author: ROGERS, J,

text:
    PennDOT v. Gallagher

      C.P. of Philadelphia County,
    March Term, 2009,
    no. 1218.

      Marc A. Werlinsky, for Commonwealth.

      Jonathan Krinick, for defendant.
    January 20, 2010
   ROGERS, J,

On March 11,2008, the appellee, James Gallagher, was officially notified by the Bureau of Driver Licensing of the Commonwealth of Pennsylvania that it was suspending his privilege to operate a motor vehicle for one year. This action was taken pursuant to a conviction and sentencing of Mr. Gallagher in Philadelphia Municipal Court by the Honorable William A. Meehan Jr.

He was found guilty on June 12, 2007 of a violation of section 3802(a)(1) of the Motor Vehicle Code, the “general impairment” driving under the influence (DUI) offense, after a “stipulated trial.” On August 15, 2007, he was sentenced to three to six days incarceration, a concurrent term of six months reporting probation, mandatory fines, court costs, lab fees, and attendance at safe driving school.

Mr. Gallagher appeared before this court on July 17, 2009, to appeal the one-year operating privilege suspension from appellant. At that time, appellant took the position that the one-year suspension was mandatory because of the nature of the sentence that appellee had received on August 15, 2007. Mr. Gallagher contested that argument, and this court essentially “remanded” the criminal portion of this case back to Philadelphia Municipal Court to give Judge Meehan the opportunity to modify the judgment of sentence.

Judge Meehan entered an amended sentencing order, dated August 31, 2009, in which he repeated the terms of his original sentence. In addition, the Philadelphia Municipal Court directed the court clerk to amend the sentencing documents to document the fact that Mr. Gallagher was, in fact, being sentenced pursuant to section 3804(a)(1) of the Motor Vehicle Code. The first “DL-21” sentencing form that was completed by the Philadelphia Municipal Court on August 15 and submitted to appellee did not indicate that Mr. Gallagher was sentenced pursuant to section 3804(a)(1).

At the second appeal hearing on October 16, 2009, appellant offered the amended sentencing order and amended sentencing form into evidence. Appellant continued to argue before this court that Mr. Gallagher was not, in fact, sentenced pursuant to section 3804(a)(1), and that he was subject to the mandatory one-year suspension provisions of section 3804(e). It was agreed by all parties in the instant case, and in the criminal case, that Mr. Gallagher had no prior DUI offenses, arrests, or convictions.

The provisions of 75 Pa.C.S. §3802(a)(l) spell out the elements of “general impairment” as they relate to driving under the influence of alcohol or a controlled substance.

“(a) General Impairment.—

“(1) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.

“(2) An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual’s blood or breath is at least 0.08 percent but less than 0.10 percent within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.”

In his Philadelphia Municipal Court criminal trial, the appellant was adjudged guilty of section 3802(a)(1).

Because this portion of the Vehicle Code does not contain a section that addresses the penalty to be applied for a violation of section 3802(a)(1), one must look to section 3804 to determine the applicable sentence.

“(a) General Impairment. — Except as set forth in subsection (b) or (c), an individual who violates section 3802(a) (relating to driving under influence of alcohol or controlled substance) shall be sentenced as follows:

“(1) For a first offense, to:

“(i) undergo a mandatory minimum term of six months probation;

“(ii) pay a fine of $300;

“(iii) attend an alcohol highway safety school approved by the department; and

“(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 (relating to drug and alcohol assessments) and 3815 (relating to mandatory sentencing).

“(2) For a second offense, to:

“(i) undergo imprisonment for not less than five days;

“(ii) pay a fine of not less than $300 nor more than $2,500;

“(iii) attend an alcohol highway safety school approved by the department; and

“(iv) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

“(3) For a third or subsequent offense, to:

“(i) undergo imprisonment of not less than ten days;

“(ii) pay a fine of not less than $500 nor more than $5,000; and

“(iii) comply with all drug and alcohol treatment requirements imposed under sections 3814 and 3815.

(e) Suspension of Operating Privileges Upon Conviction.—

“(1) The department shall suspend the operating privilege of an individual under paragraph (2) upon receiving a certified record of the individual’s conviction of or an adjudication of delinquency for:

“(i) an offense under section 3802; or

“(ii) an offense which is substantially similar to an offense enumerated in section 3802 reported to the department under article III of the compact in section 1581 (relating to driver’s license compact).”

Though it is apparent that Mr. Gallagher received the exact sentence mandated in section 3804(a)(1), appellant contends that is not the case because he also was initially given a jail sentence of three to six days. Appellant reasons that the jail time placed appellee within the mandatory suspension edict of section 3804(e), because he was an “individual under paragraph (2)” or essentially a second-offense violator.

The problem with this argument is that the judgment of sentence in this case was amended by the trial judge, and his sentencing documents were modified to make it clear that it was always the court’s intention to sentence appellee within the purview of section 3804(a)(1). Moreover, even without the amendments and modifications, there is nothing in the statutory provisions of section 3804(a)(1) that suggest that the addition of jail time automatically transforms a defendant from a first-time offender to a second-time offender.

The appellant cites the case of Glidden v. PennDOT, 962 A.2d 9 (Pa. Commw. 2008) in support of his argument that the criminal sentence “mandates the imposition of the one-year suspension.” However, the Glidden holding is inapposite, and its facts are markedly distinguishable from the instant case. Though it is true that the court clerk certified that Mr. Glidden was not sentenced pursuant to 75 Pa.C.S. §3804(a)(l), and the trial court ruled that the mandatory one-year suspension applied, there were substantially different issues in that case.

“On appeal, licensee argues the trial court erred by basing its opinion, in part, on documents from licensee’s underlying criminal conviction that were never submitted as part of the record. Next, licensee contends the trial court erred as a matter of law by finding the criminal court sentenced him pursuant to section 3804(b) of the Vehicle Code, 75 Pa.C.S. §3804(b) (penalties for DUI resulting in accidents) and section 3804(c) of the Vehicle Code, 75 Pa. C.S. §3804(c) (penalties for DUI coupled with a refusal of chemical testing) rather than pursuant to 75 Pa.C.S. §3804(a)(l) (penalties for first-time DUI offenders). Finally, licensee argues the trial court erred by finding the severity of his punishment established the criminal court did not sentence him as a first-time DUI offender.” Id at 11. (emphasis added) (footnote omitted)

The Glidden court looked at the sentence that the defendant received and came to the conclusion that there was a real question to whether he was actually a first-time offender.

“Here, licensee admitted to receiving a sentence of 30 days in prison. Given the statutory scheme discussed above, this minimum penalty was so far beyond the minimum penalty for even a third-time general impairment DUI offender as to support the trial court’s inference that licensee was not sentenced under the provisions for first-time offenders. Further, licensee’s minimum penalty is more consistent with first- or second-time offenders for DUI offenses involving injury. Also, his minimum penalty is more consistent with first-time offenders for DUI offenses involving a refusal of testing. In short, a comparison of the statutory scheme with the sentencing plan for licensee supports the respected trial court’s decision.” Id at 13.

There is nothing in this case to suggest that there is any reason to believe that Mr. Gallagher was anything but a first-time offender, and there is no evidence that injury, test refusal, or any other aggravating factor was present in the sentencing determination. Moreover, the sentence of three to six days in the instant case was markedly less than the thirty-day sentence in Glidden and thus does not raise the same questions or issues.

The scope of appellate review in a license suspension case is limited to determining whether the necessary findings are supported by competent evidence of record and whether the trial court committed an error of law or abused its discretion in making its decision. Todd v. PennDOT, 555 Pa. 193, 723 A.2d 655 (1999). Whether reasonable grounds exist is a question of law reviewable by the court on a case-by-case basis. PennDOT v. Malizio, 152 Pa. Commw. 57, 618 A.2d 1091 (1992).

Under these circumstances, this court did nor err or abuse its discretion by holding that Mr. Gallagher was a first-time offender who was not subject to the mandatory one-year suspension.

CONCLUSION

Based upon all of the foregoing facts and applicable law, the appellee’s driver’s license suspension was properly rescinded, and appellant’s appeal should be denied.


source: Caselaw Access Project

author: SPATARO, J.,

license: Public Domain

text:
    Sabatini v. Weber-Harris Ford 4M Inc.

