author: TUNNELL, J,

text:
    In Re Appeal of Brown

      C.P. of Chester County,
    No. 2012-10054.

      William G. Brown, pro se.

      Colleen A. Preston, for Chester County Board of Assessment Appeals.

      William J. Brennan, for Schuylkill Township.
    March 12, 2013
   TUNNELL, J,

William G. Brown appealed the refusal of the Chester County Board of Assessment Appeals to reduce the assessed value of his residential property in the amount of $290,870 for the 2013 tax year. After conducting a trial de novo on March 8,2013 and in consideration of the competent and credible evidence presented therein, the court grants the appeal of William G. Brown and reduces the assessment for the year in question to $224,200, producing a fair market value of $380,000.

FINDINGS OF FACT

1. The appellant, William G. Brown, is the record owner of a single-family residence located on. 63 acres at 117 Pembrooke Circle, in the Valley Forge Woods development, Schuylkill Township, Chester County, Pennsylvania.

2. The appellees are the Chester County Board of Assessment Appeals, Schuylkill Township, and the Phoenixville Area School District.

3. The subject property, bearing a tax assessment parcel number of 27-08-0091, is improved by a two-story stucco dwelling, featuring four bedrooms, 2 1/2 baths, a two-car garage, a finished basement and a covered deck. The house has a gross living area of 2,656 square feet.

4. The property owner filed an appeal to the Chester County Board of Assessment Appeals appealing the increase in the assessed value for the subject property, which had been $277,450.

5. The Chester County Assessment Office assessed the property for 2013 in the amount of $290,870 which, when divided by the common level ratio of 59 percent for 2013, yields a fair market value of $493,000.

6. This was effected by a notice of assessment increase sent by the Board of Assessment Appeals with a mailing date of August 29, 2012.

7. Atrial de novo was conducted by this court on March 8,2013.

8. The Board of Assessment Appeals presented the assessment record into evidence, establishing its prima facie case.

9. The property owner then offered the testimony of Helen Campitelli. She testified that she is licensed by the Bureau of Professional & Occupational Affairs of the Pennsylvania Department of State as an appraiser trainee. She is an employee of J. Puleo Management of Phoenixville and is supervised by Frances J. Puleo.

10. Mr. Puleo reviewed all of the 300 appraisals she had done over the past year, and was present when she made her site inspections. Ms. Campitelli also has 26 years of experience as a licensed real estate sales agent.

11. Over objection of the Chester County Board of Assessment Appeals, the court determined that Ms. Campitelli was qualified as an expert and was competent to perform real estate appraisals under the direct supervision of a licensed real estate appraiser.

12. Frances J. Puleo was also presented as a witness by the property owner. He testified that his company employs Ms. Campitelli, that he supervises her, and affirmed that he has reviewed over 300 appraisals by her, including two pertaining to the subject property. Mr. Puleo testified that he has over 50 years of experience, having first been certified as a Pennsylvania licensed real estate appraiser in 1965.

13. Mr. Puleo’s signature appears on the written appraisal of real property, marked as Petitioner’s Exhibit 1, as the “supervising state certified real estate appraiser.”

14. Ms. Campitelli testified that she only considered the sales approach, and developed three comparables to arrive at her opinion of value.

15. Comparable sale number 1, with an address of 45 Amherst Court, Phoenixville, Pennsylvania, while located in the same development as the subject property, was improved by a much larger home of 3,959 square feet. It had an unfinished basement, and an uncovered deck. After adjustments, she placed the fair market value at $485,925.

16. Comparable sale number 2 was a parcel located at 300 Shelboume Lane, Phoenixville, Pennsylvania, also with a much larger home than the subject property of 4,004 square feet, and a fair market value of $505,400.

17. Her third comparable sale was located at 96 Ferry Lane, Phoenixville, Pennsylvania, which was improved by a dwelling of2,894 square feet and is most like the subject property. It also had a finished basement and a deck, but adjustments had to be made because of the presence of an in-ground swimming pool. The fair market value was $350,050.

18. To make her final reconciliation, Ms. Campitelli testified that from the comparables she settled on a mean value of $133 per square foot, multiplied it by 2,656 square feet for the subject property and, after adjustments for the basement and deck, her opinion was that the fair market value of Ms. Brown’s property was $380,000 as of November 17, 2012.

19. It was brought out on cross-examination that Ms. Campitelli’s original opinion of value prepared for the hearing before the Chester County Board of Assessment Appeals last year was $493,000 (Exhibit B-3).

20. Ms. Campitelli testified that she had made a mistake. In doing approximately 30 appraisals in this same development, she did not realize that 29 properties had much larger residences, and that Mr. Brown’s square footage was significantly smaller. She did not use a proper median value for square footage, and instead used only sales prices, as she had done for the other 29 appraisals.

21. Ms. Campitelli testified that in this situation square footage is the most important factor, and that thus she had “botched” it.

DISCUSSION

Under the General County Assessment Law, the taxing authority has the power to rate and value all objects of taxation “according to the actual value thereof....” 72 P.S. §5020-402(a). “Actual value” means “market value” which, in turn, is the price a willing buyer would pay a willing seller, considering the uses to which the property is adapted and might reasonably be adapted. Buhl Foundation v. Board of Property Assessment, 407 Pa. 567, 570, 180 A.2d 900, 902 (1962); Willow Valley Manor, Inc. v. Lancaster County Board of Assessment Appeals, 810 A.2d 720, 723-724 (2002). In arriving at the “actual value” under 72 P.S. §5020-402(a), all three appraisal methods — cost, income and comparable sales approaches — must be considered in conjunction with one another. Morelyn Plaza Ltd. Partnership v. Bucks County Board of Assessments, 1997 WL 68578, *3 (Bankr. E.D. Pa. 1997), aff’d, 149 F.3d 1164 (3rd Cir. 1998).

In a tax assessment appeal, the court of common pleas must proceed de novo. Murtagh v. County of Berks, 715 A.2d 548, 552 (Pa. Cmwlth. 1998), app. den., 557 Pa. 656, 734 A.2d 863 (1999). In a de novo appeal, it is the trial court’s duty “to independently determine the fair market value of the parcel on the basis of the competent, credible and relevant evidence presented by the parties.” Green v. Schuylkill County Board of Assessment Appeals, 565 Pa. 185, 196, 772 A.2d 419, 426 (2001); Westinghouse Electric Corp. v. Board of Property Assessment, 539 Pa. 453, 463, 652 A.2d 1306, 1311 (1995). The trial court also has the discretion to decide which of the methods of valuation is the most appropriate and applicable to the given property. Willow Valley Manor, Inc., 810 A.2d at 723. If the trial court is presented with conflicting testimony by equally credible experts, it is appropriate for the court to find that the fair market value of the property is “somewhere between the values presented by the competing experts.” Green, 565 Pa. at 208, 772 A.2d at 433; Westinghouse, 539 Pa. at 464, 652 A.2d at 1312; Trustees of the International Brotherhood of Painters v. Board of Revision of Taxes, 34 Phila. Co. Rptr. 189, 191 (1997). The trial court is free to accept all, part or none of an expert’s testimony in determining value. West Mifflin Area School District v. Board of Property Assessment, 802 A.2d 687, 691 (Pa. Cmwlth. 2002).

