author: MASSIAH-JACKSON, J.,

text:
    Juszczyszyn v. Taiwo

      Brian A. Wall, Jr, for plaintiff.

      Philip D. Priore, for defendants.
    June 19, 2014
   MASSIAH-JACKSON, J.,

Court Exhibit “A”

In the early morning hours of April 20, 2012, Police. Officer Christopher Juszczyszyn joined fellow officers to quell an unruly disturbance at Lid’s Lounge, located on Woodland Avenue in Philadelphia. Complaint, paragraphs 4, 8. A patron at the lounge, “was molesting/groping female customers, drinking other customers’ drinks and involved in physical confrontation with other patrons.” Complaint, paragraph 20.

Officer Juszczyszyn asserts he suffered injuries as a result of the police intervention and altercation. Complaint, paragraph 2. He initiated this civil action against the owners of the lounge. Plaintiff-Juszczyszyn asserts Counts of Negligence and Dram Shop Liability. This plaintiff “at all times relevant was acting within the course and scope of his employment as a Philadelphia Police Officer.” Complaint, paragraph 1.

After consideration of the facts and the applicable law, the preliminary objections filed by Obafemi Simeon Taiwo and CST Entertainment, Inc., the owners of Lid’s Lounge, are sustained and plaintiffs complaint is dismissed with prejudice.

A. Count I — NEGLIGENCE

Pennsylvania accepts a middle ground when considering whether owners and possessors of land may be liable for injuries sustained by police officers due to risks inherent in police work. This is not a circumstance involving a premises defect with injuries resulting from the negligence of a possessor of land.

The “Fireman’s Rule” has not been adopted in Pennsylvania. Mull v. Kersletter, 540 A.2d 951 (Pa. Superior Ct. 1988). That rule is a public policy principle which bars policemen injured in the course of their employment duties from seeking tort damages from third parties. Their recovery is remedied by workers’ compensation or other collateral sources.

Pennsylvania has not adopted Restatement of Torts (Second) §345, Persons Entering in the exercise of privilege. See, Rossino v. Kovacs, 718 A.2d 755 (Pa. 1998), commenting that to do so, then “every possessor of land in the Commonwealth, no matter how remote the location, would face civil liability every time police or firemen entered his land ....”.

In Pennsylvania, a police officer who enters a property in his official capacity and in response to a call for assistance is considered a licensee. See, e.g. Rossino v. Kovacs, supra, 718 A.2d at 757. Restatement of Torts (Second) §342 states:

“§342. Dangerous Conditions Known to Possessor
A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,
(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
(c) the licensees do not know or have reason to know of the condition and the risk involved.”

Liability does not attach, however, when the licensee knows and appreciates the risks and dangers involved. Comment a of the Restatement (Second) of Torts, §342 provides:

The words “the risk” denote not only the existence of a risk, but also its extent. Thus ‘knowledge’ of the risk involved in a particular condition implies not only that the condition is recognized as dangerous, but also that the chance of harm and the gravity of the threatened harm are appreciated.

In Holpp v. Fez, 656 A.2d 147 (Pa. Superior Ct. 1995), summary judgment was affirmed when a Police Officer who was acting in his official capacity, went into a bar to quell a disturbance. He “was aware of the potential .for violence among patrons who had been consuming alcoholic beverages, and was conscious of the attendant risks.” 656 A.2d at 149.

The Holpp Court provided an overview of the duty of care to the licensee, at 656 A.2d 149:

“A police officer who enters upon another’s land in his or her official capacity and in response to a call for assistance is generally considered a licensee. See: Mull v. Kerstetter, supra, 373 Pa. Super, at 233 n. 3, 540 A.2d at 953 n. 3. In such situations, the land owner’s duty is to warn the licensee of dangerous hidden conditions. Mull v. Kerstetter, supra, 373 Pa. Super, at 233-234, 540 A.2d at 953; Carpenter v. Penn Central Transportation Co., 269 Pa. Super. 9, 13, 409 A.2d 37, 39 (1979); Cutler v. Dushoff, 192 Pa. Super. 37, 42, 159 A.2d 524, 526 (1960). Even if a police officer enters another’s land as an invitee, moreover, the possessor of the land does not become an insurer of the officer’s safety. Cf. Winkler v. Seven Springs Farm, Inc., 240 Pa. Super. 641, 646, 359 A.2d 440, 442 (1976). The possessor’s duty is only to use reasonable care to protect his or her invitees from unknown or nonobvious dangers. Id. at 645-646, 359 A.2d at 442.”

In this litigation, officer Juszczyszyn knew he was going to join other officers at a bar where a disturbance was ongoing. He knew and recognized the chance of confrontation and altercation and propensity for violence with patrons who were intoxicated. Paragraph 20 of plaintiff’s complaint articulates the risks known to plaintiff before he walked into Lid’s Lounge:

“20. On or about April 20, 2012, plaintiff entered Lid’s Lounge in Philadelphia, Pennsylvania, after an unidentified man “flagged down” a fellow officer to report a disturbance involving an alleged patron of Lid’s Lounge following an extended period during which the alleged patron, Robert Karpeh, upon information and belief, was molesting/groping female customers, drinking other customer’s drinks and involved in physical confrontation with other patrons.”

Comment 1 of the Restatement (Second) of Torts, §342 states:

“/. Dangers known to licensee. The licensee, who enters land with no more than bare permission, is entitled to nothing more than knowledge of the conditions and dangers which he will encounter if he comes. If he is warned of the actual conditions, and the dangers involved, or if he discovers them for himself without such warning, and fully understands and appreciates the risk, he is in a position to make an intelligent choice as to whether the advantage to be gained is sufficient to justify him in incurring the risk by entering or remaining. Therefore, even though a dangerous condition is concealed and not obvious, and the possessor has given the licensee no warning, if the licensee is in fact fully aware of the condition and the risk, there is no liability to him.”

Preliminary objections to count I of plaintiff’s complaint are sustained with prejudice.

B. Count II — DRAM SHOP LIABILITY

In Holpp v. Fez, Inc., supra, the Superior Court held that civil liability does not attach to owners of a bar from the mere breach of a statutory duty to refrain from serving alcohol to visibly intoxicated persons. See, complaint, paragraph 32. Plaintiff-Juszczyszyn must also show that the statutory breach was the proximate cause and the cause in fact of the injury. 656 A.2d at 149-150. In this complaint the plaintiff did not plead either a statute or plead a requisite causal connection. Defendants’ preliminary objections to count II of the plaintiffs complaint are sustained with prejudice.

ORDER

And now, this 19th day of June, 2014, after consideration of the preliminary objections of defendants, Obafemi Simeon Taiwo and CST Entertainment, Inc., and responses thereto, it is hereby ordered that defendants’ preliminary objections are sustained, and, for the reasons set forth in court exhibit “A” attached hereto, plaintiff’s complaint is dismissed with prejudice.


source: Caselaw Access Project

author: GRAY, J.,

license: Public Domain

text:
    Greenwell v. Maiorana

      C.P. of Lycoming County,
    No. 13-01,737

      Joseph F. Orso, III, for plaintiff.

      Brian J. Bluth, for defendant.

      Robert A. Seiferth, for additional defendant.
    June 24, 2014
   GRAY, J.,

OPINION AND ORDER

Before the court is plaintiff’s motion for summary judgment based upon the terms of a j oint-tortfeasor release. After review of the argument, pleadings, motion, response and briefs, the court finds that summary judgment is not warranted. This matter is a personal injury claim arising from a fall in the parking lot of Joe’s Pizza. At issue is whether the release executed between the plaintiff and the additional defendant, Maria Maiorana, releases the original defendant from all liability. The court concludes that it does not. Accordingly, the court enters the following opinion and order.

Procedural and Factual Background

On July 10,2013 plaintiff filed a complaint against Croce Maiorana t/d/b/a Joe’s Pizza located at 967 West Third Street, Williamsport (“Joe’s Pizza”). Croce Maiorana filed preliminary objections on August 12, 2013 which were granted on August 20, 2013. Plaintiff filed an amended complaint on August 23, 2013. In that complaint, plaintiff alleged that on or about December 5, 2012, plaintiff, a business patron, fell in a storm drain in the parking lot of Joe’s Pizza while walking from her vehicle to enter Joe’s Pizza. As a result of the fall, plaintiff sustained injuries including a broken humerous that required surgery to replace her shoulder.

Plaintiff seeks medical expenses, loss of earnings, impairment of earning capacity, future loss of income and earning capacity, future medical expenses, and damages for pain and suffering. Plaintiff alleged that the storm drain falls below grade level, was unlit and not visible in the dark. Plaintiff further alleged that the original defendant failed to properly and promptly correct or warn of the condition and failed to properly light the parking lot.

On June 3, 2013, plaintiff, Salvatore (now deceased) and Marie Maiorana executed a settlement and joint tortfeasor release (Release). That Release is set forth in relevant part below.