      C.P. of Crawford County,
    no. D.S.B. 2009-749.

      Shawn P. McClure, for plaintiff.

      Gery T Nietupski, for defendant.
    February 12, 2010
   SPATARO, J.,

Plaintiff, Matt C. Sabatini, filed an action in the District Court of Shawnee County, Kansas, seeking to recover the sum of $1,801.01 in damages in connection with a 2002 Dodge Ram pickup truck that he purchased from the defendant, Weber-Harris Ford Lincoln Mercury Inc. Weber-Harris is an automobile dealership, located on Baldwin Street in Meadville, Pennsylvania. Sabatini is a resident of Topeka, Kansas. Sabatini successfully prosecuted his suit against Weber-Harris to judgment and then filed a praecipe to file foreign judgment in the amount of $ 1,600 with the prothonotary of Crawford County on August 3, 2009. Weber-Harris filed a motion to vacate the judgment, contending that judgment should be stricken because the District Court of Shawnee County, Kansas did not have personal jurisdiction over Weber-Harris.

The origin of this dispute goes back to August 2007, when Sabatini learned of the sale of a 2002 Dodge Ram pickup truck on Weber-Harris’ web site. He contacted Weber-Harris to express his interest in the vehicle. Weber-Harris later mailed a contract of sale to Sabatini, which set forth the terms of the transaction. The vehicle was to be sold “as is,” although Weber-Harris did warrant that the vehicle had no previous or existing collision repairs, nor any existing damage or interior bums. Sabatini signed the sales agreement and then sent it back to Weber-Harris. Upon receipt of the purchase price, the vehicle was available for delivery. Sabatini “contracted with a carrier to pick up the vehicle in Pennsylvania and deliver it to Kansas.” (Plaintiff’s reply to defendant’s motion to vacate, averments 6 and 7.)

Weber-Harris asserts that its limited amount of involvement within the State of Kansas is insufficient to vest the District Court of Shawnee County with jurisdiction and that the judgment entered in the Kansas Court is unenforceable in Pennsylvania. Sabatini asserts that Weber-Harris submitted itself to the jurisdiction of the State of Kansas by advertising the sale of the pick-up truck on the Internet, knowing that citizens of Kansas were within the pool of potential buyers; furthermore, that sending the contract to Sabatini demonstrated the intention of Weber-Harris to submit to personal jurisdiction in the courts of Kansas.

We begin by examining the pertinent provisions of the Uniform Enforcement of Foreign Judgments Act. 42 Pa.C.S. §4306. This Act is designed to provide compliance with the “constitutional mandate that each state give full faith and credit to judgments transferred from sister states” and permits a “simplistic and systematic .transfer of money judgments from one state’s court to another.” Commonwealth Capital Funding Inc. v. Franklin Square Hospital, 423 Pa. Super. 149, 153, 620 A.2d 1154, 1156 (1993). (footnote omitted)

The Uniform Enforcement of Foreign Judgments Act requires the filing of foreign judgments properly entered in a foreign sister state. Such judgments shall be subject to the “same procedures, defenses and proceedings for reopening, vacating, or staying as a judgment of any court of common pleas of this Commonwealth.” 42 Pa.C.S. §4306(b). The validity of the judgment in this Commonwealth, and enforcement of the judgment, requires that the sister state had proper jurisdiction. Commonwealth Capital Funding Inc., supra, see also, RECO Equipment Inc. v. John T. Subrick Contracting Inc., 780 A.2d 684 (Pa. Super. 2001), appeal denied, 567 Pa. 763, 790 A.2d 1018 (2001). We are, therefore, required to examine Kansas law to determine whether the courts of Kansas had jurisdiction over Weber-Harris.

In Kansas, a two-step analysis is required to determine whether there is specific, personal jurisdiction over a nonresident;

(1) Whether the long arm statute in Kansas includes the conduct of the nonresident, noting that the statute is to be liberally construed. Volt Delta Resources Inc. v. Devine, 241 Kan. 775, 740 P.2d 1089 (1987).

(2) If so, whether the assertion of jurisdiction comports with due process requirements. Slawson v. Hair, 716 F. Supp. 1373, 1375 (D.Kan.1989). Satisfaction of due process depends on the quality and nature of the activities of the defendant, determined on a case by case basis. Woodring v. Hall, 200 Kan. 597, 602, 438 P.2d 135, 141 (1968).

The pertinent provisions of the Kansas long arm statute read as follows:

“(b) Submitting to jurisdiction-process. Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits the person and, if an individual, the individual’s personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of these acts:

“(7) The transaction of any business within this state” Kan. Stat. Ann. 60-308(b)(l) and (b)(2).

Kansas courts have defined what is meant by the transaction of business:

“ ‘Business’ is transacted within the state when an individual is within or enters this state in person or by agent and, through dealing with another within the state, effectuates or attempts to effectuate a purpose to improve his economic conditions and satisfy his desires. Woodring v. Hall, 200 Kan. at 607, 438 P.2d 135. The transaction of business exists when the nonresident purposefully does some act or consummates some transaction in the forum state. White v. Goldthwaite, 204 Kan. 83, 88, 460 v. Devine, 241 Kan. 775, 778, 740 P.2d 1089, 1092 (1987).

The record is minimal as to whether Weber-Harris engaged in a “transaction” within the State of Kansas. The only document submitted by the parties by stipulation is the first page of the parties’ contract. One cannot glean from this document the full extent of the terms and conditions, as it is apparent that there is at least one other page missing. Moreover, while there are various signatures on the document, it is impossible to determine when they were placed on the document. Presumably, Weber-Harris mailed the document to Sabatini, without any signatures by Weber-Harris personnel. Most likely, Sabatini then affixed his signature where indicted and mailed the document back to Weber-Harris, along with the down payment. At that point, someone from Weber-Harris must have communicated with Sabatini to let Sabatini know that the truck was available for delivery. Sabatini then arranged for a contractor to go to Pennsylvania and pick up the vehicle. “An offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances.” (13 Pa.C.S. § 2206(a)(1), Kan. Stat. Ann. 84-2-206.) Weber-Harris invited acceptance by mailing the contract to Sabatini. The offer was accepted by Sabatini who mailed back the signed contract, along with the down payment to Weber-Harris. A good argument can be made that such activity does not rise to the level of transacting business within the State of Kansas and that the contract did not come into existence until Weber-Harris received back the signed contract and down payment in Pennsylvania; however, because the Kansas long arm statute is to be liberally construed, we find that this action by Weber-Harris amounted to the transaction of business in Kansas.

Our inquiry does not end with such a finding. The next step requires a due process analysis.

A nonresident must have had certain “minimum contacts” with the forum state in order to satisfy the requirements of due process and these contacts must be such as to not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). The nonresident must have fair warning of being subject to jurisdiction and the activity engaged in must be “purposefully directed at residents of the forum” such that the litigation “arises from or relates to those activities.” Burger King v. Rudzewicz, 471 U.S. 462, 472 (1984). The notion of forseeability is a second feature of the minimum contacts analysis, meaning that the nonresident should reasonably be expected to be haled into court in the forum state to adjudicate a dispute. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). One looks to whether the nonresident party acted with a purpose of enjoying the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Burger King, 471 U.S. at 475. Physical contact by the nonresident is not required. Pedi-Bares Inc. v. P & C Food Markets Inc., 567 F.2d 933 (10th Cir. 1977); Rosedale State Bank & Trust Co. v. Stringer, 2 Kan. App. 2d 331, 333, 579 P.2d 158 (1978).

Sabatini and Weber-Harris were brought together by an Internet advertisement. As such, the case of Zippo Mfg. Co. v. Zippo Dot Com. Inc., 925 F. Supp. 1119 (W.D. Pa. 1997) is instructive in our due process analysis. The holding in Zippo recommends the application of a sliding scale to determine whether there are sufficient contacts to invoke jurisdiction.