In a tax assessment appeal, once the taxing authority has presented its assessment record into evidence, it has made out a prima facie case for the validity of the assessment by fixing the time when the burden of coming forward with evidence shifts to the taxpayer. Deitch Co. v. Board of Property Assessment, 471 Pa. 213, 221, 209 A.2d 397, 402 (1965). If the taxpayer produces sufficient proof to overcome its initially allotted status, the evidentiary value of the taxing authority’s assessment record ceases and may no longer influence the court’s determination of the assessment’s correctness. Green, 565 Pa. at 195, 772 A.2d at 425-426. In that event, the taxpayer continues to carry the burden of persuasion subject to the taxing authority’s ability to rebutthe owner’s evidence. Westinghouse Electric Corp. v. Board of Property Assessment, 539 Pa. 453, 460, 652 A.2d 1306, 1310 (1995). See also 16 McQuillin, The Law of Municipal Corporations §44.124 (3rd Ed.).

The court begins by observing that it determined Ms. Campitelli’s testimony to be credible and competent. The court concluded that her licensure and experience qualified her to offer an opinion of value, supervised as she was by a licensed real estate appraiser of many years. The court also accepts her explanation that she made an honest mistake. To be sure, this was not the strongest expert testimony the court has ever heard, but hers was the only expert testimony presented during the hearing de novo.

Accordingly, Mr. Brown, as the property owner, produced sufficient proof to overcome the prima facie case presented by the board of assessment appeals so that the certified record no longer could influence the court’s determination. It is noteworthy that neither the township nor the Phoenixville Area School District chose to present any rebuttal expert testimony.

In short, the court accepts the testimony of Ms. Campitelli and Mr. Puleo, and finds that it is not difficult to believe that a house with 2,600 feet could be worth $100,000 less than one of 4,000 square feet around the comer in the same upscale development.

During closing arguments, the board of assessment appeals advised the court that the appraisal date of September 17, 2012 on petitioner’s Exhibit 1 was not correct, and that the appraisal should have been stated as of the appeal date of May 2012.

The court has looked through all of the testimony and documents presented and the appeal date is not in evidence. The court finds that the September 17,2012 appraisal date is probative of the only issues that were presented in the case.

CONCLUSIONS OF LAW

1. The Board of Assessment Appeals established a prima facie case which was, however, rebutted by the competent, credible and relevant evidence presented by the property owner, William G. Brown.

2. According to the competent, credible and relevant evidence the assessed value of the subject property, tax parcel number 27-8-91, for the tax year of 2013 is $224,200 and, applying the common level ratio of 59 percent, the fair market value is $380,000.

ORDER

And now, March 12, 2013, upon consideration of the competent and credible evidence introduced by the parties at the trial de novo held on March 8, 2013, and based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby ordered and decreed that the appeal of the taxpayer, William G. Brown, is granted, and the assessment of the subject parcel shall be reduced from $290,870 to $224,200 for the 2013 tax year.


source: Caselaw Access Project

author: RIZZO, J.,

license: Public Domain

text:
    Morey’s Pier, Inc. v. Jones

      Robert W. Stanko, Mary C. Doherty and Thomas R Wagner, for appellants

      James E. Beasley, Jr. and Jeffrey M. Reiff for appellees
    January 18, 2013
   RIZZO, J.,

The appellants, Morey’s Pier, Inc., Morey’s Attractions, LLC., and the Morey Organization, LLC., appeal from this court’s order of June 29, 2012, docketing date of July 3, 2012, that was entered on the appellants’ motion to dismiss for forum non conveniens.

PROCEDURAL HISTORY

Appellees Tawanda and Bryon Jones, administrators of the estate of Abiah Jones, commenced this action in Philadelphia County against the appellants via the filing of a complaint on July 7,2011. Counsel for appellees filed acceptance of service notifications with the court on July 15, 2011, service having been accepted by appellants on July 7, 2011. Appellants filed preliminary objections as to lack of jurisdiction and to improper venue on July 28, 2011. Discovery on the issues of venue and jurisdiction was granted by this court on August 24, 2011. The court overruled appellants’ preliminary objections on January 17, 2012. Appellants filed a motion to amend the court’s order of January 27, 2012 to certify the order for Interlocutory appeal on the issue of venue on February 16, 2012. In turn, on March 5,2012, appellants filed amotion to dismiss for forum non conveniens. The Superior Court denied the appellants’ petition for review on June 12, 2012. On June 21,2012, this court mooted the appellants’ motion to amend the court’s order of January 27,2012 for interloctutory appeal in response to the Superior Court’s denial of appellants’ petition for review.

On July 3, 2012, this court denied appellants’ motion to dismiss for forum non conveniens. Appellants filed a motion to amend the court’s order of July 3,2012 on July 30,2012. This court held oral argument on said motion on September 6,2012 and denied appellants’ motion to amend the court’s order of July 3, 2012 on September 7, 2012. On October 10, 2012, this court granted the unopposed motion for extraordinary relief filed by appellants to place said matter on a complex track, which revised the case management order and extended discovery deadlines and related trial deadlines. The Superior Court accepted the appellants’ petition for review on November 19,2012 and ordered that said appeal would proceed forward as an appeal from this court’s order dated June 29, 2012, docketed July 3, 2012.

FACTS

On June 3, 2011, the decedent, Abiah Jones, a minor, was on a school trip at an amusement park, which is owned and operated by appellants, in Wildwood, New Jersey. She was a passenger on the “Giant Wheel” amusement park ride when she fell from the ride and sustained injuries that resulted in her untimely death at the scene of the incident. Appellees Tawanda and Byron Jones, parents to the decedent, serve as administrators of her estate.

ISSUES ON APPEAL

The matter complained of on appeal is summarized below:

The trial court committed an error of law in denying the appellants’ motion to dismiss for forum non conveniens.

LEGAL DISCUSSION

I. THE TRIAL COURT CORRECTLY DENIED APPELLANTS’ MOTION TO DISMISS FOR FORUM NON CONVENIENS

A plaintiff’s choice of jurisdiction should not be disturbed absent “weighty reasons.” Jessop v. ACF Indus., LLC, 859 A.2d 801, 803 (Pa. Super. Ct. 2004). Under the doctrine of forum non conveniens, a court may dismiss a matter when “in the interest of substantial justice the matter should be heard in another forum.” 42 Pa. Cons. Stat. Ann. § 5322(e). A court’s decision of whether to dismiss a case under that doctrine may not be reversed absent an abuse of discretion. Farley v. McDonnell Douglas Truck Services, Inc., 638 A.2d 1027, 1030 (1994). The decision to dismiss a case is based upon two factors: “(1) a plaintiff’s choice of the place of the suit will not be disturbed except for weighty reasons, and (2) no action will be dismissed unless an alternative forum is available to the plaintiff.” Wright v. Aventis Pasteur, Inc., 905 A.2d 544, 548 (Pa. Super. Ct. 2006) citing Jessop, 859 A.2d at 803. The “weighty reasons” include both private and public elements. Wright, 905 A.2d at 548. The private elements to consider are:

the relative ease of access to sources of proof; availability of compulsory process for attendance for unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of the premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.

