inferences reasonably deducible from those facts, it is not clear and free from doubt that Lasavage may not recover punitive damages from Dr. Smith based upon the factual averments of reckless indifference. Lasavage alleges that Dr. Smith was cognizant of the critical need for Plavix and Ecotrin to prevent blood clots following his placement of stents and based upon the results of the decedent’s earlier myocardial perfusion scan. Despite that knowledge, Dr. Smith purportedly made no effort to determine whether the medications ordered had been administered to the decedent prior to authorizing his discharge. To compound matters further, Dr. Smith indicated in his discharge summary that the decedent was to be administered Plavix daily, but ostensibly neglected to provide him with the prescription which was necessary for him to obtain that medication.

Even after Dr. Smith became aware of the fact that the decedent was so ill shortly after his discharge from CMC that he had to be readmitted at Marian Community Hospital, Dr. Smith did not speak to the decedent or otherwise investigate whether he was taking the Plavix which had been ordered. Furthermore, although the attending physician at Marian Community Hospital had requested that Dr. Smith promptly see the decedent for a cardiology consultation, Dr. Smith never examined or saw the decedent prior to discharging him by telephone on the evening of May 31,2008. Based upon the totality of those alleged circumstances, it is arguable that Dr. Smith had a subjective appreciation of the risk of clotting to which the decedent was exposed and that Dr. Smith failed to act in conscious disregard of that serious risk. See, Daniel, supra. Thus, the allegations of Lasavage’s complaint are sufficient to withstand Dr. Smith’s demurrer.

The same cannot be said for Lasavage’s punitive damages claim against the Institute based upon its vicarious liability for the actions of Dr. Smith and other unidentified agents. The only allegations in the complaint which conceivably charge the institute with “recklessness” are those which reference the conduct of Dr. Smith or other unnamed “employees, workmen, servants, agents and/or ostensible agents” (plaintiff’s complaint, ¶¶73,74). Lasavage’s corporate negligence claims against the Institute concern its failure to adopt and enforce adequate policies, to select andretain competent personnel and to use reasonable care in the maintenance of adequate facilities. Lasavage does not set forth any factual averments which remotely suggest any reckless indifference by the Institute in implementing policies, hiring personnel or maintaining safe facilities. The only possible claim of wanton, willful or recklessly indifferent conduct by the Institute relates to its vicarious liability for the actions of Dr. Smith or other agents.

Although section 505(a) and (b) merely incorporate earlier decisional precedent governing punitive damages, section 505(c) of the MCARE Act heightens the burden of proof for vicarious liability for punitive damages. Pennsylvania case law exposes a principal to vicarious liability for punitive damages based upon the conduct of an agent even if the agent did not commit the act at the direction of the principal, or the principal did not ratify the act. See, Shiner v. Moriarty, 706 A.2d 1228, 1240 (Pa. Super. 1998), app. denied, 556 Pa. 711, 729 A.2d 1130 (1998); Burke v. TransAm Trucking, Inc., 605 F.Supp.2d 647, 657 (M.D. Pa. 2009). In contrast, Section 505(c) of the MCARE Act states that “[p]unitive damages shall not be awarded against a health care provider who is only vicariously liable for the actions of its agent that caused the injury unless it can be shown by a preponderance of the evidence that the party knew of and allowed the conduct by its agent that resulted in the award of punitive damages.” 40 P.S. § 1303.505(c). With the advent of section 505(c) “...and its injection of a scienter element into the respondeat superior equation, a health care provider may not be vicariously liable for exemplary damages unless it had actual knowledge of the wrongful conduct of its agent and nevertheless allowed it to occur.” Wagner, supra at *4 (quoting Dean, 46 D. & C. 4th at 344 (analyzing identical language in former 40 P.S. §1301.812-A(c))). Accord, Scott, 102 Lacka. Jur. at 452. By virtue of this heightened standard of proof for vicarious liability, “a patient must now aver and establish that the health care principal was cognizant of the agent’s willful, wanton or recklessly indifferent treatment and allowed that conduct to proceed unabated.” Zazzera, 54 D. & C. 4th at 238 (emphasis in original).

Lasavage’s complaint is devoid of any allegation that the Institute was aware of Dr. Smith’s actions on May 29,2008, May 30, 2008 and May 31, 2008 and that it nonetheless allowed that malpractice to occur. Absent such a specific averment, Lasavage’s vicarious liability claim against the Institute for punitive damages is insufficient as a matter of law. Compare, Scott, 102 Ladea. Jur. at 452 (overruling demurrer on grounds that “the Scotts have averred that Northeastern OB and Mercy Hospital were cognizant of wrongful conduct by their actual or ostensible agents and nevertheless allowed it to persist.”). Consequently, the institute’s preliminary objections to Lasavage’s claim for punitive damages will be sustained based upon 40 P.S. §1303.505(c).