SETTLEMENT AND JOINT TORTFEASOR RELEASE

The parties to this Joint Tortfeasor Release, with the intent of being legally bound, agree as follows:

1. Renee Greenwell, by her lawful power of attorney, and for herself, her heirs, executors, insurers, assigns, and all others taking by or through their interests (hereinafter “releasors”) in consideration of the promises, payments and other obligations as herein provided, including payment of Twenty Two Thousand Five Hundred ($22,500) Dollars exactly, receipt of which is acknowledged, does hereby remise, release and forever discharge Salvatore and Marie Maiorana, husband and wife, their heirs, and their insurers, including Tuscarora Wayne Insurance Company, (hereinafter “releasees”), from any and all actions and causes of action, suits, debts, dues, accounts, bonds, covenants, contracts, agreements, judgments, claims and demands whatsoever, in law or in equity, especially for all claims and causes of action arising out of all known and unknown injuries, losses and damages allegedly sustained by releasors and from any claims or joinder for sole liability, contribution, indemnification or otherwise as a result of, or in any way connected with the incident that occurred on December 06, 2012, at or near 963 West Third Street, Williamsport PA 17701, Lycoming County, Pennsylvania.
2. This Joint Tortfeasor Release is intended to release all claims of any nature, including claims for compensatory and punitive damages that releasors have or may have, whether known or unknown, discovered or discoverable, against the releasees.
3. It is understood and agreed that the releasors are not releasing any claims that they may have against others, but for the consideration herein recited, the releasors further agree that any recovery that releasors obtain against others shall be reduced to the extent of the judicially determined pro rata or percentage share of liability of the releasees. Should the jury return a verdict, or should there be any other such determination that releasees are not liable to any degree for releasors’ injuries, then the amount claimed by releasors against any other alleged joint tortfeasor shall not be reduced by any amount as set forth in this release.
4. Releasors further acknowledge and agree that they will not collect or attempt to collect any sums of money from others to the extent that those others would be able, under applicable law, to recover by way of indemnity, contribution, subrogation or apportionment of damages, from the releasees for damages to releasors. Upon payment of the consideration set forth in this Joint Tortfeasors’s release, any right to claim such sums of money from others shall be extinguished.
5. Itis expresslyunderstoodandagreedthatthe execution of this Joint Tortfeasor Release Agreement does not constitute any admission of liability by releasees or that Renee Greenwell was a joint tortfeasor, and that this settlement agreement is the compromise of a disputed claim entered into to avoid litigation.
6. This agreement is intended to conform to and be interpreted consistent with the provisions and requirements of the Pennsylvania “Uniform Contribution Among Joint Tortfeasors Act” of 1951, P.L. 1130, 42 Pa.C.S. § 7102 et. seq. and with the decision of the Supreme Court of Pennsylvania in Charles v. Giant Eagle Markets, 513 Pa. 474, 522 A.2d 1 (1987) regarding pro rata Joint Tortfeasor Releases.
7. By executing this Joint Tortfeasor Release, releasors intend to enter into a final settlement with the releasees herein only and ensure that releasees have no further obligation beyond those obligations set forth in this Joint Tortfeasor Release. Releasors are executing this Joint Tortfeasor Release in favor of releasees only. Releasors reserve the right to pursue any claim that they have against non-settling parties. This Joint Tortfeasor Release is not a general release ofall parties responsible for the alleged injuries of the releasors.
8. Releasors expressly waive any legal right that they may have to compel the participation of the releasees in any civil action and agree to not oppose any lawful efforts by the releasees to not participate in the trial of any civil action.
9. Releasors further agree to hold harmless and indemnify releasees from any loss or liability claimed, demands, suits, damages or compensation arising out of any claims made against them by non-settling parties or any other alleged tortfeasor in any civil action, or in any subsequent action, for contribution, subrogation, indemnity or apportionment of damages arising out of the previously described incident, and agree to execute such documents, pleadings or agreements as may be necessary to protect the interests of the releasees.
10. In making this settlement, releasors intend that this Joint Tortfeasor Release be complete and shall cover all damages and injuries attributable to the releasees', that the Joint Tortfeasors Release shall not be subject to any claims of mistake of fact; and that it expresses a full and complete settlement of liabilities claimed against releasees and denied by releasees; and regardless of the adequacy or inadequacy of the amount paid, it is intended to avoid litigation between said parties and to be a full and complete release of the releasees.
17. The parties intend that this document shall be determined to be a Joint Tortfeasor Release and indemnification agreement in conformity with Pennsylvania law, and which, inter alia, protects releasees from liability for any and all past, present or future claims by releasors arising out of the afore-described accident.
18. If any portion of this release is deemed to be ambiguous or otherwise unenforceable, it shall be construed so that releasees have no direct or indirect liability in excess of the settlement amount.
19. This Joint Tortfeasor Release shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Joint Tortfeasor Release this 3 day of June 2013.

On August 30, 2013, after the Release was executed, Croce Maiorana filed a praecipe for a writ to join his mother, Maria Maiorana, as an additional defendant. On September 25, 2013, Croce Maiorana filed an answer and new matter and filed a complaint against his mother, Maria Maiorana, the additional defendant. The Croce Maiorana averred that — if there is liability — then his mother is solely responsible for all of the damages or in the alternative his mother is jointly and severally liable. Croce Maiorana asserted that, since his father died on April 23, 2013, his mother has been the sole owner of the property where Joe’s Pizza is located. Croce Maiorana believes that his mother is solely or jointly and severally liable for any claims related to the storm drain in the parking lot. Croce Maiorana seeks full contribution and/ or indemnification with costs and expenses from Maria Maiorana. As a result of his seeking full contribution or indemnification from Maria Maiorana, Croce Maiorana seeks summary judgment on the grounds that ¶¶ 1 and 4 of the settlement and Joint Tortfeasor Release outlined above “extinguished” any right of plaintiff to recover against him and that ¶ 6 of the settlement and Joint Tortfeasor Release expressly released him from any liability because he is an heir to Salvatore Maiorana.

Conclusions of Law

Summary Judgment

1. Pursuant to Pa. R.C.P. 1035.2, the court may grant summary judgment at the close of the relevant proceedings if there is no genuine issue of material fact or if an adverse party has failed to produce evidence of facts essential to the cause of action or defense. Keystone Freight Corp. v. Stricker, 31 A.3d 967, 971 (Pa. Super. Ct. 2011).

2. A non-moving party to a summary judgment motion cannot rely on its pleadings and answers alone. Pa. R.C.P. 1035.2; 31 A.3d at 971.

3. When deciding a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party, with all doubts as to whether a genuine issue of material fact exists being decided in favor of the non-moving party. 31 A.3d at 971.

4. If a non-moving party fails to produce sufficient evidence on an issue on which the party bears the burden of proof, the moving party is entitled to summary judgment as a matter of law. Keystone, 31 A.3d at 971 (citing Young v. Pa. Dep’t of Transp., 744 A.2d 1276, 1277 (Pa. 2000)).

Contract

5. “The task of interpreting a contract is generally performed by a court rather than by a jury. The goal of that task is, of course, to ascertain the intent of the parties as manifested by the language of the written instrument.” Humberston v. Chevron U.S.A., Inc., 75 A.3d 504, 510 (Pa. Super. 2013), quoting, Maguire v. Ohio Casualty Ins. Co., 602 A.2d 893, 894 (Pa. Super. 1992).

6. “When construing agreements involving clear and unambiguous terms, this court need only examine the writing itself to give effect to the parties’ understanding. This court must construe the contract only as written and may not modify the plain meaning under the guise of interpretation. Humberston v. Chevron U.S.A., Inc., 75 A.3d 504, 510 (Pa. Super. Ct. 2013), quoting Szymanowski v. Brace, 987 A.2d 717, 722 (Pa. Super. 2009) (quoting Abbott v. Schnader, Harrison, Segal & Lewis, LLP, 805 A.2d 547, 553 (Pa. Super. 2002) (internal citations omitted)).

7. It is well-settled that clauses in a contract should not be read as independent agreements thrown together without consideration of their combined effects. Brown v. Cooke, 707 A.2d 231, 233 (Pa. Super. 1998), quoting In re Binenstock’s Trust, 190 A.2d 288 (1963). (Terms in one section of the contract, therefore, should never be interpreted in a manner which nullifies other terms in the same agreement. Id.)

8. “Under Pennsylvania law, this court is required to give words their ordinary and popular meaning. As the Supreme Court of Pennsylvania has noted, “[t]he standard for the interpretation of words is their natural meaning to the parties who have contracted at the time and place where the contract is made, considering all the circumstances surrounding it.”” G&T Conveyor Co. v. Allegheny County Airport Auth., 2011 U.S. Dist. LEXIS 123156 (W.D. Pa. Oct. 25, 2011), quoting, Urian v. Scranton Life Ins. Co., 165 A. 21, 22 (1933)

9. “[A] long line of Pennsylvania cases has held that a release covers only those matters which may be fairly said to have been within the contemplation of the parties when the release was given.” Bowman v. Sunoco, Inc., 65 A.3d 901, 909 (Pa. 2013), quoting, Restifo v. McDonald, 426 Pa. 5, 230 A.2d 199, 201 (Pa. 1967). “The courts of Pennsylvania have traditionally determined the effect of a release using the ordinary meaning of its language and interpreted the release as covering ‘only such matters as can fairly be said to have been within the contemplation of the parties when the release was given.’” Vaughn v. Didizian, 436 Pa. Super. 436, 439, 648 A.2d 38, 40 (Pa. Super. 1994), quoting, Dublin by Dublin v. Shuster, 410 Pa. Super. 1, 6-7, 598 A.2d 1296, 1298-99 (1991) (emphasis added), appeal denied, 533 Pa. 600, 617 A.2d 1274 (1992), quoting Estate of Bodnar, 472 Pa. 383, 386, 372 A.2d 746, 748 (1977). See also, 41 P.L.E. release § 32.