“This sliding scale is consistent with well-developed personal jurisdiction principles. At one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper. E.g., CompuServe Inc. v. Patterson, 89 F.3d 1257 (6th Cir. 1996). At the opposite end are situations where a defendant has simply posted information on an Internet web site which is accessible to users in foreign jurisdictions. A passive web site that does little more than make information available to those who are interested in it is not grounds for the exercise personal jurisdiction. E.g, Bensusan Restaurant Corp. v. King, 937 F. Supp. 295 (S.D.N.Y. 1996). The middle ground is occupied by interactive web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the web site. E.g, Maritz Inc. v. Cybergold Inc., 947 F. Supp. 1328 (E.D. Mo. 1996).” Zippo, 952 F. Supp. at 1124.

Applying these principles, this court finds that the District Court of Shawnee County did not have jurisdiction to enter judgment against Weber-Harris. Weber-Harris merely posted the vehicles it had available for sale on its web site, responded to an inquiry from Sabatini and sent him a contract. No agents or employees of Weber-Harris ever entered upon Kansas soil. Sabatini sent an agent to Pennsylvania to pick up the vehicle. There was no evidence that Weber-Harris conducted any form of advertising that targeted citizens of the State of Kansas, nor is there any evidence that Weber-Harris ever availed itself of the privileges of doing business in the State of Kansas. There is no evidence that Weber-Harris expected to be haled into a Kansas court for the resolution of any disputes. This appears to be an isolated sale of one vehicle to a citizen of Kansas. Utilizing the “sliding scale” approach recommended in Zippo, Weber-Harris was little more than a passive participant that “has simply posted information on an Internet web site which is accessible to users in foreign jurisdictions.” Id.

Because this court finds that the District Court of Shawnee County, Kansas did not have jurisdiction under Kansas law to enter judgment against Weber-Harris, we shall order that the judgment entered by the prothonotary be vacated.

ORDER

And now, February 12, 2010, the court grants the defendant’s motion to vacate judgment. The judgment entered by the prothonotary upon praecipe of the plaintiff, Matt C. Sabatini, is hereby vacated and stricken from the record.

      . The defendant in the caption is identified as Weber-Harris Ford 4M Inc., when no such entity exists. The parties have agreed that the proper name of the defendant is Weber-Harris Ford — Lincoln Mercury Inc.


author: LIEBERMAN, J.,

text:
    Commonwealth v. Perez

      C.P. of Berks County,
    no. 3304-08.

      Melissa J. Noyes, assistant district attorney, for the Commonwealth.

      Christopher M. Brett, assistant public defender, for defendant.
    November 18, 2009
   LIEBERMAN, J.,

On May 27, 2008, John Thomas was in his home at 318 North Fifth Street in the City of Reading, Berks County, Pennsylvania, when he noticed a truck idling outside. A passenger seated in the truck was throwing pieces of food and trash onto the sidewalk in front of Mr. Thomas’ house. Mr. Thomas asked the man to stop littering, and after receiving no response, went outside with his camera to photograph the vehicle. Mr. Thomas took one picture of the side of the truck, and then walked around to take a picture of the license plate. At this point, the defendant got out of the driver’s seat and demanded that Mr. Thomas hand over his camera. When Mr. Thomas failed to comply, the defendant retrieved a black baseball bat from behind the driver’s seat, held it aggressively over his shoulder, and kept repeating, “Give me the camera.” After Mr. Thomas tossed his camera over a fence and onto his front porch, the defendant struck him on his left knee with the bat. When asked to describe the defendant’s swing, Mr. Thomas stated, “He was looking for a home run. He was definitely looking to injure me, I believe.” (N.T. trial at 8-15.)

Following a June 5, 2009 bench trial, the defendant was convicted of aggravated assault and related offenses. He was subsequently sentenced to term of 21 months to seven years of incarceration in a state correctional facility. On August 25,2009, the defendant was granted leave to file post-sentence motions nunc pro tunc. Those motions were denied on August 27, 2009. Then, on or about September 10,2009, the defendant filed his notice of appeal to the Pennsylvania Superior Court. On September 14,2009, this court directed the defendant to file a concise statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). The defendant complied with this court’s order on September 30, 2009. In his appeal, the defendant alleges the following errors:

“(1) The guilty verdict for aggravated assault was contrary to the weight of the evidence presented at trial in that the testimony given failed to show the required level of serious bodily injury for the offense;

“(2) The Commonwealth offered insufficient evidence to sustain a guilty verdict for aggravated assault in that it failed to show beyond a reasonable doubt that defendant attempted to cause serious bodily harm or serious bodily harm resulted from defendant’s actions. (Concise statement of errors complained of on appeal, 9/30/09.)

WEIGHT OF THE EVIDENCE

The defendant first argues that the verdict was contrary to the weight of the evidence because “the evidence failed to show the required level of serious bodily injury for the offense.” We initially note that the Commonwealth was not required to prove serious bodily injury under 18 Pa.C.S. §2702(a)(4). Due to the fact the defendant used a deadly weapon, the standard under this particular subsection of the aggravated assault statute is simply “bodily injury.” That being said, “a motion for new trial on [the] grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict, but contends, nevertheless, that the verdict is against the weight of the evidence.” Commonwealth v. Davis, 799 A.2d 860, 865 (Pa. Super. 2002). A true “weight of the evidence” claim therefore alleges that the verdict is a product of speculation or conjecture. Commonwealth v. Dougherty, 451 Pa. Super. 248, 259, 679 A.2d 779, 785 (1996). “Such a claim requires anew trial only when the verdict is so contrary to the evidence as to shock one’s sense of justice.” Id.

It is the exclusive role of the finder of fact to determine the proper weight to assign to the evidence. The finder of fact is free to believe all, part, or none of the evidence, and is also responsible for determining the credibility of the witnesses. Commonwealth v. McCloskey, 835 A.2d 801, 809 (Pa. Super. 2003). “An appellate court cannot substitute its judgment for that of the finder of fact.” Id. “Moreover, where the trial court has ruled on the weight claim below, an appellate court’s role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.” Id. “Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is the result of partiality, prejudice, bias, or ill will.” Commonwealth v. Forbes, 867 A.2d 1268, 1273 (Pa. Super. 2005). Not surprisingly, a trial court’s exercise of discretion in finding that a verdict is or is not against the weight of the evidence is “one of the least assailable reasons for granting ... a new trial.” Id.

In the instant case, the victim testified that the defendant hit him on the knee with a full-sized baseball bat. The defendant testified that the bat in question was a souvenir baseball bat that was approximately one inch in diameter, and that he was acting in self-defense. (N.T. at 73-74.) Because this was a bench trial, and the court was acting as finder of fact, it is not necessary to speculate as to what the jurors may have been thinking about during their deliberations. This court found the Commonwealth’s witness to be extremely credible, and found the defendant’s version of the events fanciful. There was nothing shocking about the verdict. Furthermore, the denial of the defendant’s post-sentence motion was not manifestly unreasonable, was not the result of misapplication of the law, and was not the result of partiality, prejudice, bias, or ill will. Therefore, the defendant’s first allegation of error is without merit.

SUFFICIENCY OF THE EVIDENCE

The defendant’s second argument is that the evidence was not sufficient to prove that he attempted to cause or caused serious bodily injury. Once again, because the defendant was charged under subsection (a)(4) of the aggravated assault statute, the Commonwealth was not required to prove serious bodily injury. Furthermore, the standard of review is well-settled. Sufficiency of the evidence claims are questions of law. Commonwealth v. Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751 (2000). “Evidence will be deemed sufficient to support the verdict where it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt.” Id. When reviewing a sufficiency claim, an appellate court must view the evidence in the light most favorable to the verdict winner. Id. The facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Commonwealth v. Lewis, 911 A.2d 558, 563 (Pa. Super. 2006). Furthermore, “[a]ny doubts regarding an appellant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances.” Id.

Pursuant to the Crimes Code, a person is guilty of aggravated assault if he “attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon.” 18 Pa.C.S. §2702(a)(4). Bodily injury is defined by the Crimes Code as “impairment of physical condition or substantial pain.” 18 Pa. C. S. §2301. The evidence, as detailed above, was clearly sufficient in this case to establish each material element of the crime charged beyond a reasonable doubt. Therefore, this claim must also fail.