And now, March 31, 2011, upon consideration of the preliminary objections of defendants Stafford M. Smith, M.D. and Scranton Heart Institute, P.C., to the plaintiff’s allegations of outrageous, wanton, reckless and grossly indifferent conduct in paragraphs 71, 72, 73, 74(a) and 76 of the complaint, the memoranda of law submitted by the parties, and the oral argument of counsel on March 30, 2011, and based upon the reasoning set forth above, it is hereby ordered and decreed that:

1. The preliminary objections of defendant StaffordM. Smith, M.D. to the allegations of reckless indifference and any potential claim for punitive damages are overruled;

2. The preliminary objections of defendant Scranton Heart Institute, P.C. to the allegations of reckless indifference and any vicarious liability claim for punitive damages are sustained; and

3. Within the next twenty (20) days, defendants Stafford M. Smith, M.D. and Scranton Heart Institute, P.C. shall file a responsive pleading to the complaint.

      . A decedent’s estate may recover punitive damages under the Su - vival Act, 42 Pa. C.S.A. §8302, provided that the decedent could have recovered punitive damages had [s]he lived. Harvey v. Hassinger, 461 A.2d 814, 816 (Pa. Super. 1983); Wagner v. Onofrey, 2006 WL 3704801 at *3 n. 3 (Lacka. Co. 2006). Although Lasavage does not specifically reference or demand “punitive damages” in his complaint, his cause of action under the Survival Act avers that Lasavage “claims on behalf of the estate all damages recoverable by law including, but not limited to, the physical pain and suffering plaintiffs’ decedent endured prior to his death, the loss of earnings and earning capacity suffered by plaintiff’s decedent and the total limitation and deprivation of the activities, pursuits and pleasures he would have experienced had he lived out the duration of his normal life expectancy” (plaintiff’s complaint, ¶82). Since punitive damages are “recoverable by law” in an action brought pursuant to 42 Pa.C.S.A. §8302, and Dr. Smith and the Institute have not challenged Lasavage’s use of the phrase “including, but not limited to” in paragraph 82 of the complaint. Compare, Cicero v. Cominsky, 25 D. & C. 4th 422, 424 (Luz. Co. 1995) (striking “including, but not limited to” language from plaintiff’s complaint), we will assume for purposes of the instant demurrer that Lasavage is advancing a claim for punitive damages.


author: MOTTO, P.J.,

text:
    Arrow Fin. Servs., LLC v. Hambrick

      David J. Apothaker, for plaintiff.

      Susan M. Papa, for defendant.
    April 13, 2011
   MOTTO, P.J.,

Before the court for disposition is defendant Duane Hambrick’s petition to open and/or strike default Judgment. The current action arises from the entry of a default judgment against defendant on or around June 1, 2010 in favor of plaintiff Arrow Financial services (“AFS”). For the reasons that follow, defendant’s petition is denied.

Defendant Flambrick was served with the complaint filed against him by plaintiff AFS on April 13, 2010. No appearance was entered by defendant or any attorney on his behalf. On May 6, 2010, plaintiff notified defendant of the default. Again, defendant failed to respond, and on June 1,2010, the prothonotary entered a default judgment against defendant in the amount of $5,116.02 plus costs. On November 29, 2010, defendant’s attorney filed the currently contested petition and oral arguments was held on March 28, 2011.

A petition to open a default judgment is a matter of judicial discretion and is addressed to the equitable powers of the court. A court may only exercise this discretion when (1) the petition has been promptly filed; (2) a meritorious defense can be shown; and (3) the failure to appear can be reasonably explained or excused. Balk v. Ford Motor Company, 446 Pa. 137, 140, 285 A.2d 128,131 (Pa. 1971); Fox v. Mellon, 438 Pa. 364, 367, 264 A.2d 623, 625 (Pa. 1970). For this court to exercise its discretion and open the default judgment against him, Defendant Hambrick must satisfy each prong of the test.

When a petition to open default judgment is filed within 10 days of entry of the judgment on the docket, the delay is excusable as a matter of law and no explanation for the delay is required. Pa.R.C.P. § 237.3. When the delay is greater then 10 days, the delay is no longer excusable by law and the court must determine promptness. In determining promptness, the court focuses on two things: 1) the length of the delay between discovery of the default judgment entry and filing the petition to open; and 2) the reason for the delay. Dumoff v. Spencer, 754 A.2d 1280, 1282 (Pa. Super. 2000); Allegheny Hydro No. 1 v. American Line Builders, Inc., 722 A.2d 189, 193 (Pa. Super. 1998).

Courts addressing the issue of promptness have held that failure to timely file a petition to open may be grounds for its denial. See B.C.Y., Inc. Equipment Leasing Assocs. v. Bukovich, 390 A.2d 276, 278 (1978) (21-day delay is not prompt); Allegheny Hydro 1, 722 A.2d at 194 (41-day delay is not prompt); Dumoff, 754 A.2d at 1283 (four-month delay not prompt); Alba v. Urology Assocs. of Kingston, 598 A.2d 57, 58 (Pa. Super. 1991) (14-day delay is timely); Fink v. General Accident Ins. Co., 594 A.2d 345, 346 (Pa. Super. 1991) (five-day delay is timely).