10. “[R]eleases are strictly construed so as not to bar the enforcement of a claim which had not accrued at the date of the execution of the release.” Vaughn v. Didizian, 436 Pa. Super. 436, 439, 648 A.2d 38, 40 (Pa. Super. 1994) (citations omitted.) (Given the language of the release, a general release which discharged all known and unknown claims arising as a result of an automobile accident did not bar medical malpractice action for negligent treatment of injuries sustained in the accident which had not been contemplated at the time of the release.)

11. “[I]t is crucial that a court interpret a release so as to discharge only those rights intended to be relinquished. The intent of the parties must be sought from a reading of the entire instrument, as well as from the surrounding conditions and circumstances.” Vaughn v. Didizian, 436 Pa. Super. 436, 439, 648 A.2d 38, 40 (Pa. Super. 1994) (citations omitted.)

Discussion

At issue is whether the Release executed between the plaintiff and the additional defendant, Maria Maiorana, releases the original defendant from all liability. The court concludes that it does not. In construing the Release by the ordinary meaning of its language within the context as to what could have fairly been within the contemplation of the parties at the time the Release was given, as this court is required to do, it is clear that the Release applies only to liability for the negligence of Salvatore and Maria Maiorana. The Release does not extinguish Croce Maiorana’s liability for his own negligence, either as an entity seeking indemnity or contribution or as an heir of Salvatore and Maria Maiorana.

The Release does not extinguish the right of plaintiff to recover against Croce Maiorana for his own negligence. ¶ 3 of the Release specified that plaintiff did not release “any claims that they [plaintiff] had against others.” It is beyond question Maria Maiorana cannot incur further financial liability for the fall on August 23, 2013 for claims of contribution and indemnification. See, ¶¶ 1, 4 and 9 of the Release. ¶ 4 specifically precludes collection from Maria Maiorana to the extent Croce Maiorana would be able to recover by indemnity or contribution from Salvatore and Maria Maiorana for damages to plaintiff. However, it does not immunize Croce Maiorana for his own negligence. In the instant case plaintiff is not seeking to collect from Croce Maiorana any amount that could be recovered from Maria Maiorana. Instead, plaintiff is seeking to establish negligence and percentage of liability of Croce Maiorana for his own negligence. Any claim for contribution or indemnity by Croce Maiorana against Maria Maiorana for the negligence of Salvatore and Maria Maiorana would reduce the recovery to plaintiff by the pro rata or percentage share of their liability pursuant to ¶ 3 of the release. In ¶ 9, plaintiff specifically holds Maria Maiorana harmless for such claims, including indemnity, by the non-settling parties.

This interpretation is consistent with ¶ 6 which expresses the intention that the Release conform to the Pennsylvania “Uniform Contribution Among Joint Tortfeasors Act” of 1951, P.L. 1130, 42 Pa.C.S. § 7102 et. seq. and with the decision of the Supreme Court of Pennsylvania in Charles v. Giant Eagle Markets, 513 Pa. 474, 522 A.2d 1 (1987) regarding pro rata Joint Tortfeasor Releases.

Similarly, the Release does not extinguish Croce Maiorana’s liability for his own negligence because as an heir to Salvatore Maiorana. The court concludes that an heir would be released from liability for the negligence of the deceased, but that the language in the Release does not support releasing heirs for their own negligence as a non-settling tortfeasor. Such is not a matter within the parties’ contemplation, in light of the conditions and circumstances surrounding its execution.

ORDER

And now, this 24th day of June, 2014, it is ordered and directed that summary judgment is denied.

      . “[T]the recovery shall be reduced to the extent of the judicially determined pro rata or percentage share of liability of the releasees.” ¶ 3 of the Release.

      . Attorney for Croce Maiorani argued that plaintiff gave up her right to have anyone involve Maria Maiorana whatsoever in a lawsuit arising from the fall on August 23, 2013. Instead, this Court concludes that the Release releases Maria Maiorana from any further liability and contemplates that claims may be brought against others but that Maria Maiorana is not required to participate. ¶8 of the Release specifically provides that plaintiff cannot force Maria Maiorana to participate at trial and also limits the extent of her liability to the settlement. This is commonly known as the “empty chair” in litigation.


author: BARATTA, J.,

text:
    Siegfried v. Pa. Department of Transportation

      C.P. of Northampton County,
    No. C-48-CV-2009-7279

      Gary S. Figore, for plaintiff.

      James J. Dodd-o, John W. Stahl, Patrick J. Hughes, Kevin R. Gardner and Frank A. Baker, for defendants.
    June 24, 2014
   BARATTA, J.,

ORDER OF COURT

And now, this 24th day of June, 2014, upon consideration of the defendants’ motions for summary judgment and"the plaintiff, Colleen Siegfried, individually and as administratrix of the estate of Steven W. Siegfried’s, responses thereto, it is hereby ordered that said motions are disposed of as follows:

1. Defendant Commonwealth of Pennsylvania Department of Transportation’s motion for summary judgment is granted;
2. Additional defendant Bracalente Construction, Inc.’s motion joining in motion and separate motion for Summary Judgment are granted;
3. Defendant James Rotherham, executor of the estate of Albert P. Rotherham’s, motion for summary judgment is denied; and
4. Defendant JP Morgan Chase Bank, NA and The Bank of New York Mellon f/k/a The Bank of New York as successor to Trustee JP Morgan Chase as Indenture Trustee for ABFS Mortgage Loan Trust 2003-2 (improperly pleaded as “JP Morgan Chase Bank, individually and as Indenture Trustee)’s motion for summary judgment is granted.

STATEMENT OF REASONS

Facts and Procedural History

On August 28, 2009, the plaintiff, Colleen Siegfried, individually and as administratrix of the estate of Steven W. Siegfried (the “decedent”), filed a complaint in negligence. Thereafter, on October 1, 2009, the plaintiff filed an amended complaint. The factual predicate for this dispute is as follows:

On July 14, 2007, the decedent operated a motorcycle traveling south on State Route 611 through Forks Township in Northampton County, Pennsylvania. Although the circumstances preceding the one-vehicle accident are disputed, it is undisputed that the decedent’s motorcycle ended up hitting a wooden utility pole near “My Little Gypsy Rose,” a restaurant/bar at 1600 North Delaware Drive (the “Property”). As a result of this collision, the decedent suffered severe injuries which ultimately resulted in his death on July 28,2008, for which the plaintiff seeks money damages. The defendants (Commonwealth of PennsylvaniaDepartment of Transportation (“PennDOT”), James Rotherham, Executor of the estate of Albert P. Rotherham (“Rotherham”), and/or JP Morgan Chase Bank, individually and as indenture trustee (“JPMC”)) are alleged to have had either an ownership interest in the property or are alleged to have a legal duty of care related to that property.

The parties dispute the chain of events that led to the decedent’s accident. The plaintiff alleges that the defendants created or allowed a dangerous condition to exist in where the motorcycle’s tires were allegedly “trapped and guided along the interface of the paved portion of the roadway which ultimately resulted in the motorcycle to be guided or thrown into the aforementioned utility pole.” Amended complaint ¶ 16. The defendants contest both plaintiff’s description of the accident and the existence of an alleged duty of care toward the decedent during the night in question. Each defendant also disputes the allegations of liability for the condition of Route 611 and the right-of-way. Finally, the defendants who are alleged to have an ownership interest in the property adjacent to the highway onto which the motorcycle allegedly drove before hitting the utility pole dispute the chain of title as alleged by plaintiff.

On November 18, 2009, defendant PennDOT filed a joinder complaint naming Bracalente Construction, Inc. (“Bracalente”) as a defendant. In its joinder complaint, PennDOT avers that it had entered into a contract with Bracalente to repair and resurface miles of Route 611, which includes the portion of highway at issue in this case. See joinder complaint ¶ 4. As such, PennDOT argues, if there was a dangerous condition of Route 611, Bracalente’s negligence created or caused it, and is therefore obligated to indemnify and hold harmless PennDOT from any claims. Id. at ¶¶ 5-6.

On September 6, 2013, PennDOT filed its motion for summary judgment and its supporting brief. On September 16.2013, Rotherham filed a motion for summary judgment and a supporting memorandum of law. On September 16, 2013, JPMC also filed its motion for summary judgment and a supporting memorandum of law. Finally, on October 29.2013, Bracalente filed its motion joining in the motion for summary judgment of defendant Commonwealth of Pennsylvania Department of Transportation and Separate motion for summary judgment.

On October 16,2013, the plaintiff filed her reply to the motions for summary judgment of defendants Rotherham and JPMC. In her brief in response, filed the same day, the plaintiff stated that she had no expert reports against and no objection to the dismissal of defendant PennDOT and additional defendant Bracalente. Neither Rotherham nor JPMC responded to the motions for summary judgment of PennDOT and Bracalente.