Farley, 638 A.2d at 1030 (Pa. Super. Ct. 1994) citing Plum v. Tampax, Inc., 399 Pa. 553, 561, 160 A.2d 549, 553 (1960).

The public elements to consider are:

Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. There is an appropriateness, too, in having the trial... in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.

Id.

In the instant case, after venue and jurisdiction were found to be proper in Philadelphia County, appellants argued that the case should be dismissed so that it may be filed in New Jersey under the doctrine of forum non conveniens. Appellants’ main argument, offered at oral argument on September 6, 2012, is that key witnesses will not be available if the case is heard in Philadelphia due to the lack of subpoena power. Appellants also argue that if the case is heard in Philadelphia, jurors will not be able to visit the scene of the incident and that Philadelphia residents have no relation to the case. In their response, Appellees presented compelling arguments addressing each of these factors. After balancing the realities of this case, both the specific private and public factors heavily weigh in favor of denying appellant’s motion to dismiss and keeping the case in Philadelphia.

Most of appellants’ argument relies on the availability of certain witnesses for trial, specifically the first responders and the police officers. None of these witnesses, however, actually witnessed the incident. The police officers’ investigation consisted of taking statements from other witnesses. The first responders never saw the decedent alive. Appellants also argue that they may need to interview school employees who were at the amusement park with the decedent. If the case remains in Philadelphia, appellants are unsure if they would be able to bring in the employees as witnesses. Appellees respond that the availability of these witnesses is not an issue because they have shown willingness to avail themselves for trial purposes.

Philadelphia is also a more convenient forum for the other witnesses. The only two witnesses who saw the incident occur, ride attendents Andrew Eberhardy and Mina Samaan, do not live in New Jersey or Pennsylvania but rather in Wisconsin and Indiana, respectively. If they were to testify, they would be required to fly into Philadelphia International Airport no matter whether the trial was held in Philadelphia County or in Cape May County. The expert witness for appellees will be flying into Philadelphia International Airport as well from California. Officials from the Department of Community Affairs, who inspected the Great Wheel ride, are located in Trenton, New Jersey, which is much closer to Philadelphia than to Cape May. In fact, the Enforcement Supervisor of the Department, Michael Triplett, advised appellees’ investigator that conducting a deposition in Philadelphia would be easier than in Cape May. The medical examiner involved in the case has written an affidavit stating that it would be much easier for him to come to Philadelphia. Finally, Philadelphia is also more convenient for the father and grandmother of the decedent, who both live in the city. Neither have a car, so both must rely on either public transportation or hired cars.

Appellants also argue that jurisdiction in Cape May would allow for the jury to visit the scene of the incident. However, jury views are “seldom necessary.” Johns v. First Union Corp, 777 A.2d 489, 492 (Pa. Super. Ct. 2001). The Superior Court has also noted that they are “rarely conducted.” Walls v. Phoenix Ins. Co. 979 A.2d 847, 852 (Pa. Super. Ct. 2009). Photographs and video can allow the jury to understand the scene. A site visit just to see the “Great Wheel” may not be necessary in this case.

An analysis of the relevant public elements also demonstrates that the instant case should remain in Philadelphia. Though appellants argue to the contrary, Philadelphia citizens do have a great interest in this case. Appellees have compiled a voluminous record showing that appellants place significant amounts of advertising in Philadelphia and Pennsylvania each year. Appellants also receive revenue from the many Philadelphia citizens who visit each summer. (See exhibits A-UU attached to plaintiff’s answer in opposition to preliminary objections filed on August 15, 2011.) In Wright v. Aventis Pasteur, Inc., the court found that Philadelphia citizens did have an interest in a case involving seven Texas pharmaceutical companies that marketed their products in Philadelphia. 905 A.2d at 551. The same case also determined that, even though the Pennsylvania court would be required to follow Texas law, there was no basis “to conclude that the law determined to be applicable [was] beyond the ken of a Philadelphia trial judge.” Id. In the instant case, there are no difficult conflict of laws questions. A trial judge of this court is more than qualified to follow applicable New Jersey law.

Based upon a review of both the private and public elements, the motion to dismiss for forum non conveniens was correctly denied, and the case properly slated to remain in Philadelphia.

CONCLUSION

Based on the aforementioned, the trial court did not err in denying the motion of appellees to dismiss the case for forum non conveniens.


author: ZULICK, J.,

text:
    Pocono Mountain Charter School v. Pocono Mountain School District

      C.P. of Monroe County,
    No. 7363 CV 2009.

      Daniel M. Fennick and Marshall E. Anders, for plaintiff.

      John E. Freund, III and Ellen C. Schurdak, for defendant.
    January 24, 2013
   ZULICK, J.,

On August 6, 2009, the plaintiff, Pocono Mountain Charter School (hereinafter “Charter School”), filed a complaint against the defendant, Pocono Mountain School District (hereinafter “District”). The Charter School sought a declaratory judgment against the District asking the court to find that sixty-two conditions added to the 2006 renewed charter were in violation of the Charter School Law (hereinafter “CSL”). On October 30, 2009, the Charter School filed a motion for summary judgment and a brief in support thereof on March 18, 2010. On December 1, 2009, the District filed a response to the Charter School’s motion and a brief in support thereof on April 5, 2010. On April 7, 2010, the Honorable Linda Wallach Miller denied the Charter School’s motion for summary judgment.

On November 9, 2012, the District filed a motion for summary judgment and a brief in support thereof. On December 31,2012, the School filed a brief in opposition to the District’s motion. On January 7, 2013, both parties presented argument before this court.

DISCUSSION

The Charter School seeks relief in this case under the Declaratory Judgments Act, 42 Pa. C.S.A. 7531, et seq. In its response to the district’s motion for summary judgment, the Charter School contends that this court should take no action pending resolution of the appeal now pending before the State Charter School Appeal Board (hereinafter “CAB”). “One of the issues in the appeal pending before CAB is whether the imposed conditions contained in the charter are valid.” Charter School’s Brief in Opposition, pg. 6. The Charter School notes that the District advanced a similar argument in response to the Charter School’s 2010 motion for summary judgment, stating:

In fact, this is the exact reason that the school district opposed the charter schools motion for summary judgment in 2009...Specifically, the school district argued as follows:
The tribunal vested with exclusive jurisdiction of the appeal of the denial of a charter is the Charter Appeals Board...
(See school district “brief in response to notion for summary judgment,” April 4, 2010, pp. 2-6.)

Id. at 7.

Considering the role of the CAB under the CSL, 24 P.S. §17-1701, et seq., and the effect of that legislation on this court’s jurisdiction under the declaratory judgments act, this court is precluded from considering the parties’ claims in this declaratory judgment action.

I. Facts before the Court

The Charter School is a publicly-funded charter school which is organized under the CSL, 24 P.S. 17-1701-A, et seq. The district is a public school district organized under the Public School Code, 24 P.S. 1-101, et seq. On February 19,2003, the district issued a charter to the Charter School pursuant to the CSL.