Default judgment was entered against defendant on June 1,2010. Defendant’s petition to open was filed November 29, 2010, almost a full six months after the entry of the judgment on the docket. In the petition to open, defendant has only alleged a meritorious defense; no averments explaining the lengthy filing delay are contained therein. Because defendant has failed to proffer an explanation for the six-month delay in filing the petition to open, the court, in accordance with established precedent, must deny defendant’s request to open the default judgment.

The court next turns to defendant’s petition to strike. In ruling on a petition to strike a default judgment, the trial court must first determine whether the default judgment was void, voidable, or valid. Williams v. Wade, 704 A.2d 132, 134 (Pa. Super. 1998). If the court determines that the default judgment is void, the timeliness of the petition is not a factor and the judgment will be stricken. Id. If the court determines the judgment is voidable, timeliness is a factor and the petition will only be granted if the petition was filed within a reasonable time. Id. If the judgment is found to be valid, the petition to strike is denied and timeliness of the petition is not a factor. Id.

The first question the court must decide is whether the default judgment is valid; if so, the court will not need to address the question of timeliness. Defendant supports his petition with the case of Wells Fargo Bank v. Lupori, 8 A.3d 919 (Pa. Super. 2010), wherein the Superior Court reviewed a trial court’s denial of a petition to strike default judgment according to the following standard:

With regard to a motion to strike a default judgment, a court may only look at the facts of record at the time judgment was entered to decide if the record supports the judgment. A petition to strike does not involve the discretion of the court. A petition to strike a judgment will not be granted unless a fatal defect in the judgment appears on the face of the record. Matters outside of the record will not be considered, and if the record is self-sustaining, the judgment will not be stricken. Lupori, 8 A.3d at 920 quoting Aquilino v. Philadelphia Catholic Archdiocese, 884 A.2d 1269, 1280 (Pa. Super. 2005).

A petition to strike is therefore a demurrer to the record. If a fatal defect or irregularity is apparent from the face of the record, the prothonotary will be held to have lacked the authority to enter a default judgment and the default judgment will be considered void. Wells Fargo v. Lupori at 921 (quoting U.S. Bank, N.A. v. Mallory, 982 A.2d 986, 991 (Pa. Super. 2009).

In Wells Fargo v. Lupori, the Superior Court reviewed Wells Fargo’s complaint and found that a fatal defect was apparent on the face of the record. Id. at 922. Wells Fargo had instituted a foreclosure action again Luporis, but had failed to allege any assignment of the mortgage to Wells Fargo or that Wells Fargo was the owner of the mortgage, nor was any documentary evidence of any assignment to Wells Fargo attached to the complaint. Id. As a result of this failure, the complaint did not comply with rule 1147(a) (1) requiring a mortgage foreclosure complaint to contain the necessary allegations showing that the plaintiff is the owner of the mortgage, particularly requiring that any assignment to plaintiff be alleged. Therefore, the record did not support entry of the default judgment because it could not be determined from the complaint how Wells Fargo had standing to foreclose. Id. Because the default judgment was void, the timeliness of the petition filed by the Luporis was irrelevant to the decision of the Superior Court and the default judgment was stricken. Id.

In the matter currently before the court, defendant Hambrick contends that the original complaint filed by plaintiff does not support a default judgment. Defendant argues that plaintiff’s failure to comport with the rules of pleading found at Pa.R.c.P. § 1019 by attaching a copy of any asignment is a fatal defect apparent on the face of the record and merits the striking of the default judgment.

Having examined the record at the time default judgment was entered against defendant, this court has determined that the entry of default judgment was valid. Like the plaintiff in Wells Fargo v. Lupori, plaintiff AFS has failed to attach to its complaint any documentary evidence of the assignment of defendant Hambriclc’s account. Unlike the plaintiff in Wells Fargo v. Lupori, however, plaintiff AFS has alleged in the complaint that it is the assignee and successor in interest to the account issued by HSBC Bank Neveda N.A. to defendant Hambrick. The presence of such an allegation on the record is sufficient support for the entry of default judgment because plaintiff has sufficiently alleged its ownership of the account for which it seeks recovery.

Defendant Hambrick is correct in his assertion that the complaint did not comply with the requirements of Pa.R.C.P. § 1019(h) and (i). While it is true that the failure to attach documentary evidence would have given defendant meritorious preliminary objections to the complaint, the failure to attach the documents is not a fatal defect in and of itself. Plaintiff AFS alleged the existence of the assignment as a factual matter; thus, the complaint supports the entry of the judgment unlike the circumstances in Wells Fargo. The case sub judice is similar to U.S. Bank, N.A. v. Mallory, Supra, which Wells Fargo distinguished, where the complaint alleged the existence of a pending assignment, without attaching any written documentation thereof. The Mallory court determined that the allegation of the assignment was sufficient to put defendant on notice that the bank was the legal owner of the mortgage. The question is whether from a reading of the complaint, whether plaintiff has alleged a factual basis for it to institute suit and obtain a recovery. The court concludes that the entry of the default judgment against defendant Hambrick was valid, and therefore defendant’s motion to strike the default judgment must be denied.