On October 16, 2013, Rotherham filed an answer to JPMC’s motion for summary judgment, disagreeing chiefly with JPMC’s characterizations of certain exhibits and Rotherham’s relationship with Best, and denying ownership of the property on July 14,2007. Also on October 16, 2013, JPMC filed a memorandum of law, in which it opposed the plaintiff and Rotherham’s characterizations of JPMC’s involvement with the property at the time of the accident. On November 6, 2013, Rotherham filed a reply brief to the plaintiff’s response, again addressing the property ownership issue and arguing that certain evidence as to an issue of material fact was inadmissible as a matter of law.

Finally, on March 25, 2014, the plaintiff filed a supplement to plaintiff’s brief in response to defendants’ motions for summary judgment. With regard to JPMC, the plaintiff asserts that JPMC should be held “voluntarily legally responsible” for the property under the consent order, invoking the doctrines of waiver and collateral estoppel. As for Rotherham, the plaintiff argues that he purchased the property on February 9,2007, and operated it as a “joint venture” with his tenant, taking action that demonstrates his possession and control over the property.

This matter was placed on the March 25,2014, argument list and argument was heard.

Legal Standard

Pennsylvania Rule of Civil Procedure 1035.2 states:

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

Further, under Pa.R.C.P. Rule 1035.3(a), the nonmoving party may not rest upon mere allegations or denials of the pleadings but must file a response within thirty (30) days after service of the motion. In other words, the nonmoving party has a clear and affirmative duty to respond to a motion for summary judgment. Harber Phila. Ctr. City Office Ltd. v. LPCI Ltd. P’ship, 764 A.2d 1100, 1104 (Pa. Super. 2000). Also, Pa.R.C.P. Rule 1035.3(d) specifically provides that “[sjummary judgment may be entered against a party who does not respond.” Id.

Summary judgment may be granted only in the clearest of cases where the record shows that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. P.J.S. v. Pa. State Ethics Comm’n, 723 A.2d 174, 176 (Pa. 1999) (citing Marks v. Tasman, 589 A.2d 205 (Pa. 1991)). Summary judgment is only appropriate in the clearest of cases, because an order favorable to the moving party will prematurely end an action. Scopel v. Donegal Mut. Ins. Co., 698 A.2d 602, 605 (Pa. Super. 1997) (citations omitted). The moving party has the burden of proving the non-existence of any genuine issue of material fact. O’Rourke v. Pa. Dep’t of Corr., 730 A.2d 1039, 1041 (Pa. Commw. Ct. 1999) (citing Kee v. Turnpike Comm’n, 722 A.2d 1123 (Pa. Commw. Ct. 1998)). “Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which it bears the burden of proof...establishes the entitlement of the moving party to judgment as a matter of law.” Murphy v. Duquesne Univ. of the Holy Ghost, 777 A.2d 418, 429 (Pa. 2001) (quoting Young v. PennDOT, 744 A.2d 1276, 1277 (Pa. 2000)) (omission in original) (internal quotation marks omitted). The record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Ertel v. Patriot-News Co., 674 A.2A 1038, 1041 (Pa. 1996) (citation omitted).

Under the Nanty-Glo Rule, summary judgment may not be granted where the moving party relies exclusively on oral testimony, either through testimonial affidavits or deposition testimony to establish the absence of a genuine issue of material fact. Nanty-Glo Borough v. American Surety Co., 163 A.523, 524 (Pa. 1932); see also Penn Center House, Inc. v. Hoffman, 553 A.2d 900, 903 (Pa. 1989); White v. Owens Corning Fiberglas, Corp., 668 A.2d 136, 142 (Pa. Super. 1995); Garcia v. Savage, 586 A.2d 1375, 1377-78 (Pa. Super. 1991).

A trial court’s entry of summary judgment will only be reversed in instances where there was an abuse of discretion or an error of law by the trial court. Moses v. T.N.T Red Star Express, 725 A.2d 792, 795 (Pa. Super. 1999) (citing Sebelin v. Yamaha Motor Corp., 705 A.2d 904, 906 (Pa. Super. 1998)).

Discussion

I. Defendant PennDOT’s Motion for Summary Judgment

Defendant PennDot argues that there are no genuine issues of material fact such that it should be granted judgment as a matter of law under the concept of sovereign immunity found in 42 Pa.C.S.A. § 8521 et seq. Specifically, PennDOT is protected from negligence actions by sovereign immunity, unless a cause of action falls within one of the exceptions set forth in 42 Pa.C.S.A. § 8522(b). The following exception exists under the Sovereign Immunity Act with regard to highways:

(4) Commonwealth real estate, highways and sidewalks. — A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of a Commonwealth agency and Commonwealth-owned real property leased by a Commonwealth agency to private persons, and highways under the jurisdiction of a Commonwealth agency, except conditions described in paragraph (5).

42 Pa.C.S.A. § 8522(b)(4).

“A plaintiff seeking to prevail in a negligence action against the Commonwealth must demonstrate that [the] claim is one that, if proven, would satisfy the common law requirements for a negligence claim and that one of the exceptions to sovereign immunity applies.” Lambert v. Katz, 8 A.3d 409, 417 (Pa. Commw. Ct. 2010). Under the common law, the plaintiff must establish that: “(1) the defendant owed a duty of care to the plaintiff; (2) the duty was breached; (3) the breach resulted in the plaintiff’s injury; and (4) the plaintiff suffered an actual loss or damages.” Bubba v. Dep’t of Transp., 61 A.3d 313, 316 (Pa. Commw. Ct. 2013) (citing Brown v. Dep’t of Transp., 11 A.3d 1054, 1056 (Pa. Commw. Ct. 2011)). The question of whether the defendant owed a duty of care to the plaintiff is “purely a question of law.” Id.

Here, the plaintiff contends in her amended complaint that the accident occurred due to a dangerous condition in and along Route 611. See amended complaint ¶¶ 14-16. She contends, furthermore, that the dangerous condition existed “along the area where the paved portion of the roadway interfaced with the berm and/or perimeter of the traveled portion of the roadway within the PennDOT right-of-way and/or the overlap upon the property including the areas of ingress and egress for access to the property and the surrounding areas.” Id. at ¶ 14. Under Pennsylvania case law, however, “the shoulder is not intended for vehicular traffic and, accordingly, [Penn]DOT owe[s] no duty to design, construct and maintain the shoulder drop-off.” Bubba, 61 A.2d at 317; see also Lambert, 801 A.2d at 413-14.

We find that there are no issues of material fact regarding the responsibility of PennDOT for the alleged dangerous conditions of the roadway. No expert reports have been submitted by either the plaintiff or co-defendants which have identified any dangerous condition of the roadway that may have contributed to the accident at incident. Further, as PennDOT owed no duty to the decedent to design, construct or maintain the shoulder, it cannot therefore be found to have breached such a duty. We find as a matter of law that PennDOT did not owe a duty of care to the plaintiff/decedent.

We also note that none of the above-named parties have responded to the PennDOT’s motion for summary judgment, despite their clear and affirmative duty to do so. We find that neither the plaintiff nor defendants Rotherham or JPMC have responded to PennDOT’s motion for summary judgment, as is required under Pennsylvania law. See Harber Phila. Ctr. City Office Ltd., 164 A.2d at 1104; see also Pa.R.C.P. Rule 1035.3(d). Finally, plaintiff has noted in her brief in response that she has no expert reports against and no objection to the dismissal of defendant PennDOT. See plaintiff’s brief in response to defendants’ motions for summary judgment at 5.

Therefore, defendant PennDOT’s motion for summary judgment is granted.

II. Defendant Bracalente’s Motions for Summary Judgment

Under Pennsylvania case law, summary judgment in favor of a defendant who has asserted contribution or indemnifications against an additional defendant requires summary judgment in favor of the additional defendant, as the claims are deemed moot. See Guy M. Cooper, Inc. v. East Penn Sch. Distr., 903 A.2d 608, 619-20 (Pa. Commw. Ct. 2006). In the instant case, we grant summary judgment in favor of PennDOT for the reasons stated above. As such, we find that PennDOT’s claims against Additional defendant Bracalente are deemed moot.

Further, we find that defendants Rotherham and JPMC have failed to file a response to defendant Bracalente’s separate motion for summary judgment, as is required under Pennsylvania case law and the Pennsylvania Rules of Civil Procedure. See Harber Phila. Ctr. City Office Ltd., 764 A.2d at 1104; see also Pa.R.C.P. Rule 1035.3(d). The plaintiff has also noted in her brief in response that she has no expert reports against and no objection to the dismissal of additional defendant Bracalente. See plaintiff’s brief in response at 5. As summary judgment may be entered against a party that fails to respond, we grant Bracalente’s separate motion for summary judgment.

Additional defendant Bracalente’s motions for summary judgment are granted.

III. Rotherham and JPMC Motions for Summary Judgment

A. Ownership and Possession of the Property

Defendants Rotherham and JPMC both deny ownership of the property at the time of decedent’s accident and both further argue that they did not owe a duty to the decedent at the time of the accident.