For the aforementioned reasons, we respectfully request that the defendant’s appeal be denied.

      .18 Pa.C.S. §2702(a)(4).


author: GRINE P.J.,

text:
    Summerson v. HRI Inc.
    C.P. of Centre County,
    no. 2008-1020.

      Stuart L. Hall, for plaintiff.

      David B. Consiglio, for defendants.

      Edward I. Levicoff, for additional defendants.
    March 9, 2010
   GRINE P.J.,

Presently before the court are motions in limine brought by HRI Inc. and PennDOT (defendants). Protection Services (additional defendants) joins defendants in their motions.

DISCUSSION

Defendants are asking the court to exclude certain testimony by Aaron Rhone and Kimberly Croft. Defendants claim that some of the testimony they may provide is irrelevant, speculative and not rationally related to their own perceptions of the actual accident scene. “If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are rationally based on the perception of the witness, helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Pa.R.E. 701.

The testimony of Mr. Rhone must remain limited to the scope of what he actually witnessed on the day of Ms. Summerson’s accident and within the vicinity of Ms. Summerson’s accident. Mr. Rhone may not testify to the conditions of construction sites he has seen in the past or since the date of Ms. Summerson’s accident. This evidence would be irrelevant, based on Mr. Rhone’s specialized knowledge as a firefighter and would likely confuse, mislead, and prejudice the jury. “The basic requisite for the admission of any evidence is that it be both competent and relevant.” McManamon v. Washko, 906 A.2d 1259, 1274 (Pa. Super. 2006). Mr. Rhone’s observations about the condition of other construction sites on other days are not relevant to the current action. Mr. Rhone also has specialized training in an area relating to traffic patterns. Mr. Rhone is a firefighter and has specialized knowledge of emergency traffic control requirements. Mr. Rhone does not have any expertise in the area of traffic control devices as they are used in a construction zone. Pa.R.E. 701 limits testimony by non-experts to testimony “not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Finally, the court finds that the testimony that defendants seek to exclude may confuse, mislead or prejudice the jury. Under Ratti v. Wheeling Pittsburgh Steel Corp., 758 A.2d 698, 708 (Pa. Super 2000), such evidence should be excluded, even if they would otherwise be admissible. The court agrees with defendants that testimony from a firefighter relating to the way traffic patterns should be or whether they were confusing on a day other than the day of Ms. Summerson’s accident would be prejudicial and confusing to the jury. Therefore the court will limit Mr. Rhone’s testimony to what he witnessed on the day of Ms. Summerson’s accident. Mr. Rhone will not be permitted to provide his opinions as to the conditions of traffic patterns at a different location or on a different day at the same location. Additionally, Mr. Rhone will not be permitted to give his testimony as to whether the traffic pattern was improperly marked or whether it was confusing. Mr. Rhone will also not be permitted to discuss his training in Highway Incident Scene Safety guidelines; as such testimony is irrelevant and prejudicial to the current claim.

Ms. Croft shall similarly not be permitted to testify as to her observations of construction sites and traffic patterns she observed at times other than the time of Ms. Summerson’s accident. Additionally she will not be permitted to testify as to the condition of traffic patterns and markers at a location other than the scene of the accident. Ms. Croft may not testify as to whether or not she felt that the traffic pattern at the scene of Ms. Summer-son’s accident was confusing. Plaintiff and defendants have the opportunity to describe the traffic pattern and the markers to the jury and the jury will be able to draw their own conclusions from this evidence. “When facts can be fully and accurately described to the jury, and the jury persons, without special knowledge or training, are capable of estimating the bearing of those facts on the issues of the case, opinions of witnesses, expert or otherwise, are inadmissible.” Whyte v. Robinson, 421 Pa. Super. 33, 40, 617 A.2d 380, 384 (1992). Ms. Croft shall not be permitted to make any mention of missing traffic pattern markers at different locations or at a time other than the time of Ms. Summerson’s accident. Ms. Croft shall not be permitted to make generalized statements about the condition of the construction site such as “it was always screwed up,” as these would confuse and mislead the jury.

ORDER

And now March 9, 2010, the court enters the following order:

(1) Mr. Rhone shall only be permitted to testify as to what he observed on the day and at the time of Ms. Summerson’s accident. Mr. Rhone shall not be permitted to testify as to the proper or improper placement of traffic pattern markers. Mr. Rhone shall not be permitted to testify as to the condition of the construction site at any other day or a location other than the scene of Ms. Summerson’s accident. Mr. Rhone shall not be permitted to testify as to whether the traffic control pattern at the scene of the accident was “confusing.” Mr. Rhone shall not make any comparison between the construction site where Ms. Summerson’s accident occurred and any other construction site or any accident scene where traffic control devices were used.

(2) Ms. Croft shall only be permitted to testify as to what she observed at the day and time of Ms. Summer-son’s accident. Ms. Croft shall not be permitted to testify as to whether the construction site and traffic patterns were confusing. Ms. Croft shall not be permitted to compare the construction site at the scene of the accident to other constructions sites she has seen at other times.


author: KISTLER, J.,

text:
    Target National Bank v. Guida
    C.P. of Centre County,
    no. 2990-5199.

      Gregg L. Morris, for plaintiff.

      James N. Bryan, for defendant.

      March 12, 2010
   KISTLER, J.,

Presently before the court is Target National Bank’s motion for judgment on the pleadings. A hearing was held on March 1,2010, and plaintiff has provided this court with a memorandum of law. The issue of contention in this motion is whether Ms. Guida’s answer admits or incorrectly denies the averments in the complaint and therefore lends itself to be susceptible to Target National Bank’s motion for judgment on the pleadings. For the following reasons the court grants Target National Bank’s motion for judgment on the pleadings.

DISCUSSION

At issue are Ms. Guida’s responses in her answer to paragraphs three through 11 of Target National Bank’s complaint. Paragraphs three through 11 of the answer each state the following, “After reasonable investigation, the defendant is without knowledge or information sufficient to form a belief as to the allegations contained in this paragraph and therefore denies same and demands strict proof at the time of trial.” Target National Bank contends that this response amounts to a general denial which should have the effect of an admission for purposes of deciding this motion.

Pa.R.C.P. 1029(b) states, “Averments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication. A general denial or a demand for proof, except as provided by subdivisions (c) and (e) of this rule,.shall have the effect of an admission.” Subdivision (c) provides, “A statement by a party that after reasonable investigation the party is without knowledge or information sufficient to form a belief as to the truth of an averment shall have the effect of a denial.” However, the note to subsection (c) states, “Reliance on subdivision (c) does not excuse a failure to admit or deny a factual allegation when it is clear that the pleader must know whether a particular allegation is true or false.” See also, Cercone v. Cercone, 254 Pa. Super. 381, 388-89, 386 A.2d 1, 4 (1978) (“This denial is patently insufficient since it is clear that the defendants must know whether or not they received the payment. They cannot be heard to say that they are without knowledge or information sufficient to form a belief as to the truth of such averments.”).

Upon review of Ms. Guida’s corresponding answers to paragraphs three through 11 of the complaint, the court determines that Ms. Guida has failed to specifically deny any of these averments. Therefore the court must determine whether Ms. Guida’s responses to paragraphs three through 11 of the complaint are properly plead under the 1029(c) general denial exception. The court determines that Ms. Guida’s responses to paragraphs three, four, and six through 11 of the complaint fail to satisfy the requirements of Pa.R.C.P. 1029(c). It is clear that Ms. Guida must know whether or not these averments are true or false and therefore Ms. Guida cannot rely on Pa.R.C.P. 1029(c). However, the court determines that Ms. Guida’s general denial to paragraph five of the complaint is privileged under Pa.R.C.P. 1029(c). Paragraph five of the complaint states, “plaintiff maintains accurate books of account recording all credits and debts for this account.” This is precisely the type of allegation where a general denial under Pa.R.C.P. 1029(c) is proper. In this instance the truthfulness or falsity of this statement is clearly outside the immediate knowledge of Ms. Guida and therefore her corresponding answer is a proper response alleging a general denial pursuant to Pa.R.C.P. 1029(c). Although the court determines that not all the allegations in the complaint have been admitted, the court must still decide whether Target National Bank has met its burden in its motion for judgment on the pleadings.