ORDER OF COURT

And now, April 13,2011, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered and decreed that the defendant’s petition to open and/or strike default judgment is hereby denied.


author: KEOGH, J,

text:
    Wellington v. Westrum Development Co.

      Dashika R. Wellington, for plaintiffs.

      William D. Auxer, for defendant.
    March 17, 2011
   KEOGH, J,

The plaintiffs filed an appeal of this court’s January 11, 2011 order granting defendants’ petition to compel arbitration.

I. PROCEDURAL/FACTUAL HISTORY

1. On December 11, 2009, plaintiffs filed a praecipe for writ of summons against defendants. The praecipe was reissued on January 11, 2010. After the filing of the complaint the parties stipulated to the filing of an amended complaint, which occurred on November 19, 2010. In response, defendants filed a petition to compel arbitration.

2. The Westrum defendants were responsible for the sale and construction of a condominium development, Brewerytown Square, located at 1300 North 31st Street, Philadelphia, Pa. The Wellington plaintiff entered into an agreement of sale for a unit in the development with the seller, Westrum Development Company d/b/a Westrum BT LP, on October 20, 2005. The Flynn plaintiffs did the same on April 29, 2006. The contractor for the project was defendant, Westrum Urban Construction LLC, and a “Homeowners Limited Warranty” was issued by the contractor to both buyers. The principal place of business for both defendants is 370 Commerce Drive, Fort Washington, Pennsylvania.

3. Plaintiffs’ amended complaint includes four counts: 1) A violation of the unfair trade practices consumer protection law, 2) breach of contract, 3) breach of express warranty and, 4) breach of statutory warranty, 68 Pa. § 3411; the essence of plaintiffs’ claims is that the HVAC heating system in the newly constructed units did not work properly on the first floor and that the defendants failed to make the necessary repairs to the units.

4. The sales agreement contains an arbitration clause.

5. On December 9, 2010, defendants filed a petition to compel arbitration to enforce the arbitration clause. Plaintiffs opposed the request. The court entered an order on January 11, 2011 granting the petition and directing the parties to arbitrate plaintiffs’ claims.

6. On January 26, 2011, petitioners filed a notice of appeal.

II. DISCUSSION

ArbitrationagreementsaregovemedbythePennsylvania Uniform Arbitration Act, 42 Pa.C.S. § 7301, et. seq. An agreement to arbitrate can be asserted by preliminary objections or by petition. Such agreements are favored as an effective method of dispute resolution. Pursuant to section 7304 of the act, entitled “Court proceedings to compel or stay arbitration,” if a challenge to the agreement is raised the court shall proceed summarily to determine the issue so raised and shall order the parties to proceed with arbitration if itfinds for the moving party.

The party seeking to enforce an agreement to arbitrate must establish that 1) the parties entered into an agreement to arbitrate their disputes, and that 2) the dispute at issue falls within the scope of the arbitration agreement. Ross Dev. Co. v. Advanced Bldg. Dev. Inc, 803 A.2d 194 (Pa. Super. 2002). The Ross court noted that:

We begin our analysis by noting that Pennsylvania courts have long strongly favored arbitration for the resolution of legal disputes. See Bashford v. West Miami Land Co., 295 Pa. 560, 145 A. 678 (1928) (holding that parties to a contract which provides for arbitration are bound by their contract to arbitrate disputes and cannot seek redress elsewhere, and every reasonable intendment will be made in favor of the validity of such agreements); Nippon Ki-Ito Kaisha, Ltd. v. Ewing-Thomas Corp., 313 Pa. 442, 170 A. 286 (1934) (holding settlements by arbitration are no longer deemed contrary to public policy) and Smith v. Cumberland Group, Ltd., 455 Pa. Super. 276, 687 A.2d 1167, 1171 (Pa. Super. 1997) (holding that when parties agree to arbitrate in a clear and unmistakable manner, the court will make every reasonable effort to favor such agreements). 803 A.2d at 196.

The arbitration clause at paragraph 26 of the aales agreement states, in relevant part, that:

Buyer hereby agrees that any and all disputes arising out of this agreement, the home warranty or the construction or condition of the premises, including, but not limited to, disputes concerning breach of contract, express and implied warranties, representations and/ or omissions by seller, on-site and off-site conditions and all other torts and statutory causes of action (“Claims”) shall be resolved by binding arbitration pursuant to the construction rules of arbitration of the American Arbitration Association or its successor or an equivalent organization selected by the Seller..... This agreement to arbitrate shall be specifically enforceable by the parties, and each of them hereby confirm that they intend that all disputes, controversies or claims of any kind shall be arbitrated.