By way of historical background, the record establishes that due to a default, JPMC instituted a foreclosure action against Susan Best for the failure to repay a 1999 mortgage. JPMC brought the foreclosure action on behalf of the Note Holders and Note Insurers of ABF S Mortgage Loan Trust 1999-3 (the “JPMC/1999-3 Trust”). Best was the title owner of the property. The foreclosure action was successful. The property was sold at a sheriff’s sale to defendant Rotherham on February 9, 2007. The deed transferring the property to Rotherham was duly recorded on March 16, 2007.

On December 14,2006, JPMC, as the Trustee of Best’s second mortgage on the Property, executed in 2003 (the “2003-2 Trust”), commenced a second foreclosure action against Best. On March 2,2007, the 2003-2 Trust served a foreclosure complaint on Best. Apparently, it was shortly after filing this second complaint that JPMC learned that it — JPMC — had already foreclosed upon the Property on behalf of the 1999-3 Trust and caused it to be sold to Rotherdam at the February sheriff’s sale, resulting in the March 16, 2007 transfer. On behalf of the 2003-2 Trust, JPMC filed a petition to intervene and set aside the sheriff’s sale of the property to Rotherham on April 1, 2007, alleging improper notice of their own forced sale in February.

On April 19, 2007, Rotherham filed a counter-petition to intervene. On May 4,2007, the court granted intervenor status to both the 2003-2 Trust and Rotherham.

The accident occurred on July 14, 2007.

On October 17, 2007, the JPMC/1999-3 Trust, the 2003-2 Trust, and Rotherham entered into a settlement agreement and release. Under this agreement: (1) the JPMC/1999-3 trust retained the proceeds from the sheriff’s sale; (2) the 2003-2 trust agreed to pay Rotherham $227,600.00; (3) the property was conveyed to JPMC on behalf of the 2003-2 rrust; (4) both Rotherham and any tenant of the property were required to vacate the property by November 16, 2007; and (5) Rotherham joined in the agreement.

The consent order confirming the terms of the settlement agreement was signed by the Honorable RR Kimberly McFadden on October 25, 2003. The order decreed that the 2003-2 trust would be deemed the purchaser of the property at the sheriff’s sale as of February 9, 2007 and that Rotherham’s deed would be stricken from the record. On November 28, 2007, a correction deed was recorded, retroactive to the date of the sheriff’s sale, February 9, 2007. This correction deed named Susan G. Best as the “grantor” and JP Morgan Chase Bank as the “grantee,” indicating a direct change in ownership.

The correction deed, filed subsequent to the consent order, sets forth the legal ownership of the property at the time of the accident. Under the consent order, filed October 26, 2007, “petitioner, JP Morgan Chase Bank, as trustee under the Pooling and Servicing Agreement dated as of October 1, 2003, ABFS Mortgage Loan Trust 2003-2, [] shall be deemed the purchaser of the premises known as 1600 North Delaware Drive, Easton, Pennsylvania, sold at sheriff’s sale on February 9, 2007.” Motion for summary judgment of defendant James Rotherham, as executor of the estate of Albert P. Rotherham, exhibit “C” — consent order. Further, the prior sheriff’s deed, which indicated Rotherham’s ownership of the property, was stricken from record. Id. Finally, the petitioner, JPMC, as the bona fide holder of the mortgage, was not required to pay transfer taxes on the property. Id.

Under Dadona v. Thorp, 965 A.2d 1244 (Pa. Super. 2000), we have the authority to construct and interpret deeds. In the instant case, the correction deed, recorded November 28, 2007, lists the “grantor” as Susan G. Best and the “grantee” as JP Morgan Chase Bank. Further, the addendum to realty transfer tax statement of value cites that “date of sale” as February 9,2007. The recorded correction deed effectively indicates a transfer of ownership of the property directly from Best to JPMC on February 9,2007, with no mention of Rotherham.

Next, we examine whether Rotherham had possession and control over the property at the time of the accident such that he would owe a duty of care to the decedent. In order for a plaintiff to prevail in a negligence action, she must establish that: “(1) the defendant owed a duty of care to the plaintiff; (2) that duty was breached; (3) the breach resulted in the plaintiff’s injury; and (4) the plaintiff suffered an actual loss or damages.” Merlini ex rel. Merlini v. Gallitzin Water Auth., 980 A.2d 502, 506 (Pa. 2009). Under Pennsylvania common law, the question of whether a duty exists in purely a question of law. See Brown v. Com. Dep’t of Transp., 11 A.3d 1054, 1056 (Pa. Commw. Ct. 2011).

In opposing the motion for summary judgment, the plaintiff relies on Section 368 of the Restatement (Second) of Torts, among other premises liability theories, for her theory of liability, which states that:

A possessor of land who creates or permits to remain thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact while traveling with reasonable care upon the highway, is subject to liability for physical harm thereby caused to persons who
(a) are traveling on the highway, or
(b) foreseeably deviate from it in the ordinary course of travel.

Restatement (Second) of Torts § 368 (1965).

Section 328E of the Restatement (Second) of Torts sets forth the definition of a “possessor of land”:

A possessor of land is (a) a person who is in occupation of the land with the intent to control it or (b) a person 1 who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it; or (c) a person who is entitled to immediate occupation of land, if no other person is in possession under clauses (a) or (b).

Id. § 328E.

Whether a party is a “possessor of land” is a determination to be made by the trier of fact. See Blackman v. Fed. Realty Inv. Trust, 664 A.2d 139, 142 (Pa. Super. 1995). Further, “[wjhere the alleged ‘possessor of land’ has filed a motion for summary judgment and asserted that the non-moving party has not produced evidence to establish that the moving party is a ‘possessor of land,’ the non-moving party must identify evidence establishing that fact in its response to the motion.” Walinsky v. St. Nicholas Ukrainian Catholic Church, 740 A.2d 318, 320 n. 4 (Pa. Commw. Ct. 1999) (citing Pa.RC.P. No. 1035.3(a)(2)).

In Pennsylvania, further, “[a] party who possesses but does not own the land may be liable to a plaintiff for harm caused to the plaintiff by a defect on the land.” Davis v. City of Philadelphia, 987 A.2d 1274, 1279 (Pa. Commw. Ct. 2010) (citing Blackman v. Fed. Realty Inv. Trust, 4664 A.2d 139, 142 (Pa. Super. 1995)). Further, liability follows possession and control, regardless of ownership or legal title. See Bagley v. City of Philadelphia, 25 A.2d 579, 582 (Pa. Super. 1942). “Thus, duty does not establish possession; rather, possession establishes a duty.” Leichter v. E. Realty Co., 516 A.2d 1247, 1251 (Pa. Super. 1986) (Kelly, J. concurring). In other words, “occupation and control (physical possession), rather than title (the legal right to possession), determine possession under Section 328E.” Id.

Here, defendant Rotherham asserted that plaintiff failed to produce evidence that Rotherham possessed the property at the time of the accident. Inresponse, the plaintiff identified the following as evidence of possession: (1) On July 14, 2007, Rotherham was the record owner of the property by the sheriff’s deed recorded March 16, 2007; (2) thereafter, Rotherham permitted Best to remain on the property and continue the operation of My Little Gypsy Rose Restaurant and Banquet Hall while he attempted to find a purchaser; (2) Rotherham took an interest in the property by filing UCC financial statements and taking responsibility for the restaurant’s liquor license and contents; (3) Rotherham undertook repairs to the property, in that he filed an application with a builder for a building permit after an errant automobile struck the building in October of 2007; and (4) Rotherham agreed, along with Best, to give up possession of the property on or before noon on November 16, 2007, pursuant to the settlement agreement and consent order. See plaintiff’s brief in response at 13-14. From this evidence, plaintiff argues that a jury could find that defendant Rotherham possessed the property at the time of the accident and owed a duty of care to the decedent.

Unfortunately for Rotherham, the settlement agreement and the consent order do not have the effect of a time machine, which would have cancelled or wiped away the status of the parties on July 14, 2007, when the decedent had his accident. The conditions of the property and status of the ownership of the property at that moment are frozen in time. At the moment of the accident, Rotherham was the legal owner and exercised possession of the property.

The legal impact of the settlement agreement and the consent order does not shield Rotherham from answering to the decedent for the condition of his property on July 14, 2007. However, the documents may have some relevance related to indemnity or contribution between JPMC and Rotherham.

We find that a genuine issue of material fact exists regarding possession of the property, which precludes us from granting Rotherham’s motion for summary judgment. Therefore, defendant Rotherham’s motion for summary judgment is denied.

With regard to JPMC’s motion for summary judgment, in support of its motion, JPMC asserts that it is entitled to judgment as a matter of law because it did not own or possess the property at the time of the accident, July 15, 2007, despite the correction deed’s retroactive grant of ownership. Therefore, JPMC argues, it did not owe the decedent a duty of care. Instead, it claims, Rotherham and/or Best had possession or control over the property at the time of the accident. JPMC also argues that it cannot be subject to liability without such possession and control over the property.

JPMC further asserts that it was Rotherham who took action with the property indicating possession and control, including conducting repairs on the property, actively, trying to sell the property, filing a UCC statement, and agreeing with Best that she would continue to reside on the property during this time period. Finally, JPMC contends that it acted merely as a mortgagee of the property and that it did not exercise sufficient control over the property to find it owed a duty of care to the decedent.