The initial charter was for a period of three (3) years, expiring in June, 2006. In September 2005, the Charter School filed an application to renew the charter for an additional five (5) year period. The district undertook an investigation of the renewal application pursuant to the CSL, and, on June 4, 2006, granted a five (5) year renewal. However, the renewed charter issued by the district contained an additional sixty-two (62) conditions which were not present in the original. Both parties signed the renewed charter.

At a meeting of the district board of directors on May 21, 2008, the board voted to institute revocation proceedings against the Charter School’s charter. The revocation was premised on alleged violations of the charter, some of which were violations of the sixty-two conditions. Following approximately sixteen hearing sessions before the board, the district voted to revoke the charter on October 6, 2010.

The Charter School responded with an appeal to the CAB (Docket Number No. CAB 2010-06). This appeal was filed after this case was filed. Among the issues on appeal before the CAB are the validity of the revocation and the validity of the conditions included in the renewed charter. In October, 2011, the CAB voted to reverse the district’s revocation. However, before a written opinion could be issued, the auditor general published an audit of the Charter School in February, 2012, echoing some of the district’s criticisms cited in the revocation. The district requested that the CAB reopen its proceedings to examine the auditor general’s findings, which it did.

Debra Wallet, a hearing officer, was specially appointed by the CAB to determine what additional evidence should be considered. Ms. Wallet received evidence in November, 2012, and is in the process of making a report to the CAB. Due to the supplemental proceedings triggered by the audit, the CAB has not issued a final decision on the Charter School’s appeal, including the legality of the additional conditions.

II. Declaratory Judgment

Section 7532 of the declaratory judgments act outlines the general scope of a court’s power to issue declaratory judgments. Section 7532 provides:

Courts of record, within their respective jurisdictions, shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect, and such declarations shall have the force and effect of a final judgment or decree.

42 Pa. C.S.A. § 7532. However, section 7541 provides for the subchapter’s construction. In pertinent part, section 7541(c) provides:

(c) Exceptions. — Relief shall not be available under this subchapter with respect to any:
(1) Action wherein a divorce or annulment of marriage is sought except as provided by 23 Pa.C.S. § 3306 (relating to proceedings to determine marital status).
(2) Proceeding within the exclusive jurisdiction of a tribunal other than a court.
(3) Proceeding involving an appeal from an order of a tribunal.

42 Pa. C.S.A. § 7541(c). “Whether a declaratory judgment action is within the exclusive control of another tribunal is determined then by the type of relief sought, not the subject matter involved.” Ruszin v. Com., Dept. of Labor & Industry, Bureau of Workers’ Compensation, 675 A.2d 366 (Cmwlth. Ct. 1996).

Matters involving disputes over charter schools fall within the exclusive jurisdiction of the CAB. The CSL, 24 P.S. § 17-1729-A, governs challenges to the nonrenewal or revocation of a charter. In pertinent part, Section 17-1729-A provides:

(d) Following the appointment and confirmation of the appeal board, but not before July 1, 1999, the charter school may appeal the decision of the local board of school directors to revoke or not renew the charter to the appeal board. The appeal board shall have the exclusive review of a decision not to renew or revoke a charter...
...(h) All decisions by the charter school appeal board shall be subject to appellate review by the Commonwealth Court.

24 P.S. § 17-1729-A(d) and (h).

The commonwealth court has reaffirmed the CAB’s exclusive province over matters involving charter schools. In Northside Urban Pathways Charter School v. State Charter School Appeal Board, 56 A.2d 80 (Cmwlth. Ct. 2012), the court asserted that the “Charter School Law expressly vests the CAB with jurisdiction over every significant decision involving a charter school.” Id. at 85. The court went on to justify its conclusion, stating:

In so holding, we are cognizant of our prior observation that “local school boards have a significant interest in whether charters are granted; indeed the legislative history contains frequent references to the bias of local school boards against charter schools.” West Chester Area School District v. Collegium Charter School, 760 A.2d 452, 461 (Pa.Cmwlth.2000). The legislature dealt with this inherent bias by ensuring that the CAB has jurisdiction to review every significant decision that could be made by a school district with respect to a charter school. Without the oversight of the CAB, school districts could restrict the creation and growth of charter schools, thereby defeating the legislative intent of providing parents and students with expanded choices in public education.

Id.

Additionally, the district in its April 4,2010, response to summary judgment, and the Charter School by reference thereto in its brief in opposition, refer to Mosaica Academy Charter School v. Com. Dept. of Educ., 813 A.2d 813 (Pa. 2002), in asking the court to delay its ruling. In Mosaica, our supreme court found that a school district may not proceed under the declaratory judgments act and bypass the procedures in the CSL by obtaining “a declaration from the Commonwealth Court that the charter was improperly granted.” Id. at 820. In so ruling, the court reasoned that:

[T]he declaratoiy judgments act, 42 Pa.C.S. §§ 7532-7541, expressly prohibits...[the district’s] challenge to the validity of the charter. Section 7541(c) precludes granting of relief with respect to any proceeding within the exclusive jurisdiction of a tribunal other than a court. Id. at § 7541(c)(2)...We have concluded that the CSL sets forth the procedure for the revocation of a charter by the local board of directors of the chartering district, with review of that decision falling within the exclusive authority of the CAB.

Id.

The Charter School indicates in its brief, and counsel for both parties conceded at oral argument, that there is currently an appeal pending before the CAB which will address, among other things, the validity of the conditions included in the renewed application. Both before the CAB and in this case, the Charter School seeks to have these conditions declared invalid.

As stated in Northside Urban Pathways Charter School, all significant decisions involving charter schools fall within the jurisdiction of the CAB. Whether conditions included in a charter are valid under the CSL is such a decision. In fact, the determination of the conditions’ validity in the case before the CAB may be determinative of the validity of the district’s revocation. Section 17-1729-A clearly gives the CAB exclusive jurisdiction over review of a school district’s decision to not renew or revoke a charter. Similar to the situation confronted by our supreme court in Mosaica, declaratory relief by the court of comm on pleas which interferes with the exclusive province of the CAB to decide significant matters relating to charter schools is improper.

Pennsylvania Rule of Civil Procedure 1032 provides, in pertinent part:

(b) Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter...the court shall order that the action be transferred to a court of the Commonwealth which has jurisdiction...but if that is not possible, then it shall dismiss the action.

Pa. R. Civ. P. 1032(b). “[Jurisdiction cannot be conferred on a Court or waived by the parties, and a court is duty-bound to raise the issue sua sponte.” Borough of Crafton v. Board of Property Assessments, Appeals and Review of Allegheny County, 298 A.2d 643, 646 (Cmwlth. Ct. 1972), rev’d on different grounds, 328 A.2d 819 (Pa. 1974).

This court lacks jurisdiction over this declaratory judgment action. The parties’claims and counterclaims under the declaratory judgments act will be dismissed.