Plaintiffs do not challenge the validity of the arbitration clause; rather, they assert that since the clause is only contained in the sales agreement and not in the limited warranty, and since the contractor was not a signatory to the sales agreement, they cannot be required to arbitrate the claims that they have asserted against the contractor. In the answer in opposition to the petition to compel arbitration, plaintiffs state at ¶ 17,

Indeed, the arbitration clause in the agreement of sale specifically references only the “seller,” which is not Westrum Urban Construction, LLC. The inclusion of a section providing for the resolution of disputes, coupled with the noticeable absence of any reference to arbitration, makes it abundantly clear that the parties did not agree to arbitrate the claims against a defendant where no such contractual agreement exists, this court must retain jurisdiction over all claims asserted against Westrum Urban Construction, LLC. The remaining claims against Westrum BT. L.P. are based on the exact same common nucleus of operative facts, and it would be an extraordinary waste of resources, and a great financial strain to plaintiffs, to require dual litigation of the same claims in two different venues....

Plaintiffs’ logic supports the court’s contrary finding as it would be an extraordinary waste of resources, not to mention an affront to the policy of judicial economy to require litigation where the parties clearly intended for the arbitration of “any and all disputes arising out of this agreement, the home warranty or the construction or condition ofthe premises....” The fact that the contractor is not a signatory of the sales agreement does not undermine the agreement to arbitrate.

Dodds v. Pulte Home Corporation, et. al, 909 A.2d 348 (Pa. Super. 2006), is instructive on this point and compels the court’s finding that the disputes at issue should be arbitrated. In Dodds, homeowners filed suit against the builders and sellers of their homes. The defendants appealed the trial court’s denial of their motion for summary judgment, which requested that the matter be remanded for arbitration. The plaintiffs argued that the inclusion of claims alleging fraud and violation of the UTPCPL, as well as the fact that a non-signatory to the arbitration agreement was named as a defendant took their litigation out of the ambit of arbitration. The Superior Court disagreed and reversed the trial court’s order relying upon an earlier 1998 decision in Shadduck v. Christopher J. Kaclik, Inc., 713 A.2d 635 (Pa. Super. 1998), and held:

The parties to an agreement cannot attempt to defeat an arbitration clause simply by adding fraud allegations to what is essentially a contract claim or by adding a principal as a defendant who was not a party to the agreement. The gist of these actions is in contract, and, therefore, we conclude that the parties are bound by their arbitration agreements. 909 A.2d at 350.

On the issue of a non-signatory to the arbitration agreement, the Dodds court noted that non-signatories to a contract may be covered by an arbitration clause if that is the signing parties’ intent:

Here, the interests of PHC are the same as those of PHCDV. An arbitration agreement would be of little value if a party could obviate the effect of the agreement merely by finding a way to join another party. In no event could the arbitration clause of PHCDV be defeated by adding PHC to the complaint, and because PHC wishes to enforce the arbitration agreement rather than avoid it, plaintiffs, as signatories to the arbitration agreement, should not be able to avoid the requirement to arbitrate by a non-signatory when the non-signatoiy wants to arbitrate. Id. at 352.

Plaintiffs are attempting to avoid arbitration by claiming that the contractor, Westrum Urban Construction LLC, was not a signatory to the sales agreement, thus removing any claims against the contractor out of the ambit of arbitration. This argument is disingenuous; the plaintiffs collectively refer to the defendants as “Westrum” throughout the amended complaint, also noting that the defendants share the same business address. Additionally, the contractual documents at issue, the agreement of sale and the limited warranty, reference that the seller, Westrum BT, L.P., will have the contractor provide a limited warranty of construction of the premises. The sales agreement includes verbatim the warranty language contained in the limited warranty.

The arbitration clause in the agreement of sale encompasses the limited warranty as it references that all disputes arising out of the “Home Warranty” will be arbitrated and as no other warranties have been referenced by the parties, the reasonable conclusion is that the limited warranty is the warranty referenced in the arbitration clause. The agreement of sale further references Westrum Urban Construction, LLC, as the contractor/builder. And, although the sales agreement was executed prior to the extension of the limited warranty, which by agreement could not have occurred until settlement, the sales agreement repeatedly references construction of the units and sets forth a construction schedule.

Moreover, plaintiffs’ argument that the contractor’s status as “non-signatory” prevents arbitration of their claims against the contractor is undercut by the Dodds decision. Plaintiffs, as signatories to the arbitration clause, should not be able to avoid arbitration, especially in light of the fact that both defendants are seeking arbitration and the clause at issue covers the claims raised by plaintiffs in their amended complaint.

Two final points that need to be addressed include the plaintiffs ’ assertion, not raised in their answer in opposition to the petition to compel arbitration but in the supporting memorandum of law, that the sales agreement is a contract of adhesion. The fact that a contract may be found to be one of adhesion, a standard form contract prepared by one party to be signed by the party in a weaker position who has little choice about the terms, does not void the agreement. Rather, the party challenging a contract on that basis must establish that the contract is unconscionable on the basis that one of the parties must lack a meaningful choice about whether to accept the provision in question and the challenged provision must unreasonable favor the other party to the contract. See Salley v. Option One Mortg. Corp., 592 Pa. 323, 925 A.2d 115 (2007). This court finds that the sales agreement is not unconscionable so as to void it; thus the arbitration clause is enforceable.