“A motion for judgment on the pleadings will be granted only where, on the facts averred, the law says with certainty no recovery is possible.” Piehl v. City of Philadelphia, 987 A.2d 146 (Pa. 2009). “Judgment on the pleadings is proper only where the pleadings evidence that there are no material facts in dispute such that a trial by jury would be unnecessary.” Bowman v. Sunoco Inc., 986 A.2d 883, 886 (Pa. Super. 2009). “A material fact is one that directly affects the outcome of the case.” Beach v. Burns International Security Services, 406 Pa. Super. 160, 164, 593 A.2d 1285, 1286 (1991) (defined in the context of a motion for summary judgment). “In conducting this inquiry, the court should confine its consideration to the pleadings and relevant documents.” Piehl, 987 A.2d 146 (Pa. 2009) (citing SN Inc. v. Long, 208 Pa. Super. 38, 220 A.2d 357 (1966)).

Upon review of the complaint the court determines that there are no material facts in dispute to prevent Target National Bank from prevailing in its account stated action. Our Supreme Court defines an account stated as “an account in writing examined and accepted by both parties. And this acceptance need not be express, but may be implied from circumstances.” Leinbach v. Wolle, 211 Pa. 629, 630, 61 A. 248 (1905)(citing Story’s Eq. Jur. §526). In Leinbach, there was a dispute arising over a bill for an account of partnership transactions. In order to settle this dispute, the three partners agreed to hire an expert to value the account. When the expert rendered a final value two of the parties expressly consented that it was correct while Mr. Leinbach, the third partner, remained silent regarding the correctness of the expert’s valuation. The Supreme Court determined that Mr. Leinbach’s failure to raise an objection to the value at the time it was rendered by the expert resulted in his implied consent to the value of the account stated.

In the instant case, Ms. Guida admits that she opened an account with Target National Bank and was provided with monthly statements as to the value of the balance of her account. Ms. Guida admits that she never raised an objection to the value of the account and continued to make payments towards this balance. Just as in Leinbach, the fact that Ms. Guida failed to object to the value of the account means that she had impliedly consented to the $4,706.22 overdue. The fact that Ms. Guida disputes Target Bank’s bookkeeping is immaterial due to her failure to object to any of the balances provided to her by Target National Bank. As a result, the court determines that Target Bank has established an account stated and its motion for judgment on the pleadings is hereby granted.

ORDER

And now, March 12, 2010, Target National Bank’s motion for judgment on the pleadings is hereby granted.


author: SPATARO, J,

text:
    Coffin v. Medina Revenue Company LLC

      C.P. of Crawford County,
    no. A.D. 2008-526

      Herbert Butcher, for plaintiff.

      Robert C. LeSuer, for defendant.
    March 12, 2010
   SPATARO, J,

Plaintiff, George W. Coffin, has filed this declaratory judgment action against three entities, Medina Revenue Company LLC, Medina Resource Development Company LLC and estate of Alec W. Styborski. The parties have tacitly acknowledged that Medina is the actual party in interest because the other named defendants have no ownership interest in the lands at issue. Medina has filed a motion for partial summary judgment as to Count II of the second amended complaint that we now address.

Count I of the second amended complaint seeks declaratory judgment, having the effect of terminating the defendants’ interest, if any, in a certain document referred to as the “ratification agreement” that relates to an oil and gas well, referred to as the “Styborski no. 1 well” and termination of any interest the defendants have in the oil and gas rights affecting this land. The second count seeks declaratory judgment, having the effect of terminating a certain right-of-way agreement between Coffin and Troyer Gas & Oil, dated November 11,1985 and recorded in Crawford County agreement book 128, page 870.

On July 19,1972, Otto and Opal Schultz conveyed to Consolidated Gas Supply Corporation an oil and gas lease (Schultz lease). The lease covered 54 acres of land in Rockdale Township now owned by Coffin. A “declaration of pooling”, dated May 6, 1982, was filed by Consolidated Gas that pooled together various leases, including the Schulz lease, with a certain lease by Alex W. Styborski and Marion L. Styborski, along with other lessors. The Styborski no. 1 well was then drilled upon the land owned by the Styborskis. The operator of the oil and gas well was a company called Kaltsas Oil Company Inc. Subsequently, on or about October 29, 1982, Mr. and Mrs. Schultz sold their property to Coffin. On August 25,1983, Coffin entered into an oil and gas lease with C & C Troyer Brothers (Troyer lease), which over lapped the Schultz lease which had been placed in the pool that included the Styborski no. 1 well.

Coffin and the Kaltsas Oil Company executed a document entitled a ratification agreement dated November 5,1985. The ratification agreement refers to the Schultz lease of July 19,1972 and represents Coffin’s agreement to be legally bound and governed by the terms of the Shultz lease and to ratify those terms. This conflicts with the Troyer lease and we assume that the lessee of the Troyer lease acknowledged the primacy of the Schultz lease because nothing was ever done to enforce the Troyer lease that has now expired. The ratification agreement refers to an assignment of “certain rights” to Kaltsas under the Schultz lease by Consolidated Gas while indicating that the Schultz lease is actually “owned” by CNG Development Company. The ratification agreement expressly nullified the pooling declaration of May 6, 1982, except to the extent that the Styborski no. 1 well, already in existence, was permitted to remain. The apparent intent was to prevent Kaltsas and its principals from drilling any other wells under the pooling declaration. The ratification agreement provides a formula by which Coffin was to receive 35 percent of the one-eighth royalty received from the production of gas and/or oil from the Styborski no. 1 well. The term of the lease was to continue for “so long thereafter as oil and gas is produced by Kaltsas Oil Company or its assignee, in commercially reasonable quantities from said premises from a new well to be drilled hereinafter by Kaltsas Oil Company or its assignees.” (emphasis added)

The ratification areement states that if no well is completed on or before January 1,1987 then the lease would terminate as to all parties, including CNG Development Company and/or any assignees, although it is unclear as to who these other parties are. As an alternative to the automatic termination, Kaltsas Oil Company or its assignees were permitted, on or before that date, to pay or tender to Coffin the sum of $ 1,000, which would operate as a delay rental and extend the term for 12 months for the drilling of a well. The agreement describes how the Kaltsas Oil Company will lay a pipeline from any well drilled on the leased premises to the Coffin house to provide for free gas, along with other connection provisions. Paragraph 7 of the ratification agreement states that “[IJnsofar as the well contemplated herein shall be tied into a certain gas transmission line owned by C & C Troyer Brothers for which no valid right-of-way agreement has been made, the lessor agrees to enter into a right-of-way agreement with C&C Troyer Brothers for the purpose of allowing the continued existence of said transmission pipeline provided that the consideration paid for said right-of-way agreement is in the amount of $1.50 per running foot.” (emphasis added)

Subsequently, the right-of-way agreement was entered into between Coffin and Troyer Gas & Oil, (not C&C Troyer Brothers) dated November 11, 1985, six days after the date appearing on the ratification agreement. It is this right-of-way agreement that Medina contends is not assailable by Coffin’s declaratory judgment action because of the parol evidence rule. Both the right-of-way agreement and the ratification agreement were recorded on the same day, November 15, 1985. The right-of-way agreement makes no reference to the ratification agreement. In endeavoring to analyze the ratification agreement and the right-of-way agreement together, it appears that Kaltsas became the assignee of “certain rights” of the Consolidated Gas Supply Corporation to the Schultz lease and then agreed to modify the declaration of pooling, effectively eliminating any future pooling, in order to recognize the continuing existence of the Styborski no. 1 well. Apparently, the intent was for Kaltsas to drill a well on property owned by Coffin, which was not to be included in the declaration of pooling. Coffin obligated himself to enter into the right-of-way agreement with C & C Troyer Brothers, however, C & C Troyer Brothers is not a party to either the ratification agreement or the right-of-way agreement, so it would appear, on its face, that Coffin’s efforts to have the right-of-way agreement declared void would be problematic because the right-of-way agreement contains no conditions that would, if unfulfilled, result in a termination of the right-of-way agreement.