ORDER

And now, this 24th day of January, 2013, upon consideration of the motion for summary judgment by the Defendant Pocono Mountain School District and brief in support thereof, the plaintiff’s brief and oral arguments, it is ordered:

1. That the defendant’s motion for summary judgment is denied; and

2. The case is dismissed for lack of jurisdiction pursuant to 42 Pa. C.S.A. § 7541(c)(2), precluding declaratory judgment relief when the proceeding is within the exclusive jurisdiction of a tribunal other than a court.


author: TERESHKO, J.,

text:
    Banaszewski v. Corbo Landscaping Co.
    C.P. of Montgomery County, 2012
    No. 2632

      Robert J. Mongeluzzi, Andrew Robert Duffy and Benjamin James Baer, for appellant

      Todd Alen Gray, for appellee Morbark Corp.; John Joseph Delany and Andrew Peter Campbell, for appellee Deacon Equip.
    January 28, 2013
   TERESHKO, J.,

Plaintiff, Amanda Banaszewski appeals from the order dated October 26, 2012, wherein this court granted defendant Morbark Corporation’s preliminary objections, thereby transferring venue to Montgomery County, Pennsylvania.

FACTUAL BACKGROUND

This action arises out of a motor vehicle accident, which occurred on September 23,2010. (complaint, ¶ 38). At approximately 3:30 PM on September 23rd, Gerald McGrory, an employee of defendant, Corbo Landscaping Corporation (hereinafter “Corbo”) was operating a 1990 GMC Topkick southbound on Dekalb Pike in Whitpain Township, Pennsylvania. (Complaint, ¶¶ 14-16, 32). The GMC Topkick was being used to tow a Blizzard 14 Brush Chipper. (Complaint, ¶ 15). The brush chipper was allegedly manufactured and sold by defendant, Morbark, Inc. (hereinafter “Morbark”) and serviced by defendant, Deacon Equipment Company (hereinafter “Deacon”).

At approximately 3:30 PM on September 23rd, plaintiff, Amanda Banaszewski was operating a 1999 Volkswagen Beetle travelling northbound on Dekalb Pike, Whitpain Township, Pennsylvania when the hitch connecting the brush chipper to the Topkick broke, releasing the brush chipper into the northbound lane of Dekalb Pike. (Complaint, ¶¶ 33-34, 36-37). The brush chipper then struck the driver’s side door of plaintiff’s vehicle, causing plaintiff to sustain injury. (Complaint, ¶¶ 38-39).

Plaintiff commenced this action by filing her complaint on August 24, 2012. (See docket). Defendant Corbo filed preliminary objections to plaintiff’s complaint on September 14, 2012. (See docket). Defendant Morbark filed preliminary objections to plaintiff’s complaint on September 19, 2012. (See docket). Plaintiff replied to defendants, Corbo and Morbark’s preliminary objections on October 4, 2012 and October 9, 2012, respectively. (See docket). On October 26, 2012, this court sustained both defendants’ preliminary objections and transferred the action to Montgomery County. (See docket).

On November 20, 2012, plaintiff appealed this court’s order of October 26,2012, granting Morbark’s preliminary objections. (See docket). OnNovember 26,2012, this court ordered plaintiff to file her 1925(b) concise statement of errors complained of on appeal. (See docket). Plaintiff complied with this court’s order on December 17, 2012. (See docket).

The sole issue to be addressed on appeal is whether this court erred by sustaining defendant Morbark’s preliminary objections and transferring venue to Montgomery County.

LEGAL ANALYSIS

Pennsylvania law vests the trial court with considerable discretion in making the determination whether or not to grant a petition to transfer venue. Purcell v. Bryn Mawr Hospital, 525 Pa. 237, 242, 579 A.2d 1282, 1284 (1990). The standard of review in such cases is abuse of discretion. Id. Provided that the trial court’s decision to transfer venue is a reasonable one in light of the record it will not be overturned. Monaco v. Montgomery Cab Co., 417 Pa. 135, 143, 208 A.2d 252, 256 (1965). It is not enough for an appellant to persuade an appellate court that it might have come to a different result. McCrory v. Abraham 441 Pa. Super. 258, 261, 657 A.2d 499, 501 (1995). The burden rests on the appellant to show that the trial court misapplied or overrode the law or the decision was manifestly unreasonable, or resulted from partiality, prejudice, bias or ill will. Id. “If there exists any proper basis for the trial court’s decision to grant the petition to transfer venue, the decision must stand.” Masel v. Glassman, 456 Pa. Super. 41, 45, 689 A.2d 314, 316 (1997).

Corporations have a constitutional right to petition the court for a change of venue. Purcell v. Bryn Mawr Hospital, 525 Pa. 237, 242, 579 A.2d 1282, 1284 (1990) citing Felts v. Delaware, Lackawanna and Western R.R., 195 Pa. 21, 45 A. 493 (1900). Pennsylvania Rule of Civil Procedure 2179 governs where venue may be laid against a corporation. Rule 2179 states in relevant part:

[A] personal action against a corporation or similar entity may be brought in and only in:
(1) the county where its registered office or principal place of business is located;
(2) a county where it regularly conducts business;
(3) the county where the cause of action arose;
(4) a county where a transaction or occurrence took place out of which the cause of action arose, or
(5)a county where the property or a part of the property which is the subject matter of the action is located provided that equitable relief is sought with respect to the property

Pa. R.C.P. 2179(a) (2008)(emphasis added).

In applying this rule, we first observe that Montgomery County is the principal place of business for defendant, Corbo. The principal place of business for defendant, Deacon is Bloomsburg, Pennsylvania, which is located in Columbia County. Morbark is a corporation existing under the laws of the state of Michigan, with its principal place of business located in Winn, Michigan. Because the accident occurred in Montgomery County, and no evidence exists to show that the accident arose out of any transaction or occurrence outside of Montgomery County, the issue at hand becomes whether any of the defendants “regularly conduct business” in Philadelphia County.

In order to prove that an entity regularly conducts business, plaintiff must prove that the business engaged in is of a sufficient quantity and quality to provide venue in the specific forum. Shambe v. Delaware & Hudson R.R. Co., 288 Pa. 240, 246, 135 A. 755, 757 (1927). “The term ‘quality of acts’ means those directly furthering or essential to, corporate objects; they do not include incidental acts. By ‘quantity of acts’, is meant those which are so continuous and sufficient to be termed general or habitual. A single act is not enough.” Id. at 247, 757-58. The court must distinguish between acts which merely aid a main purpose, and those necessary to its existence. Id. at 248, 758. The former are collateral or incidental, while the latter are direct. Id. Each case must depend on its particular facts. Id. at 247, 757-58.

Pursuant to Pennsylvania Rules of Civil Procedure 1006(c)(1), in an action to enforce joint and several liability against two or more defendants, venue is proper in any county in which venue may be laid against any one of the defendants. Therefore, if any one of the defendants regularly conduct business in Philadelphia, venue is proper in Philadelphia County as to all three defendants.

1. Corbo

Venue in Philadelphia County is not proper as to defendant Corbo because defendant Corbo does not regularly conduct business in Philadelphia County.

Defendant Corbo does not maintain a sales office, place of business, maintenance facility or real estate in Philadelphia County. (Affidavit of Peter Corbo, attached as exhibit “B” to defendant Corbo’s preliminary objections).