Secondly, plaintiffs assert that arbitration is not a viable option in this matter since “AAA, on its own ceased hearing certain consumer claims due to concerns of institutional bias against consumers. ” The arbitration clause provides that the arbitration will be conducted “pursuant to the construction rules of arbitration of the american arbitration association. ” In July of 2009, AAA voluntarily decided to suspend arbitration of consumer debt collection cases. At that time, AAA recommended to the house of representatives that additional due process protocols where necessary for these types of cases. The matter at issue is not subject to AAA’s self-imposed suspension. Thus, the suspension provides no bar to the arbitration of plaintiffs’ claims pursuant to AAA’s construction rules of arbitration.

III. CONCLUSION

The sales agreement between the plaintiffs and the defendant-seller includes an arbitration clause, which this court finds addresses all of the claims raised in the amended complaint, including those directed to the defendant-contractor.

Plaintiffs’ argument that the defendant-contractor is a non-signatory to the agreement, and thus arbitration of the claims against that party cannot be required, is undercut by the Dodds decision. There is an obvious and close nexus between the defendants, who share a business address and whom the plaintiffs collectively referred to as the defendants and/or Westrum in the amended complaint.

The court properly granted defendants’ petition to compel arbitration. Accordingly, appellate relief is not warranted.

      . Copies of the sales agreement and warranty were attached as exhibits to both the amended complaint and the petition to compel arbitration.

      . PHC was the parent corporation of PHCDV, against whom the breach of contract claim was asserted. The defendants were identified as the builder and seller of the homes.

      . Factors that are considered in determining the unconscionability of an arbitration agreement include the educational background of a party and whether there was any challenge raised to the agreement. Plaintiffs have not claimed that they attempted to negotiate the elimination of the clause from the sales agreement. Additionally, plaintiff, Dashika Wellington, is an attorney and has been since 2001. She is representing herself as well as the Flynns in this matter.

      . ¶17 of plaintiffs’ answer in opposition to the petition to compel arbitration.

      . A copy of the announcement is attached as an exhibit to this opinion. [Ed. note: not attached here.]


author: ZULICK, J,

text:
    Rosegas, Inc. v. A Pocono Country Place Property Owners Ass’n

      Patricia A. Fecile-Moreland, for plaintiffs.

      Joseph S. Wiesmeth, for defendant.

      March 17, 2011
   ZULICK, J,

This case comes before the court on the motion for judgment on the pleadings of defendant A Pocono Country Place Property Owners Association, Inc. (the “association”). Plaintiffs Rosegas, Inc., Gaston Sterlin and Rosemary Sterlin (Rosegas) commenced this action on March 24, 2010 seeking compensatory and punitive damages as provided by the Pennsylvania Uniform Planned Community Act (“UPCA”). See 68 Pa.C.S.A. § 5412. They assert that the association violated § 5105 of the UPCA when it revoked their tenants’ gate passes at the A Pocono Country Place planned residential community. The association filed an answer and new matter on June 21, 2010 and a motion for judgment on the pleadings on December 13, 2010. The parties submitted briefs and the matter was argued on February 7, 2011.

DISCUSSION

Rule 1034 of the Pennsylvania Rules of Civil Procedure permits any party to move for judgment on the pleadings after the pleadings are closed and authorizes the court to enter such judgment or order as shall be proper on the pleadings. Pa.R.C.P. 1034.

A motion for judgment on the pleadings is similar to a demurrer, and may be entered where there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law. Kosor v. Harleysville Mutual Insurance Co., 595 A.2d 128, 129 (Pa. Super. 1991) (citations omitted). In ruling on such a motion, the court must “confine its consideration to the pleadings and relevant documents.” Id. (citation omitted) If a defendant moves for judgment on the pleadings, the court will consider all of the pleadings in arriving at its decision. Herman v. Stern, 419 Pa. 272, 213 A.2d 594 (Pa. 1965).

Rosegas has brought claims for violation of the Uniform Planned Community Act in count I of the complaint, tortious interference with contractual relations in count II, and seeks punitive damages in count III. Rosegas owns a total of 30 units in the A Pocono Country Place community, 11 of which are improved with homes and 19 of which are vacant lots. Rosegas paid association dues on the 11 rental properties in 2008, but did not pay dues on the 19 unimproved lots. When Rosegas failed to pay dues on the 19 unimproved lots, the association found Rosegas to be a “member not in good standing” and revoked Rosegas’ tenants’ gate passes, even though Rosegas was paid in full on those properties. This required Rosegas’ tenants to register each time that they entered the community. Rosegas argues that this inconvenience has resulted in their inability to retain and attract tenants, which has caused them to lose rental income and fall behind on property taxes for the undeveloped lots. The undeveloped lots are now scheduled for tax sale.

The association asserts that the Rosegas plaintiffs were properly determined to be members not in good standing pursuant to association bylaws and their rights to enter the community with a gate card were restricted as a result. The association further contends that § 5105 of the UPCA requiring that “each unit must be separately taxed and assessed,” 68 Pa.C.S.A. § 5105(b), does not retroactively apply to the policy at issue, which was adopted by resolution of the board in 1994, before the effective date the UPCA. Defendant’s brief, page 5

The UPCA gives the association the power to adopt budgets, bylaws, rules and regulations:

§5302. Power of unit owners’ association
(a) General rule. - Except as provided in subsection (b) and subject to the provisions of the declaration and the limitations of this subpart, the association, even if unincorporated, may:
(1) Adopt and amend bylaws, rules and regulations.
(2) Adopt and amend budgets for revenues, expenditures and reserves and collect assessments for common expenses from unit owners. 68 Pa. C.S.A. §5302.