From 1985 forward, these leases changed hands many times, including, Kenco Oil and Gas, Puma Energy, D.L. Schoen & Associates, TQI Oilfield Service Inc. and Troyer Gas and Oil (different from C & C Troyer Brothers). Medina did not enter the chain of title involving Troyer until around 1995. (Defendant’s new matter, averment 94.)

Sometime in 1986, Kenco Oil and Gas Company, a successor to Kaltsas, and a predecessor in interest to Medina, drilled an oil and gas well on Coffin’s property, referred to as the “Coffin no. 1” well. In April of 1986, the Coffin no. 1 well was connected to the gas transmission line referred to in the right-of-way agreement with Troyer Gas & Oil. Around April 9, 1999, an agent of Puma Energy disconnected the Coffin no. 1 well from the gas transmission line, according to Coffin’s allegations, and this well has never been put back into production.

Coffin claims that he entered into the right-of-way agreement with Troyer Gas & Oil on the condition that the Coffin no. 1 well was tied into that transmission line. Coffin argues that it was an implied condition of the right-of-way agreement that the Coffin no. 1 well remain tied to that transmission line, and that the disconnection of the Coffin no. 1 well by an agent from Puma terminated the right-of-way agreement. Medina contends that Coffin cannot establish the existence of an implied condition because the parol evidence rule precludes the introduction of evidence regarding the intent of the parties to an agreement where the agreement on its face is clear and unambiguous. Coffin, however, argues that the right-of-way agreement must be read in conjunction with the ratification agreement. Coffin would also like to prove that Kaltsas acted as an agent for Troyer Gas & Oil.

As has been frequently stated by the courts of this Commonwealth: “Summary judgment may be entered only in those cases where the record clearly demonstrates that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.” Mullin v. PennDOT, 582 Pa. 127, 135, 870 A.2d 773, 778 (2005). “Further, 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.” Kilgore v. City of Philadelphia, 553 Pa. 22, 25, 717 A.2d 514, 516 (1998). The right to summary judgment must be clear and free from doubt. Id. at 25, 717 A.2d at 515-16.

Pennsylvania Rule of Civil Procedure 1035.2 reads:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law:

“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or

“(2) if, after 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 action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2.

The two concepts behind a motion for summary judgment are: “(1) the absence of a dispute as to any material fact and (2) the absence of evidence sufficient to permit a jury to find a fact essential to the cause of action or defense.” Id. at explanatory comment — 1996; Young v. PennDOT, 560 Pa. 373, 375-76, 744 A.2d 1276, 1211 (2000).

We will first address Coffin’s argument that Medina’s motion for partial summary judgment is premature because discovery is not yet complete. Coffin argues that discovery in this matter is incomplete and that the disclosure of additional issues of fact to be litigated may arise with regard to the relationship between Troyer and Kaltsas, which is relevant because Medina currently owns interests that arose from the Kaltsas and Troyer leases. Coffin contends that the opportunity must be given through discovery to determine whether or not Kaltsas was acting as Troyer’s agent in persuading Coffin to enter into the right-of-way agreement with Troyer. (Plaintiff’s answer to defendant’s motion for partial summary judgment, ¶13.)

We note that Pa.R.C.P. 1035.2 contemplates that discovery has been completed; however, for the purpose of deciding whether to grant partial summary judgment on the issue before this court, no further discovery is needed. This court issued a memorandum and order with regard to defendants’ preliminary objections on September 16, 2008. Ongoing discovery for the limited issue before this court is unnecessary as we are called to interpret the right-of-way agreement, and decide whether the ratification agreement should be read in conjunction with the right-of-way agreement. These documents are both of the record before this court. Any further extrinsic evidence to these documents obtained through further discovery is precluded from this court’s consideration by the parol evidence rule as will be discussed infra.

We now decide whether the parol evidence rule precludes this court from considering evidence outside of the terms contained in the right-of-way agreement. Medina contends that the ratification agreement is extrinsic to the right-of-way agreement and is barred by the parol evidence rule. Coffin argues that parol evidence is evidence of oral statements, while extrinsic evidence is evidence relating to an agreement, but not appearing on its face, because it comes from alternate sources. Coffin states that while the parol evidence rule can operate to exclude both parol evidence and extrinsic evidence, before extrinsic evidence is precluded by this rule, it must be determined whether the writing evidencing the right-of-way agreement was an integrated contract representing a final and complete expression of the agreement.

The Pennsylvania Supreme Court has comprehensively explained the parol evidence rule as follows:

“Where the parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only, evidence of their agreement. . .. All preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract... and unless fraud, accident or mistake be averred, the writing constitutes the agreement between the parties, and its terms and agreements cannot be added to nor subtracted from by parol evidence____The writing must be the entire contract between the parties if parol evidence is to be excluded, and to determine whether it is or not the writing will be looked at, and if it appears to be a contract complete within itself, ‘couched in such terms as import a complete legal obligation without any uncertainty as to the object or extent of the engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, were reduced to writing.’” Gianni v. R. Russell & Co. Inc., 281 Pa. 320, 323, 126 A. 791, 792 (1924). (citations omitted)

The Pennsylvania Supreme Court went on to further explain the parol evidence rule as follows:

“An integration clause which states that a writing is meant to represent the parties’ entire agreement is also a clear sign that the writing is meant to be just that and thereby expresses all of the parties’ negotiations, conversations, and agreements made prior to its execution.

“Once a writing is determined to be the parties’ entire contract, the parol evidence rule applies and evidence of any previous oral or written negotiations or agreements involving the same subject matter as the contract is almost always inadmissible to explain or vary the terms of the contract.... One exception to this general rule is that parol evidence may be introduced to vary a writing meant to be the parties’ entire contract where a party avers that a term was omitted from the contract because of fraud, accident, or mistake. ... In addition, where a term in the parties’ contract is ambiguous, ‘parol evidence is admissible to explain or clarify or resolve the ambiguity, irrespective of whether the ambiguity is created by the language of the instrument or by extrinsic or collateral circumstances.’” Yocca v. Pittsburgh Steelers Sports Inc., 578 Pa. 479, 498, 854 A.2d 425, 436-37 (2004). (citations omitted) (footnote omitted)

Turning to the present matter, the right-of-way agreement does not contain an integration clause; therefore, we must determine whether the right-of-way agreement is the integrated, final and complete expression of the parties’ agreement. Coffin entered into a right-of-way agreement for the gas transmission line with Troyer Gas & Oil. The right-of-way agreement is a one-page document that sets forth the terms of the agreement whereby Coffin granted to Troyer Gas & Oil the right-of-way to lay, maintain, operate, re-lay and remove a gas transmission line on Coffin’s property for, and in consideration of $ 1. The location of the gas transmission line is clearly set forth in the right-of-way agreement, and Coffin, along with his heirs and assigns, reserved the right to use and enjoy the premises except for the uses and purpose granted to Troyer Gas & Oil. Troyer Gas & Oil agreed to repair any damage resulting from the installation of the gas transmission line, and the right-of-way agreement was signed by Coffin and a representative for Troyer Gas & Oil, in the presence of a witness, and notarized. The right-of-way agreement is clearly a complete and final expression of the parties’ agreement, whereby Coffin granted Troyer Gas & Oil the right to install and maintain a gas transmission line on Coffin’s property.

As noted earlier, Coffin in his second amended complaint for declaratory relief sets forth in Count II the claim that Coffin entered into a right-of-way agreement with C & C Troyer Brothers for the gas transmission line on the condition that the Coffin no. 1 well be tied into that transmission line. Furthermore, Coffin claims that it was an implied condition of the right-of-way agreement that the Coffin no. 1 well remained tied into the transmission line. A close reading of the right-of-way agreement establishes that there is no mention of a condition that the Coffin no. 1 well was to be tied to the transmission line, and there is nothing indicating any sort of implied condition that the Coffin no. 1 well must remain tied to the transmission line. We also note that the right-of-way agreement contains no reference to the ratification agreement; nor does the ratification agreement refer to the right-of-way agreement. Both recorded documents stand on their own.