Corbo’s sales figures demonstrate that any business conducted in Philadelphia County is minimal; the quantity of sales fails to meet the threshold for venue to be deemed proper in Philadelphia County. In 2007, Corbo had $800 in receipts from Philadelphia County and annual gross sales of $1,307,091; therefore, Corbo’s business transactions in Philadelphia amounted to .000612% of Corbo’s total business conducted in 2007. (Affidavit of Peter Corbo, attached as exhibit “B” to defendant Corbo’s preliminary objections). In 2008, Corbo had $6,300 in receipts from Philadelphia County and gross sales of $1,094,140; therefore, Corbo’s business transactions in Philadelphia amounted to .0057579% of Corbo’s total business conducted in 2008. (Affidavit of Peter Corbo, attached as exhibit “B” to defendant Corbo’s preliminary objections). In 2009, Corbo had $4,440 in receipts from Philadelphia County and annual gross sales of $1,172,499; therefore, Corbo’s business transactions in Philadelphia amounted to .0037867% of Corbo’s total business conducted in 2009. (Affidavit of Peter Corbo, attached as exhibit “B” to defendant Corbo’s preliminary objections). In 2010, Corbo had $455 in receipts from Philadelphia County and annual gross sales of $1,177,595; therefore, Corbo’s business transactions in Philadelphia in 2010 amounted to .0002559% of Corbo’s total business conducted in 2010. (Affidavit of Peter Corbo, attached as exhibit “B” to defendant Corbo’s preliminary objections). In 2011 and through September 12, 2012, Corbo did not conduct any business in Philadelphia County. (Affidavit of Peter Corbo, attached as exhibit “B” to defendant Corbo’s preliminaiy objections).

Corbo has established that it does not regularly conduct business in Philadelphia County; therefore, venue is not proper in Philadelphia County as to defendant Corbo.

2. Morbark

Venue in Philadelphia County is not proper as to defendant Morbark because defendant Morbark does not regularly conduct business in Philadelphia County.

Morbark is a corporation existing under the laws of the state of Michigan, with its principal place of business located at P.O. Box 1000, Winn, Michigan. (Morbark’s preliminary objections, ¶ 7). Morbark has three authorized dealers within the Commonwealth of Pennsylvania, which are located in Columbia, Montgomery and Wayne Counties. (Affidavit of Debra Lehman, attached as exhibit “A” to defendant Morbark’s preliminary objections).

Plaintiff’s complaint alleges that Morbark maintains a registered office at 123 South Broad Street, Philadelphia, PA 19109. (Complaint, ¶ 7). However, as Debra Lehman, Treasurer and Vice President of Finance for Morbark, Inc., states in her affidavit, the Philadelphia office cited in plaintiff’s complaint is registered to Morbark Industries, Inc., an expired business entity, which terminated in 2005 and is no longer in operation. (Affidavit of Debra Lehman, attached as exhibit “A” to defendant Morbark’s preliminary objections). Attached to Ms. Lehman’s affidavit is the certificate of amendment to the articles of incorporation stating that Morbark Industries, Inc. would iterminate as of August 31, 2005. (Exhibit “2” to affidavit of Debra Lehman, attached as exhibit “A” to defendant Morbark’s preliminary objections).

Morbark has established that it does not regularly conduct business in Philadelphia County; therefore, venue is not proper in Philadelphia County as to defendant Morbark.

3. Deacon

Plaintiff alleges in her complaint that Deacon is an exclusive dealer of Morbark’s industrial equipment in Pennsylvania and that defendant Deacon serviced, maintained, repaired and/or inspected the brush chipper that collided with plaintiff’s vehicle on September 23, 2010. (Complaint, ¶¶ 48-49). Plaintiff’s complaint, however, fails to set forth any basis for this court’s jurisdiction over Deacon. Plaintiff’s complaint states:

5. Defendant Deacon Equipment Company, (hereinafter referred to as “Deacon”), is a Pennsylvania corporation or other business entity existing under the laws of the Commonwealth of Pennsylvania with its principal place of business located at 22 Wedgetown Road, Bloomsburg, PA 17815.
6. At all relevant times, defendant Deacon, was acting by and through its agents, servants and/or employees who were acting within the course and scope of their agency, service and/or employment with defendant Deacon

As plaintiff states in her complaint, Deacon’s principal place of business is located outside of Philadelphia County. In order to establish venue, plaintiff was required to assert that Deacon regularly conducts business in Philadelphia County as none ofthe other prongs set forth in Pennsylvania Rule of Civil Procedure 2179 apply. Plaintiff failed to do so anywhere within her complaint, in even the most general terms, and the time to amend her complaint within the statute of limitations has passed; therefore, this court cannot assert jurisdiction over Deacon.

Consequently, because venue cannot be laid against any of the defendants in Philadelphia County, the action should properly proceed in Montgomery County.

CONCLUSION

For the foregoing reasons, this court respectfully requests that the October 26, 2012 order granting defendant Morbark Corporation’s preliminary objections and transferring the case to Montgomery County Court of Common Pleas be affirmed.

      . The date Peter Corbo executed the affidavit attached as exhibit “B” to defendant Corbo’s preliminary objections.


author: WILLIAMSON, J.,

text:
    Domiano v. Penn Security Bank

      C.P. of Monroe County,
    No. 2160 CIVIL 2012.

      Stephen G. Bessett, for plaintiffs.

      Myles R. Wren, for defendant.
    January 29, 2013
   WILLIAMSON, J.,

Plaintiffs commenced this action by filing a complaint on April 23, 2012. Defendant filed preliminary objections to plaintiffs’ complaint on May 21, 2012, and a brief in support thereof on November 5,2012. Plaintiffs filed a brief in opposition to defendant’s preliminary objections on December 31, 2012. Defendant filed a reply brief on January 4, 2013. Oral argument was heard before the court on January 7, 2012. We are now ready to dispose of the preliminary objections.

Plaintiffs entered into a settlement agreement with defendant on May 21,2010 to re-acquire properties which were the subject of Federal Bankruptcy proceedings. The settlement agreement, among other things, states that:

Withm(60)daysfromthedateofanyrequiredBankruptcy Court approval of this agreement, the debtors shall provide the Bank with a (“written commitment”) from a recognized lending institution agreeing to provide the debtors with the financing necessary to pay the bank the hereinafter defined Scranton property settlement amount. Provided the debtors timely provide the bank with the written commitment and should debtors pay the bank one hundred, forty five thousand (145,000.00) dollars, (“Scranton property settlement amount”) within (120) days from the date of this agreement, the bank agrees to a.) release the Scranton property from the first Pocono mortgage and the second Pocono mortgage; b.) discontinue the Lackawanna County foreclosure action and c.) return the consent to entry of judgment in the Lackawanna County mortgage foreclosure action and the deed to the debtors.

The settlement agreement goes on to state that:

If the debtors (a) fail to provide the bank with the written commitment within the time they are required to do so; or (b) fail to timely pay the bank the Scranton property settlement amount within the time they are required to do so, the debtors shall immediately be in default hereunder.