In response, the plaintiff contends that JPMC is “voluntarily legally responsible” for the property at the time of the accident because JPMC signed the consent order, under which it accepted ownership of the property at the time of the accident. In arguing such, the plaintiff invokes the doctrines of waiver and collateral estoppel.

Rotherham argues in response that JPMC voluntarily ■ accepted ownership in and possession of the property at the time of the accident by signing the settlement agreement and the consent order. Rotherham also argues that JPMC acted as if it were the owner throughout the period at issue because JPMC conducted periodic inspections of the property. Accordingly, Rotherham argues that JPMC, by accepting all rights and responsibilities of ownership in the settlement agreement and consent order, as well as through the nature of its possession and control of the property by its periodic inspections, owed the decedent the duty of care.

As set forth above, mere ownership does not create a duty; such a duty is instead predicated upon possession and control of the property in question. See Bagley, 25 A.2d at 582.

We turn to the record in determining whether JPMC possessed the property at the time of the accident, such that JPMC could be found liable. Both the plaintiff and Rotherham point to JPMC’s periodic inspections of the property as evidence of possession thereof. JPMC undertook such inspections of the property under its role as the trustee for the mortgagees.

A mortgagee can be found to be in possession of property, establishing liability. See Sansotta v. City of Pittsburgh, 199 A.164, 165 (Pa. 1938). However, “[mjerely to say that a mortgagee is in possession of property is not enough to fix him with responsibility for its condition and to impose upon him a duty to repair.” Id. Generally, the owner or the tenant in possession is responsible for the property’s condition and the duty to repair. See id. In order to establish liability on the party of the mortgagee, one must establish that the mortgagee is in actual control or possession. See id. The mere receipt of rentals is insufficient. See id.

In order to show that a mortgagee “exercised acts of dominion over the property, which any owner of a similar property would do under the circumstances,” requires an examination of the facts. Zisman v. City of Dusqueue, 18 A.2d 95, 97 (Pa. Super. 1941). Indicators of possession include: “inspection of the premises, either personally or through an agent, making of repairs, arranging leases, collection of rents, eviction of tenants, payment of all expenses of maintenance, etc.” Id.

With regard to inspections, the record indicates that JPMC sent inspectors to the property on a monthly basis from April 30, 2004, until December 21, 2007. See J.P. Morgan Corporate Designee Transcript, at 22:24-24:2; Transcript of deposition testimony of Peter D. Katsikas, J.P. Morgan Chase Bank, through ECM’s corporate designee, at 9:15-11:20; Chase/EMC Inspection Reports. According to JPMC’s corporate designee, the property preservation unit organized these inspections “to see if the house...is properly maintained and there is also the broker pricing opinions which also give the value but also give us information on the property as well.” J.P. Morgan Corporate Designee Transcript, at 23:7-10. Apparently, such inspections are standard in the case of default on the contract. See id. at 24:5-10.

Here, JPMC did not make repairs, arrange leases, collect rents, or pay all expenses maintenance. Although under the settlement agreement Rotherham and Best were required to leave the premises on November 16, 2007, it is not alleged that JPMC possessed the requisite authority over the Property at the time of the accident to evict any tenants from it.

Further, the terms of the settlement agreement & release relevant to the determination of possession are as follows:

4. Intervenor [Rotherham] and any tenant or occupant of the premises shall vacate the premises on or before 12:00 noon on November 16, 2007. All items of personal property on the premises at the time of sheriff’s sale and/or remaining on the premises as of 12:00 noon November 16,2007 will be considered to be abandoned by said intervenor and intervenor shall not assert any right, title or interest therein. Intervenor, for himself, and on behalf of any tenant of his, agrees that petitioner [JPMC] is entitled to access and possession of the premises as of 12:00 noon on November 16, 2007.
Petitioner may immediately list the premises for sale and shall have full access to inspect and show the premises so long as the times and dates are reasonable and do not interfere with the normal or ongoing operations or events scheduled by the present tenant or occupant.

Settlement agreement & release (Oct. 17,2007) (emphasis added).

The terms set forth above reveal that JPMC did not have access and possession of the property before that date, November 16, 2007.

We note that JPMC did conduct monthly inspections of the property. However, we find that these inspections do not rise to the level of possession of the property, as JPMC did not use these inspections as a tool to exercise control over the property by making repairs or evicting tenants for improper maintenance, and it commenced such inspections before any of the parties allege that it assumed possession and control over the property. No other evidence has been set forth by the plaintiff in response to the motion for summary judgment to show that JPMC possessed the property.

With regard to the settlement agreement and consent order, these documents suggest that on October 25, 2007, JPMC retroactively purchased Rotherman’s interest in the property as of the date of the sheriff’s sale on February 9, 2007. The real estate transaction of October 25, 2007, occurred after the accident and the rise of the negligence claim related to the condition of the property. There is no factual dispute as to the calendar events.

The settlement agreement and consent order are silent as to the events of July 14, 2007. Regardless, we can find no legal support for the concept that one entity can be retroactively substituted for another tortfeasor, without the agreement of the plaintiff. Here, the plaintiff did not sign or agree that the settlement agreement resolved the issue of liability for the property on July 14, 2007. Thus, we cannot allow the defendants’ private agreement to determine the issues of liability and/or duty of care.

There remains an open issue regarding the possible legal effect of the settlement agreement and consent order related to contribution and indemnity between Rotherham and JPMC. However, the resolution of that issue is for another day.

As JPMC was neither the possessor of the property nor the owner of the property at the time of the accident, it did not owe a duty to the decedent. No genuine issues of material fact exist with regard to the causes of action against JPMC. JPMC is entitled to judgment as a matter of law. Therefore, defendant JPMC’s motion for summary judgment is granted.

B. Negligence Per Se Claim

Any reasonable review of plaintiff’s complaint indicates that plaintiff has not set forth a negligence per se claim in her amended complaint. In fact, plaintiff acknowledges that she has not alleged negligence per se as a cause of action. Apparently, this concern has been given life by plaintiff’s expert, who has volunteered in his expert report that there may have been a violation of a statutory duty to maintain the property. Rotherham and JPMC argue that the plaintiff’s negligence per se argument fails as a matter of law, because the motor vehicle accident at issue was not contemplated by the regulation cited to in the plaintiff’s expert report.

Ultimately, this is not an issue for summary judgment, but rather an evidentiary issue to be raised before the trial judge. Defendants’ motions for summary judgment with regard to the phantom negligence per se claim is non-justiciable.

      . Issues related to the accident are that the decedent did not have a valid license to operate a motorcycle; that the decedent was allegedly under the influence of alcohol at the time of the accident; and, that while the decedent was hospitalized with significant cognitive injury from July 14,2007, until his death on July 28,2007, in response to a question asked by the administratrix, decedent managed to whisper “deer” (apparently not “dear”). The administratrix has interpreted the alleged “deer” proffer as an assertion that the accident was caused by a phantom deer on the roadway, which caused the decedent to leave the roadway to avoid impact.

      . Apparently, no one has been offended by the apparent conflict in which JPMC, on behalf the 2003-2 Trust, attacked the sheriff’s sale brought by JPMC, on behalf of the 1993-3 trust, alleging improper notice.


author: KEOGH,

text:
    Obermayer Rebmann Maxwell & Hippell LLP v. Colaizzo

      Kellie M. MacCready, Gary M. Samms and Rigel C. Farr, for plaintiff.

      Clifford E. Haines and Danielle M Weiss, for defendant.
    June 27, 2014
   KEOGH,

I. PROCEDURAL/FACTUAL HISTORY

Plaintiff filed a complaint on September 29, 2012. The complaint included claims of breach of contract, unjust enrichment, quantum meruit and action on account against the defendant for fees, $375,251.14, without late charges or interest, owed to the plaintiff in connection with the plaintiff’s representation of the defendant in two legal actions involving the attempted sale/development of property owned by the defendant.

The defendant had been acquainted with Jerry Kline, one of the members of the plaintiff-firm, through their work together on a local board that represented builders and contractors in Philadelphia. Defendant approached Mr. Kline for the plaintiff" to represent the defendant’ with problems he was encountering in the development of property known as the “Queen’s Walk”, which was an 18 unit development worth approximately $500,000 in 1999. (N.T. 09/24/13, pp. 69-73, 76-77).

Defendant owned the subject property and sought to develop the land into either condominiums or town homes. In 2003, he went to Michael Gamick and Richard Kowit for financing. There was a sales agreement for the property and the limited liability partnership of Queens Walk was formed. Gamick and Kowit were responsible for financing the project, including obtaining the requisite permits, contractors, etc. Defendant was to receive 20% of monies received from the units once developed. (N.T. 09/24/13, pp. 125-126, 126-131). Without his consent, defendant’s partners attempted to sell the property to Gumbo Brothers. Defendant refused to agree to the sale. Thereafter, litigation was instituted as referenced in footnote one of the opinion.

As a result, defendant sought plaintiff’s representation. A letter of engagement/fee agreement was signed on May 5, 2005. The re: clause states “Sale of Real Estate to Richard Kowit, Michael Gamick and Queen’s Walk, L.R” The first paragraph states that “We are pleased that you have requested this firm to represent you respecting the sale of 912-920 South 5th Street and 509-29 Montrose Street to Messrs. Kowit and Gamick.” The letter further states that “We will include with each bill a detailed statement of the time spent and the services rendered by each attorney and/or paralegal who rendered services during the prior month”.