The UPCA establishes the fiduciary obligation of the association board in making rules for the community in § 5303, which provides in part as follows:

§5303. Executive board members and officers
(a) Powers and fiduciary status.-(...) In the performance of their duties, the officers and - members of the executive board shall stand in a fiduciary relation to the association and shall perform their duties, including duties as members of any committee of the board upon which they may serve, in good faith; in a manner they reasonably believe to be in the best interests of the association; and with care, including reasonable inquiry, skill and diligence as a person of ordinary prudence would use under similar circumstances. 68 Pa.C.S.A. §5303.

Pennsylvania courts review the actions of the board to determine if they acted “in good faith; in a manner they reasonably believe to be in the best interests of the association; and with care, including reasonable inquiry, skill and diligence as a person of ordinary prudence would use under similar circumstances.” Burgoyne v. Pinecrest Community Ass’n, 924 A.2d 675, 683 (Pa. Super. 2007).

The Uniform Planned Community Act, 68 Pa. C.S.A. § 5105(b), requires that “each unit must be separately taxed and assessed.” Rosegas concedes that they were delinquent on taxes for the 19 undeveloped lots they own, but argues that the association cannot lawfully extend delinquent status to the 11 improved lots for which dues were current. Complaint, page 2-3, ¶¶ 5-6.

1. The UPCA Applies Retroactively to the Policy at Issue

The association’s board of directors (the “board”) adopted a resolution establishing that a member’s rights could be suspended for failure to pay assessments. Cf. answer and new matter, exhibit “A” (Article IV of bylaws attachment) (providing for revocation (versus suspension) of membership privileges (versus rights) for members not in good standing). The policy was adopted by the board at a December 10, 1994 meeting.

The resolution provides, in pertinent part:

Be it further resolved that the membership rights of any property owner whose account is past due may be suspended at any time at the discretion of the board during the period that any installment, charge or dues and maintenance and/or other levies remain unpaid;
Now therefore, be it resolved that the association will enforce said by-laws with the following:
A. Any property owner not current on his dues and maintenance and/or levies shall not rent or lease his property to others.
B. A property owner and/or his rental agent shall submit a tenant registration form and the appropriate fees to the administration office of A Pocono Country Place Owners Association, Inc. at least one week prior to the date of said rental.
C. Failure to comply with the above requirements, will result in the following:
1. Tenant will be denied access into A Pocono Country Place.
2. Property owner(s) will be fined for violation of Tenant Policy. Answer and new matter, paragraph 59, exhibit “B”, pages 3-4.

This resolution is not a bylaw as it was not properly adopted as such. See answer and new matter, exhibit “A” (Article XI of bylaws attachment)(requiring 2/3 vote of membership at annual meeting for adoption of bylaw amendment). Therefore, despite the fact that the resolution was adopted by the board before the effective date of the UPCA, since it was not adopted as a bylaw, the UPCA applies retroactively to the policy at issue. See 68 Pa.C.S.A. § 5102(b) (excepting retroactive application of UPCA § 5105 and preserving validity of then-existing bylaws, but not rules).

The resolution has become part of the published rules and regulations of the association. See defendant’s answer and new matter, exhibit “A” (rules and regulations attachment, sections 1 and 4).

2. Section 5105 does not Prevent the Association from Limiting Membership Rights of those Members not in Good Standing.

As Rosegas notes in its brief, “[t]he real issue before the court is whether or not Section 5105 of the uniform planned community act...applies to defendant.” Plaintiffs’ brief, page 4. For reasons discussed above, § 5105 applies retroactively to the policy at issue. However, § 5105 is not implicated by the policy at issue. Rosegas argues, in essence, that § 5105 of the UPCA prevents the association from limiting tenants’ rights when dues for that property are paid in full, even if the owner of the property is not “a member in good standing” under the bylaws. Section 5105 provides:

§5105. Separate titles and taxation
(b) Taxation and assessment.— If there is a unit owner other than a declarant, each unit must be separately taxed and assessed... 15 Pa.C.S.A. §5105(b) (emphasis added).

Rosegas argues that this provision requires separate assessment of each unit’s dues. Rosegas asserts that the association’s policy of treating a delinquent owner as a member not in good standing is flawed and a violation of § 5105(b) of the UPCA as to that owner’s other fully paid units. They contend that non-payment of some units’ dues should not result in the loss of membership privileges for an owner who has one or more other units paid in full. Specifically, Rosegas contends that where an owner has paid the dues owed on a particular lot, the tenant residing on that lot should receive full benefits of membership, even if the owner is not in good standing.