(Settlement agreement. Compl. exhibit A. pgs. 4-5.) (emphasis added)

The plaintiffs herein were the “debtors” referenced in the settlement agreement. In their complaint, plaintiffs allege that agents for the defendant made representations that the property would be conveyed to the plaintiffs upon receipt of the written commitment of financing. Plaintiffs allege that they complied will all material aspects of the aettlement agreement and delivered a mortgage commitment letter to the defendant, (See Compl. Exhibit C.) and now the defendant has arbitrarily refused to comply with the terms of the settlement agreement. As plead, plaintiffs’ complaint does not support a cause of action.

The defendant’s preliminary objections are pled generally as Pennsylvania Rule of Civil Procedure 1028 objections. Defendant’s first preliminary objection is that plaintiffs’ allegation of contract or quasi contract with unsigned supporting documents in count I and count II do not and could not support a cause of action. Defendant’s second preliminary objection is that the complaint must be dismissed, since any document relied upon by the parties in support of their contract litigation must be attached and fully supported by executed documents.

DISCUSSION

In ruling on preliminary objections, “all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences deducible therefrom, must be accepted as true.” Wurth by Wurth v. City of Philadelphia, 584 A.2d 403, 407 (Pa. Cmwlth. 1990). The “court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinions.” Penn Title Ins. Co. v. Deshler, 661 A.2d 481, 483 (Pa. Cmwlth. 1995).

I. Demurrer for Insufficiency of Pleading Pursuant to Pa.R.C.P. 1028(a)(4)

Defendant’s preliminary objections are couched in the language of a demurrer for insufficiency of pleading. A demurrer may be sustained only if it is clear on the face of the pleading that the law will not provide or permit the recovery sought. Morgan v. McPhail, 672 A.2d 1359 (Pa. Super. 1996). If there is any doubt, it should be resolved by overruling the demurrer. Mellon Bank N.A. v. Fabinyi, 650 A.2d 895 (Pa. Super. 1994). Sometimes, the standard of review for a demurrer is whether or not the facts alleged establish a prima facie case. Weber v. Bell Telephone Company, 203 A.2d 554, 556 (Pa. 1964).

Simply put, defendant asserts that the complaint does not set forth a cause of action because the plaintiffs attach unsigned supporting documents. In particular, the defendant points to the unsigned letter from Penn Business Credit, LLC to plaintiffs. (Compl. exhibit C). In support of this argument, defendant cites Target National Bank v. Kilbride, 10 Pa. D&C. 5th 489 (Centre County 2010). In Target National Bank, the Centre County Court of Common Pleas granted defendant’s preliminary objection pursuant to Pa. R.C.P. 1019 (b) and 1019 (i) because the plaintiffs did not attach the signed writing to its pleading, nor did the plaintiffs set forth a reason for failing to attach the writing. Pa. R.C.P. 1019(i) states:

(i) When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing.

Pa.R.C.P. 1019(i)

In this case, plaintiffs ’ claim isbaseduponthe defendant’s alleged breach of the settlement agreement. The settlement agreement is signed and attached to the complaint. There is no 1019(i) violation in regards to the settlement agreement. Defendant argues that Target National Bank and similar cases should be interpreted that any writing attached to the complaint, that advances the cause of action therein must be signed. We agree. Plaintiffs’ complaint is based upon two writings; the settlement agreement and the Penn Business Credit, LLC commitment letter. Here, plaintiffs attached the Penn Business Credit, LLC letter unsigned, and did not state the reason that it was unsigned. In their brief, plaintiffs argues that defendant is in possession of the signed letter. If that were true, it is unclear how the plaintiffs do not have a copy of the signed letter to attach. Therefore, defendant’s second preliminaiy objection is granted for the above stated reasons. This however, is not the end of our discussion, because it is clear on the face of the complaint that the law will not provide the plaintiffs for the recovery sought.

The settlement agreement, attached to the plaintiffs’ complaint as Exhibit A, is signed by both parties. The settlement agreement lists the terms of the agreement between both parties in clear terms. Plaintiffs had 60 days from May 21, 2010 to provide the defendant with a written commitment letter. The commitment letter from Penn Business Credit, LLC, attached to the complaint as Exhibit C, has a date of August 18, 2010, or 89 days from May 21, 2010. Without looking at the contents of the letter from Penn Business Credit, LLC, it is clear that plaintiffs defaulted on their settlement agreement with defendants, and therefore cannot sue for non-performance of an agreement in which they are expressly in default.

Furthermore, the contents of the letter support the defendant’s demurrer. The settlement agreement requires a written commitment from a recognized lending institution agreeing to provide the debtors with the financing necessary to pay the bank the hereinafter defined Scranton property settlement amount. The first and last paragraphs of the Penn Business Credit, LLC letter clearly demonstrate that Penn Business Credit, LLC was merely negotiating with the plaintiffs over the process of providing them with financing. The Penn Business Credit, LLC letter does not comply with the terms of the settlement agreement. The first paragraph states the following:

... I am writing to outline the terms and conditions of a proposed credit facility, which we may be willing to make available to your company, subject to further investigation on our part. The actual facility can only be provided upon execution of all required loan documents and the payment of specified fees in connection with your transaction.

(Compl. exhibit C) (emphasis added)

The last paragraph states the following:

We appreciate the opportunity to provide you with this financing. If you would like to proceed with us, please countersign this term sheet where indicated below and return it by overnight mail together with your check in the amount of $10,000.00

(Compl. exhibit C)

Even if the letter was signed, plaintiffs’ complaint would still not survive demurrer. The letter expressly states that in order to proceed towards the final agreement, the letter has to be signed and returned with a check. There is no copy of a check for $10,000 attached to the complaint, nor do plaintiffs allege that they ever tendered that amount to Penn Business Credit, LLC. It also does not appear in the document, nor is it alleged in the complaint, that the plaintiffs signed and returned the letter to Penn Business Credit, LLC.

The settlement agreement is a contract that calls for the performance of the defendant once the plaintiffs meet certain conditions. Plaintiffs did not meet those conditions, as is evident in their complaint. Plaintiffs’ complaint must be dismissed because it does not establish a prima facie case of breach of contract or quasi contract. Therefore, we issue the following order.

ORDER

And now, January 29, 2013, after consideration of the preliminary objections of defendant, and following oral argument, it is ordered as follows:

1. Defendant’s preliminary objections in the nature of a demurrer is granted.
2. Plaintiffs’ complaint is hereby dismissed with prejudice.

      . It should be noted that plaintiffs’ complaint, in paragraph 4, lists the date of the settlement agreement as May 21, 2011, however, the docketing information on the bottom of the document itself, lists the date as 5/21/10. Therefore, we will treat the May 21, 2011 date listed in the complaint as a typo.


author: TUCKER, J.,

text:
    OneWest Bank FSB v. Quach

      Louis S. Schwartz, for appellant.