The defendant agreed that the plaintiff would be paid on an hourly fee as opposed to a contingency fee basis; specifically agreeing to the hourly rate of $325 for any work performed by Mr. Kline and $350 an hour for Parry Warner’s work performed. (N.T. 09/24/13, pp. 25-28, 29-34, 84; 69-73, 76-77, 132-134). Both underlying actions were somewhat involved and lengthy with numerous pre and post-trial motions filed, briefed and argued. For example, in the Montrose action a nine day jury trial tried over the course of several months resulted; and in the Gumbo action an appeal was taken regarding defendant’s cross-claim. (N.T. 09/24/13, pp. 283-88, 89-91, 93-100, 115-120, 134-149, 165-168).

Defendant was billed per the agreement from May of 2005 through approximately March of 2009. Defendant stopped making payments in June of 2007. In October of 2011, plaintiff was permitted to withdraw as counsel in the Gumbo action; non-payment of fees was the basis for the withdrawal. (N.T. 09/24/13, pp. 109-112). Defendant had paid $271,000 to plaintiff for services rendered. The outstanding balance owed was $375,251.14. Id. at 38-39, 158.

Defendant received plaintiff’s bills. After he stopped paying, he continued to receive statements and advised the plaintiff that he was having trouble paying the bills but that he still required the plaintiff’s representation in the litigation related to the property. (N.T. 09/24/13, pp. 41-47, 193-194).

Defendant contends that he was advised by Warren Parry that his legal bills would be capped at $150,000. (N.T. 09/24/13,pp. 91-92). Defendant never challenged the quality of the work performed by plaintiff, and other than voicing his concerns regarding the cost of the litigations to Mr. Parry, never challenged the service or charges to anyone else at the firm. There is no documentary evidence regarding any oral modification to the fee agreement. (N.T. 09/24/13, pp. 105-108, 190-191, 195-200).

Toward the end of the plaintiff’s representation, defendant requested plaintiff to represent him in another legal matter. Plaintiff refused as a result of the unpaid bills in the Queen’s Walk litigation. (N.T. 09/24/13, pp. 109-112).

Defendant sought a non-suit at the conclusion of the plaintiff’s case. Plaintiff moved for a directed verdict once the plaintiff rested. Both motions were denied by the court. (N.T. 09/24/13, pp. 183-187,209).

The quantum merit and accounts stated claims were dismissed by the court. Following the court’s charge and theparties’ closing arguments, the jury retired to deliberate. The jury found that there was a valid contract between the parties, the defendant had breached the contract by failing to pay legal fees and costs and that the plaintiff suffered damages as a result of the breach. The jury awarded the plaintiff $350,000 in damages. (N.T. 09/26/13, 45-47).

On October 3, 2013, defendant filed a motion for post-trial relief seeking both judgment notwithstanding the verdict and a new trial. Oral argument was heard and on January 10, 2014, this court denied both of defendant’s post-trial requests.

Plaintiff filed a praecipe to enter judgment on the verdict on January 15, 2014. A notice of appeal was filed on February 11, 2014. This court directed the filing of a 1925(b) statement of errors complained of on appeal on February 25, 2014. Defendant filed a statement on March 17, 2014.

II. DISCUSSION

Defendant contends that the trial court committed reversible error when it failed to grant either his request for judgment notwithstanding the verdict or a request for a new trial. Regarding the motion for a JNOV, defendant alleges that prejudicial error of law and/or an abuse of discretion occurred since plaintiff had failed to demonstrate that its billing practices were fair and reasonable, that it entered into the agreement with defendant in good faith and that the services were the subject of the billing statements were actually performed as described in the firm’s billing statements. Defendant further asserts that the jury’s verdict goes against the weight of evidence presented at trial and that said verdict was contrary to applicable law.

For essentially identical reasons, defendant alleges that the court committed prejudicial error of law and/or abused its discretion in denying his request for a new trial. Again, he raises the lack of evidence and failure to instruct on plaintiff’s purported duty of good faith and fair dealing with relation to the billing. .

With regard to a request for a JNOV, the following is instructive:

In reviewing a trial court’s decision whether or not to grant judgment in favor of one of the parties, we must “consider the evidence, together with all favorable inferences drawn therefrom, in a light most favorable to the verdict winner.” Walker v. Grand Central Sanitation, Inc., 430 Pa. Super. 236, 634 A.2d 237, 240 (Pa. Super. 1993). “Our Standard of Review when considering motions for a directed verdict and judgment notwithstanding the verdict are identical.” Brown v. Philadelphia College of Osteopathic Medicine, 2000 PA Super 262, 760 A.2d 863, 868 (Pa. Super. 2000). We will reverse a trial court’s grant or denial of a judgment notwithstanding the verdict only when we find an abuse of discretion or an error of law that controlled the outcome of the case. Mitchell v. Moore, 1999 PA Super 77, 729 A.2d 1200, 1203 (Pa. Super. 1999). Further, “the Standard of Review for an appellate court is the same as that for a trial court.” Ferry v. Fisher, 709 A.2d 399, 402 (Pa. Super. 1998).
There are two bases upon which a judgment N.O. V. can be entered: one, the movant is entitled to judgment as a matter of law and/or two, the evidence is such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. With the first, the court reviews the record and concludes that even with all factual inferences decided adverse to the movant the law nonetheless requires a verdict in his favor, whereas with the second the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.
“The general rule for a grant of a new trial on the basis that it is against the weight of the evidence allows the granting of a new trial only when the jury’s verdict is contrary to the evidence as to shock one’s sense of justice and a new trial is necessary to rectify this situation.”
Lanning v. W., 803 A.2d 753, 756, 765 (Pa. Super. 2002).

Before the court was a breach of contract action. Instructive on the issues is Pittsburgh Const. Co. v. Griffith, 834 A.2d 572 (Pa. Super. 2003). In Griffith, plaintiff sued a homeowner for breach of contract after homeowner blocked two payments for construction work done to their home, claiming the work was substandard. The trial court found that the homeowners had breached the contract and the homeowners filed post-trial motions seeking JNOV on the jury’s breach of contract award to plaintiff. It was noted that to support a breach of contract claim, plaintiff must establish 1) existence of a contract, including the essential terms, 2) breach of duty imposed by the contract and 3) resultant damages.

Id. at 580.

This court finds that the evidence presented at trial was sufficient to support the verdict. The evidence included the fact that defendant entered into a contract for legal services, the May 2005 fee agreement/letter of engagement recited the terms of the billing arrangement between the parties, defendant was aware of the hourly fee to be charged by the two main firm representatives working on the property development and resultant litigation, plaintiff in fact provided the legal services to defendant, defendant accepted the legal services, the services were detailed on the billing statements sent to defendant on a regular basis and that defendant paid some, though not all, of the bills incurred.

In the same vein of defendant’s contention that there was a requirement that the plaintiff establish that its billing practices were performed in good faith and with fair dealing, the defendant contends that the court erred in not instructing the jury as to such a requirement.

The purpose of a jury charge is to clarify the legal principles at issue. General Equip. Mfrs. v. Westfield Ins. Co., 430 Pa. Super. 526, 635 A.2d 173, 184 (1993). A jury instruction will be upheld if it accurately reflects the law and is sufficient to guide the jury in its deliberations. Von der Heide v. Department of Transportation, 553 Pa. 120, 718 A.2d 286, 289 (1998). A trial judge is bound to charge the jury only on the law applicable to the factual parameters of a particular case and it may not instruct the jury on inapplicable legal issues. Schaefer v. Stewartstown Dev. Co., 436 Pa. Super. 354, 647 A.2d 945, 947(1994).”

Cruz v. N.E.Hosp., 801 A.2d 602, 611 (Pa. Super. 2002).

There is no such requirement that in a breach of contract action a plaintiff must establish that the fee agreed to be paid was “fair and reasonable” before a breach can be established. Moreover, defendant has at no time offered any legal basis whether by statute, case law or otherwise that such a requirement was applicable to a contract action in general or this matter specifically. This is not a situation where the reasonableness of attorney’s fees has to be established by the moving party, as for example with bad faith claims pursuant to 42 Pa. C.S.A. 8371. A review of this court’s charge reveals that the jury was properly instructed on the elements necessary for plaintiff to establish a breach of contract. (N.T. 09/26/13, pp. 10-15).

The jury heard defendant’s testimony that Mr. Parry had orally agreed to pap plaintiff’s legal fees at $150,000. They also learned that there was no written modification to the fee agreement and that no one else in the firm was aware of any modification to the parties’ agreement. It was within the jury’s province to believe some, all or none of the testimony presented; they obviously did not credit defendant’s assertion that there had been an alteration or modification to the agreement.

III. CONCLUSION

The record fails to establish that no two reasonable minds could disagree that the outcome should have been rendered in favor of the defendant or that a verdict for the defendant was mandated. Likewise, the jury’s verdict in this instance was not so contrary to the evidence as to shock one’s sense of justice.