A finding that the right-of-way agreement is the entire contract between Coffin and Troyer Gas & Oil requires a determination that any evidence of any previous oral or written negotiations or agreements involving the same subject matter as the right-of-way agreement is inadmissible to explain or vary the terms of the contract under the parol evidence rule. Yocca, 578 Pa. at 498, 854 A 2d at 436-37. There are exceptions to this general rule, only one of which may be applicable to this matter, as there have been no averments that certain terms were omitted from the right-of-way agreement because of fraud, accident or mistake. Parol evidence may be admissible in cases where there exists ambiguity as to the meaning of the covenants in a contract, and whether the ambiguity is the result of the language in the contract, or because of extrinsic or collateral circumstances, is of no consequence. Id. at 498-99, 854 A.2d at 437.

Coffin argues that the crossed-out terms in the right-of-way agreement create an ambiguity in this matter; therefore, this court may consider extrinsic evidence in the form of the ratification agreement in determining whether an implied condition existed that nullified the right-of-way agreement upon the disconnection of the gas transmission line from the Coffin no. 1 well. The crossed-out language referred to by Coffin in the right-of-way agreement is contained in the covenant whereby Coffin granted to Troyer Gas & Oil, “its successor and assigns, the right-of-way to lay, maintain, operate, *********, re-lay and remove a buried pipeline for the transportation of gas in, on, over and through grantor’s land .. ..” (Second amended complaint for declaratory relief, exhibit H.) Coffin crossed-out the small portion from the covenant above, which is evidenced by his initials. The right-of-way agreement contained no other instances where Coffin crossed-out or altered language contained in the covenants.

In Perrige v. Horning, the Superior Court dealt with a situation where there were crossed-out and initialed terms by the parties to an agreement prior to the closing on a sale for land. Perrige v. Horning, 440 Pa. Super. 31, 37, 654 A.2d 1183, 1185 (1995). The crossed-out and amended handwriting in the sales agreement was contained in the “addendum to agreement of sale,” where there were several typewritten conditions. Perrige, 440 Pa. Super, at 37, 654 A.2d at 1186. The addendum contained a condition that stated that the property retained by the defendants was to be used for agricultural purposes. Id. The plaintiffs in this case had purchased a certain tract of land, adjacent to a tract of land owned by the defendants, with the condition that the tract of land owned by the defendants would only be used for agricultural purposes. Id. That condition was crossed-out entirely in the addendum prior to the execution of the agreement because counsel for the defendants indicated that such a condition was unnecessary. Id. at 41, 654 A.2d at 1188. Subsequent to the sale agreement being executed, the defendants completed and submitted a subdivision plan to sever the tract of land for the purpose of creating and selling residential lots. Id. at 37, 654 A.2d at 1186.

The plaintiffs filed for injunctive relief in an effort to enforce the restrictive covenant and enforce their right to live next to land used for agricultural purposes, as the defendants had indicated would be the case. Id. The trial court sustained the defendants’ preliminary objections and held that the plaintiffs lacked standing, and that the agreement did not create restrictive covenants enforceable in equity. Id. at 38-39, 654 A.2d at 1187. The Superior Court reversed the trial court and found that the removal of the restrictive covenant from the agreement created an ambiguity, and that although such covenants are to be construed in light of their language, their subject matter, the intent or purpose of the parties, and the conditions surrounding their execution, where an ambiguity exists the court may consider extrinsic evidence. Id. at 41, 654 A.2d at 1188.

Although it is clear that crossing out language from an agreement may at times create an ambiguity such that the exception to the parol evidence rule may be invoked, the matter before us does not involve a similar situation to that in Perrige, supra. The right-of-way agreement does not contain any ambiguities with regard to a restrictive covenant whereby the right-of-way is terminated upon the removal of the gas transmission line from Coffin’s well because the plain meaning of the right-of-way agreement indicates that no such conditions exists, impliedly or otherwise.

In Steuart v. McChesney, the Supreme Court reviewed an agreement in the form of a right of first refusal, and discussed the plain meaning approach to interpreting contracts. Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (1982). The Supreme Court summarized the plain meaning rule as follows:

“[T]he rationale for interpreting contractual terms in accord with the plain meaning of the language expressed is multifarious, resting in part upon what is viewed as the appropriate role of the courts in the interpretive process: ‘ [T]his court long ago emphasized that “[t]he parties [have] the right to make their own contract, and it is not the function of this court to re-write it, or to give it a construction in conflict with . . . the accepted and plain meaning of the language used.” ’” Steuart, 498 Pa. at 50, 444 A.2d at 662, citing Hagarty v. William Akers Jr. Co., 342 Pa. 236, 20 A.2d 317 (1941).

In reviewing the right-of-way agreement, the language used in the agreement is express and clear, and there is no basis to refer to extrinsic evidence to interpret the terms of the agreement.

The right-of-way agreement on its face indicates that Coffin granted to Troyer Gas & Oil the perpetual right-of-way for a gas transmission line. There are no conditions that limited the duration of the right-of-way. Although it may have been sensible for Coffin to include such a limitation in the right-of-way agreement, it is not the function of this court to re-write the agreement entered into between Coffin and Troyer Oil & Gas. The Supreme Court in Steuart expressed the importance of the plain meaning doctrine as follows:

“[Rjesort to the plain meaning of language hinders parties dissatisfied with their agreement from creating a myth as to the true meaning of the agreement through subsequently exposed extrinsic evidence. Absent the plain meaning rule, nary an agreement could be conceived, which, in the event of a party’s later disappointment with his stated bargain, would not be at risk to having its true meaning obfuscated under the guise of examining extrinsic evidence of intent. Even if the dissatisfied party in good faith believed that the agreement, as manifest, did not express the consensus ad idem, his post hoc judgment would be inclined to be colored by belief as to what should have been, rather than what strictly was, intended. Hence, the plain meaning approach to interpretation rests upon policies soundly based, and the judiciousness of that approach warrants reaffirmation.” Steuart, 498 Pa. at 52, 444 A.2d at 663.

We note the practical necessity of applying the parol evidence rule in this matter. Coffin would like to offer testimony relating back to November 1985,25 years ago, to explain the interplay between the right-of-way agreement and the ratification agreement and to assert that Kaltsas was an agent for C & C Troyer Brothers or Troyer Oil & Gas. Not only do memories fade with time, but also there is a high likelihood that the persons Coffin spoke with are no longer available to testify. The defendant, Medina, is a successor in title and had no hand at all in the negotiations that resulted in the execution and filing of record of the ratification agreement or the right-of-way agreement.

Moreover, Medina, as a successor in interest, is entitled to rely upon the recording statutes and the plain meaning of language. Here, we have two separate documents within the chain of title of two separate entities, Kaltsas (ratification agreement) and Troyer Gas & Oil (right-of-way agreement). Even if an astute title searcher should happen to discover both documents while tracking through only one chain, the absence of any language in the right-of-way agreement to the ratification agreement would lead one to conclude that the right-of-way agreement stood on its own, notwithstanding the oblique reference in the ratification agreement to Coffin’s obligation “to enter into a right-of-way agreement with C & C Troyer Brothers for the purpose of allowing the continued existence of said transmission pipeline provided that the consideration paid for said right-of-way agreement is in the amount of $1.50 per running foot.” Even this quoted language, taken literally, does not condition the term of the contemplated “right-of-way agreement with C & C Troyer Brothers” to be limited to the duration of an oil and gas well that had yet to be drilled. The grantee in the right-of-way agreement is Troyer Gas & Oil, not C & C Troyer Brothers. To permit Coffin to have the court consider such language as extrinsic evidence invites the very evil that the parol evidence rule is designed to eliminate — obfuscation “under the guise of examining extrinsic evidence of intent.” Steuart, supra.

There are no ambiguities in the right-of-way agreement, and the plain meaning of the agreement does not include any of the conditions alleged to exist by Coffin; furthermore, because the right-of-way agreement is a clear and final expression of the intention of Coffin to grant to Troyer Gas & Oil a right-of-way for a gas transmission line, the parol evidence rule precludes this court from reviewing extrinsic evidence in our review and interpretation of the right-of-way agreement. There exists no genuine issue of material fact with respect to Count II in the plaintiff’s declaratory judgment action; therefore, it is appropriate to grant partial summary judgment to the defendants.