Rosegas also cites § 5105(a) to support its argument, which provides that:

(a.) Title.- Except as provided in subsection (b), each unit that has been created, together with the interests, benefits and burdens created by the declaration, including, without limitation, the rights to any common facilities, constitutes a separate parcel of real estate. 68 Pa. C.S.A. §5105 (a).

The association’s bylaws define a member in good standing as “a member who is up to date on all financial obligations due to the association on all units owned by that member....” Answer and new matter, exhibit “A” bylaws, article III (emphasis added).

The association bylaws provide in article XII in part as follows:

ARTICLE XII- ENFORCEMENT OF GOVERNING DOCUMENTS, ETC.
Section 1- Compliance and sanctions ...any member shall automatically lose all privileges of membership for the period that the member remains not in good standing, and all persons present in the community, at the request or the consent of that member, shall likewise lose those privileges that would otherwise apply. Answer and new matter, exhibit A, bylaws, article XII, section 1.

The association’s rules and regulations provide that:

VEHICULAR ACCESS TO PROPERTY
...(c) Authorized guests and tenants of members-in-good-standing shall be issued on their initial arrival to the community, an association “gate entrance pass” which must be displayed on dashboard at all times or such other identification device which is the associations’ (sic) authorization permitting the...tenant vehicle to enter the community for...a tenant’s term of tenancy. Answer and new matter, exhibit A. rules and regulations, section 1.

The association does not give a gate pass to tenants of a member who is not in good standing. Thus, if Rosegas paid full dues for all but one of its lots, it would not be a member in good standing under the bylaws of the community, because it would not be a member “up to date on all financial obligations due to the association.” Bylaws, article III. Rosegas questions what benefit it receives from payment of dues on its rented properties if it will not be a member in good standing due to delinquencies on its other properties.

The association looks at the other side of the coin. If the association is not able to restrict the membership rights of a delinquent owner due to the application of § 5105(b), what is to prevent Rosegas from only paying dues on one of its properties in order to obtain full membership rights? Or Rosegas could only pay dues on those properties it was able to rent. In either of these scenarios, the association would be required to provide full membership services to an owner who was seriously delinquent in the payment of dues on what could potentially be many lots.

While § 5105(b) requires the separate assessment of each unit, it does not take away the board’s power to define the rights of a member not in good standing. To hold otherwise would eliminate a substantial incentive for owners to pay their dues, and would subject the association to the risk of insolvency. The court is aware of no cases interpreting § 5105(b) of the UPCA which prohibit the association’s definition of a member in good standing. Instead, Pennsylvania courts recognize the authority of homeowners associations to largely regulate themselves. See Meadow Run and Mountain Lake Park Assoc. v. Berkel, 598 A.2d 1024, 1026 (Pa. Super. 1991) (holding community associations “are analogous to mini-governments”); see also Locust Lake Village Property Owners Ass’n v. Wengerd, 899 A.2d 1193, 1199 (Pa. Cmwlth. 2006) (adopting Superior Court’s characterization of community associations as “mini-governments”).

Accordingly, plaintiffs have not stated a viable cause of action for violation of the UPCA in count I of the complaint. Furthermore, counts II (tortious interference with contractual relations) and III (punitive damages) are based on an underlying violation of the UPCA, which has not occurred here.

Rosegas mentions in its brief that the association’s bylaws provide in article IV, section 2:

A. Member- The rights of members shall include:
1. The right of access to the unit(s) owned by that member over roads owned by the association; this right may not be revoked except by court order for proper cause.

However, no cause of action on this provision of the bylaws has been plead in the complaint, and it has not been briefed by the parties.

Judgment on the pleadings will therefore be granted as to all counts.

ORDER

And now, March 17, 2011, upon consideration of the motion for judgment on the pleadings of defendant A Pocono Country Place Property Owners Assocation, Inc., and the parties’ briefs and arguments, defendant’s motion is granted. Judgment is entered in favor of the defendant and against the plaintiffs.

      . At this stage in the development of the UPCA, Pennsylvania courts have considered § 5105(b) of the UPCA only in the context of taxation disputes. See Saw Creek Cmty. Ass’n, Inc. v. County of Pike, 866 A.2d 260 (Pa. 2005); Locust Lake Village Prop. Owners Ass’n, Inc. v. Monroe County Bd. of Assessment Appeals, 940 A.2d 591 (Pa. Cmwlth. 2008); Crystal Lake Private Park Assoc. v. Susquehanna County Bd. of Assessment Appeals, 992 A.2d 982 (Pa. Cmwlth. 2008); Hershey’s Mill Homeowners Ass’n v. Chester County, 862 A.2d 146 (Pa. Cmwlth. 2004); Lake Naomi Club, Inc. v. Monroe County Bd. of Assessment Appeals, 782 A.2d 1121(Pa. Cmwlth. 2001). Other states which have adopted the Uniform Planned Community Act have also limited considerations of section 5105(b) to tax assessment disputes. See Sun City Summerlin Cmty. Ass’n. v. State By and Through Dept. of Taxation, 944 P.2d 234 (Nev. 1997); Inn Group Assoc. v. Booth, 593 A.2d 49 (R.I. 1991).