Accordingly, there was no basis to either enter a judgment notwithstanding the verdict or a new trial on defendant’s behalf. Therefore, this court seeks to have its January 10, 2014 order denying defendant’s request for such relief affirmed.

      . The two underlying actions are docketed at Montrose Investments, LLC d/b/a Queen’s Walk, L. P. v. Michael Colaizzo; 0510-03407 and Gumbo Brothers, LLC v. Queens Walk, LP v. Michael Colaizzo; 0606-01645

      . Warren Parry died from complications of ALS during the course of the underlying litigation. (N.T. 09/24/13,pp. 161-164, 195).

      . Following the announcement of the verdict, the jury was polled. Seven of the eight jurors agreed with the verdict. (N.T. 09/26/13, pp. 46-47)

      . The court vacated the 2/25/14 order since the caption contained a typographical error not properly identifying the defendant. Thereafter, the court re-issued the 1925(b) directive in an order dated March 10, 2014.

      . Defendant alleged that the trial court erred in permitting irrelevant testimony regarding the potential value of the Queens Walk project. The court has reviewed the record several times and has found no reference to such alleged testimony.


author: HERRON, J.,

text:
    In re Estate of Williams

      C.P. of Philadelphia County, O.C.
    No. 928 AP of 2013
    April 21, 2014
   HERRON, J.,

Introduction

The appeal filed by the grandchildren of Jonelle Williams, deceased, to the November 6, 2012 decree of the Register of Wills that admitted an undated will to probate raises the issue of whether an undated will is invalid where no later or alternative will is presented for review. For the reasons set forth below, the petition is denied without prejudice until such time as a later will has been located and presented for review.

Background

Sarah Williams, Keturah Williams andlymaan Williams, three grandchildren of decedent Jonelle Williams, filed a petition to invalidate an undated will that had been probated, to compel production of decedent’s last will dated June 3, 1991 and to vacate the order of the Register of Wills that appointed Mary A. Shell, as administratrix, c.t.a. A hearing was held on this petition, where none of the parties were represented by counsel despite the subtle legal issues raised.

The undated will that was admitted to probate by the register’s decree dated November 6, 2012 divides Ms. Williams’s estate equally among her children: Samuel Thomas, Joseph Williams, David Williams, Joanne Williams and Mary Shell except for property located at 6102 Oxford Street. Joseph Williams, the petitioners’ father, is deceased. The undated will names the eldest child of Jonelle Williams, who was Samuel Thomas, as executor. According to petitioners, however, Samuel Thomas predeceased his mother who died on March 13, 2010 and could not assume the responsibilities as executor. Instead, Letters of Administration C.T.A. were granted to Mary Shell, the decedent’s daughter.

The petitioners attached a copy of the undated will to their petition, but did not attach a purported later will. Rather they claim generally that there is a “later” 1991 will based on the petition for grant of letters of administration that was filed with the Register of Wills by Mary Shell. This Register of Wills petition, however, contains conflicting information as to the identity of the will — or wills — presented for probate. Page 1 has a typed entry for a “6/3/1991” will but there is also a handwritten notation for an “undated will.” Page 2 lists only the following handwritten notation concerning an “undated will”:

And Now, 6th November, 2012, in consideration of the foregoing Petition, satisfactory proof having been presented before me, IT IS DECREED that Letters Administration c.t.a. are hereby granted to Mary Shell, Administratrix-CTA in the above estate and (if applicable) that the instrument(s) dated UNDATED WILL (i.e. handwritten) described in the petition be admitted to probate and filed of record as the last Will (and Codicil(s)) of Decedent.

On March 11, 2014, a hearing was held before this court on the petition. Unfortunately, all the parties were unrepresented by counsel. Because the legal issues raised by the petition are complex and subtle, this court carefully advised those present on the advantages of being represented by counsel. Throughout the hearing, Mary Shell testified credibly that she had no knowledge of any 1991 will and that the only Will she had seen was the undated will that had been admitted to probate.

Petitioners argue broadly that the undated will is invalid because the 1991 will noted in the register’s petition for grant of probate is an after discovered will. More specifically, petitioners assert: “petitioners believe that Mrs. Shell fraudulently obtained administratrix, c.t.a., of the decedent’s estate by probating the undated Will which had been superseded and nullified by the decedent’s last Will believed to be dated June 3, 1991.” 7/29/13 Petition, ¶10. Where a petition claims that a more recent will has been discovered after the probate of an earlier will, the role of the Orphans’ Court is very limited. It is well established that a party who asserts that she has found a later executed will or codicil has the burden of proving that such will was properly executed and that it was executed more recently than the will she is challenging. Snyder Will, 29 Fid. Rep.2d 187, 188-89 (Franklin Cty. O.C. 2008). See generally Lohr Estate, 35 Pa.D. & C.2d 311 (Adams Cty. O.C. 1964). If the petitioner sustains this limited burden of proof, the Orphans’ Court is then required to remand the matter back to the Register to determine whether this after discovered will should be admitted to probate:

Our responsibility, at this time, is therefore a limited one. Our function is to ascertain whether the notations in question appear, prima facie, to be testamentary in character. If they are not, there is obviously no merit to the appeal. If, on the other hand, we conclude that they are testamentary, we cannot direct that they be admitted to probate. We can only open the decree of probate to enable the register to receive and act upon the questioned writings.
Steiger Estate, 16 Pa. D. & C. 2d 79, 83 (Phila. O.C. 1958) (Klein, P.J.)

Under this narrow test, the petitioners have the initial burden of presenting at the very least the later will, codicil or writing that they contend should be admitted to probate. In this case, they did not come close to meeting their burden. The only testamentary document that the petitioners present in support of their petition is the undated will that was admitted to probate. They surmise that there was a later will based on petition for grant of letters that was filed by Mary Shell with the register of wills that indicates there was a will dated June 6, 1991 as well as the undated will that was admitted to probate. During the hearing, however, Mr. Shell testified convincingly that she had no knowledge of any 1991 will. There is therefore nothing of record to support the petitioners’ dual claim that such a will existed and that it was later than the undated will admitted to probate. For these reasons, the petition shall be dismissed without prejudice until such time as the petitioners can present for review a later will or codicil.

In making this ruling, it is important to emphasize that the undated will would not be invalid per se merely because it is undated. On the contrary, there are numerous cases that hold that a will is valid even if undated so long as it evidences a testamentary intent and is signed by the “testator.” See generally In re Hengen’s Estate, 337 Pa. 547, 12 A.2d 119 (Pa. 1940)(undated codicil properly admitted to probate); Dietz Estate, 14 Pa. D. & C. 4th 392, 397-98 (York Cty. 1991)(undated codicil is valid testamentary document); Crooks Estate, 12 Pa. D. & C. 2d 570 (Delaware Cty. O.C. 1957)(dicta noted that undated will was the valid, later will); Erney Estate, 85 Pa. D & C 349 (York Cty. O.C. 1953)(undated will is deemed valid). The undated will in this case is clearly testamentary in bequeathing Jonelle Williams’s property to her children as heirs. It is also signed by her.

As a practical matter, the real dispute in this case focuses on the distribution of the assets in the decedent’s estate. At the hearing, for instance, Ms. Shell noted that she had been given conflicting legal opinions as to whether the decedent’s grandchildren were heirs. The language of the will admitted to probate is arguably ambiguous as to whether estate assets should be distributed to the children of Ms. Williams’s deceased named heirs. While the will states that Ms. Williams bequeathed all of her estate to “Samuel H. Thomas, Joseph M. Williams, David Williams Jr., Joanne L. Williams and Mary A. Shell,” it provides in paragraph third:

If any of my named heirs should predecease me then ' their share shall go the surviving heirs.

That thorny issue or dispute as to distribution can only be resolved after the executrix files an account of the assets in the estate, and a statement of how she proposes to distribute them. Once the account is filed, the petitioners will have an opportunity to file objections. If necessary, a • hearing could then be scheduled to resolve this complex issues. In light of the complexity of those issues, all parties are urged to obtain the assistance of counsel.

Conclusion

The petition to invalidate the undated will is denied without prejudice to file a petition that attaches a later will or codicil for review. It is further ordered that Mary Shaw, as administratrix, is ordered to formally file an account of her administration of the estate of Jonelle Williams with the office of the clerk of Orphans’ Court, Room 415, City Hall, Philadelphia, within 30 days of the simultaneously issued decree.

      . The undated will provides that this property is not to be sold so long as Joanne Williams remains single and resides there. If Joanne marries or moves out, then it may be sold and the named heirs would share equally in the proceeds.

      . There is also precedent that imposes a time limitation under 20 Pa.C.S. §3138 for opening the probate record to admit a later discovered will or codicil. See Estate of Peles, 739 A.2d 1071 (Pa. Super 1999); LaBar Will, 28 Fid. Rep. 2d 268 (Monroe Cty. O.C. 2008). But see Snyder Will, 29 Fid. Rep. 2d 187 (Franklin Cty. O.C. 2008)(time limitations of 20 Pa.C.S. §3138 apply only to register of wills and “does not diminish the power of a court to hear a timely appeal concerning a later will or codicil” under 20 Pa.C.S. § 908).

      . 7/29/13 Petition, ¶6.

      . 7/29/13 Petition, ex. (Undated will).