For the reasons set forth in this memorandum, we now enter the following order:

ORDER

And now, March 15,2010, the defendant’s motion for partial summary judgment is granted.


author: JOHNSON, J.,

text:
    Above & Beyond Inc. v. Zoning Hearing Board of Upper Macungie Township

      C.P. of Lehigh County,
    nos. 2009-C-2233 and 2009-C-3088.

      Mark Malkames, for appellants.

      Stephen A. Strack, for appellee.

      William E. Schantz, for intervenor.
    November 30, 2009
   JOHNSON, J.,

Before the court for consideration are the zoning appeal notice/land use appeal filed in the case docketed at 2009-C-2233 on May 1, 2009 and the zoning appeal notice/land use appeal filed in the case docketed at 2009-C-3088. The court heard argument on these appeals on August 19, 2009.

As explained more fully below, the appeals are denied and dismissed.

I. BACKGROUND FACTS

The appellant in the matter docketed at 2009-C-2233, Above & Beyond Inc., is the operator of the proposed personal care home. The real estate proposed for the facility is comprised of two lots owned by Nadir F. Hamati, Kelly Hamati, Rasima Hamati-Attieh and Tony M. Attieh. The real estate is located in an R-2 zoning district in Upper Macungie Township. Above & Beyond has twice sought special exception zoning approval for the proposed personal care assisted living facility. The second request for relief reflected a change in design of the facility that alleviated the need for an interpretation of, or variance from, the Upper Macungie Zoning Ordinance.

On March 11, 2009, Above & Beyond sought three forms of relief at the hearing of the appellee, the Upper Macungie Zoning Hearing Board. First, Above & Beyond sought a special exception to utilize the subject property as a “personal care home” or a “nursing home” pursuant to the terms of the ordinance §§118.C.4, 119.C, 402A3 and 402.44. The second request for relief was an interpretation of the ordinance, requesting that the proposed personal care home be categorized as a residential, rather than an institutional use, as categorization as an institutional use would require a variance from the buffering requirements, while a residential categorization would not. Finally, Above & Beyond sought a variance that would allow the proposed use to operate without a buffer yard as otherwise required by the ordinance if it was ultimately determined to be an institutional use.

After the hearing, the board denied the requested relief by unanimous decision, finding that the proposed use constituted an institutional “personal care” home as defined by the ordinance. Further, the board found that the proposed use did not meet the standards enunciated by the Municipalities Planning Code (MPC) and ordinance to justify the grant of a special exception use or variance. Said special exception use, variance and interpretation requests were denied. On April 8,2009, the board issued its written decision and on May 1,2009, Above & Beyond filed its appeal at docket number 2009-C-2233.

On March 26, 2009, Above & Beyond applied for substantially similar zoning relief, but altered the physical design to alleviate the need for a variance from the buffer yard requirements and interpretation of the zoning ordinance. On April 22,2009, a hearing was held on the second application for relief. The board, again by unanimous three to zero vote, made findings of fact and conclusions of law that the proposed use was an institutional use “personal care” home and did not meet the standards enunciated by the MPC and ordinance to justify the grant of a special exception. On June 18, 2009, the appellants, Above & Beyond Inc., Nadar F. Hamati, Kelly Hamati, Tony M. Attieh and Rasima Hamati-Attieh, filed an appeal at docket number 2009-C-3088. On June 23, 2009, the two appeals were consolidated.

II. APPLICABLE LAW

a. Scope of Review

The scope of review in a zoning appeal is limited to determining whether the board committed an abuse of discretion or an error of law in reaching its decision. Limley v. Zoning Hearing Board of Port Vue Borough, 533 Pa. 340, 343, 625 A.2d 54, 55 (1993). An abuse of discretion occurs where the board makes material findings that are not supported by substantial evidence defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Val ley View Civic Association v. Zoning Hearing Board of Adjustment, 501 Pa. 550, 555, 462 A.2d 637, 640 (1983). So long as the record demonstrates the existence of substantial evidence, the court is bound by the zoning hearing board’s findings that are the result of resolution of credibility and conflicting testimony rather than capricious disregard of the evidence. Vanguard Cellular System Inc. v. Zoning Hearing Board of Smithfield Township, 130 Pa. Commw. 371, 378, 568 A.2d 703, 707 (1989).

b. Zoning Ordinance

A special exception is a conditionally permitted use, legislatively allowed where specific standards and conditions detailed in the ordinance are met. Agnew v. Bushkill Township Zoning Hearing Board, 837 A.2d 634, 637 (Pa. Commw. 2003). The applicant seeking a special exception has the burden of proving: (1) that the proposed use is a type permitted by a special exception; and (2) that the proposed use complies with the requirements of the ordinance for a special exception. Id. Once an applicant for a special exception shows compliance with the specific requirements of the ordinance, the burden shifts to the protestors to prove that the proposed use will have an adverse effect on the general public. Id.

If the written decision of the zoning hearing board addresses all issues for relief presented by the applicant, and the decision on those requests is supported on the record by some credible facts, the zoning hearing board’s decision will not be disturbed merely because it is brief or does not comprehensively recite every applicable provision of the ordinance. See e.g, Silar v. Zoning Board of Adjustment of Spring Garden Township, 46 Pa. Commw. 340, 407 A.2d 74 (1979). A zoning board’s interpretation of its own zoning ordinance is entitled to great weight and deference. City of Hope v. Sadsbury Township Zoning Hearing Board, 890 A.2d 1137, 1143 (Pa. Commw. 2006).

III. DISCUSSION

a. Special Exception

In reviewing the record from the subject hearings, the board’s written decisions and after briefing and oral argument, it is clear to the court that the board properly denied the applicants’ request for a special exception use personal care home. The appellants failed to demonstrate that the proposed use would comply with the express objective prerequisite criteria applicable to the proposed use. Additionally, the township objectors presented credible substantive testimony that the proposed use would fail to satisfy the subjective criteria of the ordinance applicable to special exception use.

For example, sections 812.B.5 and 812.E require a traffic study for all proposed land development, which the appellants failed to provide. Additionally, the appellants failed to demonstrate that the proposed use would not reduce the public roads proposed to service the use below the traffic service level of “C”, as required by section 118.C.4.b of the ordinance.

Finally, the appellants failed to provide substantive testimony as to how the existing storm water runoff environment affecting the subject property, as evidenced by the existing large detention pond, would be acceptably mitigated or controlled.

Additionally, the township objectors appear to have presented substantive, credible evidence of health, safety and welfare concerns that were not rebutted by the appellant. For instance, the proposed use presented a potential fire hazard as designed and the proposed use would create a traffic hazard or exacerbate an existing hazard due to poor traffic flow design. Also, the objectors raised the concern that the R-2 zoning district is not designed or planned to accommodate a high density personal care home as designed and proposed by the appellants.

Based on the failure of the appellants to meet the objective criteria of the ordinance, and the subjective evidence of health, safety and welfare concerns presented by the township objectors, the court will not disturb the board’s findings.

b. Variance and Ordinance Interpretation

The appellants appear to have voluntarily withdrawn the request for a variance and ordinance interpretation. N.T., Zoning Hearing Board hearing 3/11/09, p. 8. Additionally, the second plan altered the design of the proposed use to alleviate the need for the interpretation of the ordinance and potential resulting need for a variance. Therefore, the court will not discuss the board’s decision as to these issues.

IV. CONCLUSION

Therefore, for the reasons set forth above, the court finds that the Zoning Hearing Board of Upper Macungie Township did not commit an abuse of discretion or error of law in reaching its decision to deny the requests for relief and the appeals are denied and dismissed.

ORDER

And now, November 30,2009, upon consideration of the zoning appeal notice/land use appeal filed in the case docketed at2009-C-2233 on May 1,2009 and the zoning appeal notice/land use appeal filed in the case docketed at 2009-C-3088 and the responses thereto and after argument thereon; it is hereby ordered that, for the reasons set forth in the accompanying memorandum opinion, the appeals are denied and dismissed.