      Terrence J. McCabe, Marc S. Weisberg, Edward D. Conway and Margaret Gairo, for appellee.
    February 12, 2013
   TUCKER, J.,

I. PROCEDURAL HISTORY & FACTS

This matter comes before the court from a denial of Lee Quach’s (hereinafter referred to as “appellant”) motion to set-aside sheriffs sale filed in the Philadelphia County Court of Common Pleas. The relevant facts are as follows:

On March 30, 2007, appellant entered into a mortgage with IndyMac Bank FSB for a property located in Philadelphia, PA; Mortgage Electronic Registration Systems, Inc. (“MERS”) served as nominee for lender IndyMac Bank FSB. Compl. filed (09/08/2009). Thereafter, MERS, as nominee for lender IndyMac Bank, assigned its interest in the subject property to One West Bank FSB (hereinafter referred to as “appellee”). Id. On September 8,2009, appellee filed a complaint in mortgage foreclosure against appellant for the subject property. Id. The complaint was reinstated on October 16, 2009 and again on November 19,2009. Praecipe to reinstate compl. (10/16/2009); Praecipe to reinstate compl. (11/19/2009).

Appellant filed Chapter 11 Bankruptcy on January 4, 2010, triggering an automatic stay of proceedings. Answer (motion/petition) filed (08/21/2012). Appellee entered judgment by default against appellant on January 5,2010. J. by default/final disp. (01/05/2010). On April 13, 2010, the Bankruptcy Court issued a consent order allowing appellant to make regular payments; appellant defaulted on this consent order. Answer (motion/petition) filed (08/21/2012). The Bankruptcy Court thereafter issued an order on July 21, 2010 lifting the automatic stay to allow appellee to proceed with foreclosure proceedings. Id. Appellee caused the default judgment against appellant to be vacated on July 29, 2010. J. vacated (07/29/2010).

On August 3, 2010, appellee reentered judgment by default against appellant. J. by default/final disp. (08/03/2010). Appellee attempted to proceed with a foreclosure sale of the subject property. Praecipe to issue writ filed (10/07/2010). The Bankruptcy Court reinstated the automatic stay at the petition of appellant on December 29, 2010. Answer (motion/petition) filed (08/03/2010). Appellant’s bankruptcy case was ultimately dismissed on January 11,2012. Id.

On July 31, 2012 appellant filed a petition to open judgment. Petition to open judgment (07/31/2012). Appellant filed a motion to postpone a sheriffs sale on August 1, 2012. Mot. postpone sheriffs sale (08/01/2012). The court granted the petition to postpone the sheriffs sale until October 2, 2012 on August 6, 2012. Order entered by J. Tucker (08/06/2012). Both parties were expressly warned that this would be the final postponement of the sheriffs sale, except by agreement. N.T. at 4:12-23 (08/06/2012).

Appellant’s petition to open judgment was denied by the court on September 20, 2012. Order entered by J. Tucker (09/20/2012). The sheriffs sale proceeded on October 2, 2012. Answer (mot. pet.) filed (10/26/2012). On October 5, 2012, appellant filed a motion to set-aside a sheriffs sale. Mot. set aside sheriff’s sale (10/05/2012); answer (mot. pet.) filed (10/26/2012).

The court denied appellant’s motion to set-aside sheriff’s sale on November 21, 2012; Appellant filed a timely appeal of the court’s November 21, 2012 order on December 14, 2012. Order entered by J. Tucker (11/21/2012); appeal to Superior Court (12/14/2012). The court ordered appellant to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b) (“1925(b) statement”). On January 4, 2013, appellant filed a 1925(b) statement. Statement of matters (01/04/2013). The court will not reproduce the 1925(b) statement per its usual custom. A discussion ensues:

II. LEGAL ANALYSIS

a. Appellant has waived all issues on appeal not properly raised in accordance with Pa.R.A.P. 1925(b).

It is well settled that when the trial court orders an appellant to submit a 1925(b) statement, it is a crucial component of the appellate process. Commonwealth v. Lord, 553 Pa. 415, 417 (1998). Pa.R.A.P. 1925(b) requires that the statement of issues complained of shall be concise and set forth only those rulings or errors that appellant intends to challenge. Pa.R.A.P. 1925(b)(4)(i). This rule guards against lengthy and incoherent statements that impede appellate review. Dorazio v. Equip. Corp. of Am., 2009 Phila Ct. Com. Pl. LEXIS 80 (Phila. Com. P. LEXIS June 4, 2009). Issues not raised in accordance with the provisions of Pa.R.A.P. 1925(b) are waived. Pa.R.A.P. 1925(b)(4)(vii). Although the number of issues, standing alone, is not grounds for finding such waiver, the issues raised in the 1925(b) statement must be “non-redundant” and “non-frivolous.” Pa.R.A.P. 1925(b)(4)(iv).

It is also well settled that when the trial court orders an appellant to submit a 1925(b) statement, that statement must indicate, with specificity, the error to be addressed on appeal. Commonwealth v. McCree, 857 A.2d 188,1 92 (Pa. Super. 2004) (emphasis added). This rule guards against vague statements which require the court to guess which issues are being raised on appeal. Id. Such vague and nonspecific 1925(b) statements do not provide enough for the court to conduct a meaningful review of the issues, and are the functional equivalent of no 1925(b) statement at all. Commonwealth v. Dowling, 778 A.2d 683, 686-87(Pa. Super. 2001). Furthermore, even if by chance the trial court correctly guesses the issues appellant raises on appeal and writes an opinion pursuant to that supposition, the issues are still waived. Commonwealth v. Heggins, 809 A.2d 908, 911 (Pa. Super. 2002).

Here, appellant filed a four (4) page, five (5) paragraph 1925(b) statement with multiple subparts of errors allegedly committed by the court. The alleged errors are redundant, frivolous, and nonspecific and amount to a recitation of the underlying facts in this matter. Pursuant to Pa.R.A.P. 1925(b), appellant was directed to only state the specific rulings or errors allegedly committed by this court related to his motion to set aside sheriff’s sale. Pa.R.A.P. 1925(b). Therefore, the court will not attempt to decipher appellant’s 1925(b) statement to glean which issues are non-redundant and/or non-frivolous. Heggins, 809 A.2d at 911-12. Appellant’s inability to comply with Pa. R.A.P. 1925(b) has precluded this court from providing a meaningful review of its claims and therefore its claims are waived. Id.

b. Appellant did not meet his burden of proving circumstances warranting the exercise of the court’s equitable powers to set aside the sheriff’s sale of appellant’s home.

Notwithstanding waiver of issues on appeal, the court will attempt to address its ruling on the motion to set-aside sheriffs sale. Pursuant to the Pa.R.C.P. 3132, “upon petition of any party in interest before delivery of the personal property or of the sheriffs deed to real property, the court may, upon proper cause shown, set aside the sale and order a resale or enter any other order which may be just and proper under the circumstances.” Pa.R.C.P. 3132. The purpose of a sheriff’s sale in mortgage foreclosure proceedings is to “realize out of the land, the debt, interest, and costs which are due, or have accrued to, the judgment creditor.” Kaib v. Smith, 684 A.2d 630, 632 (Pa. Super. 1996). Petitions to set-aside sheriff’s sale are governed by equitable principles. Doherty v. Adal Corp., 261 A.2d 311, 312-313 (Pa. 1970). Accordingly, the petitioner, or in this case the appellant, has the burden of proving circumstances warranting the exercise of the court’s equitable powers. Bornman v. Gordon, 527 A.2d 109, 111 (Pa. Super. 1987). A petition to set-aside a sheriffs sale may be denied where the petitioner provides insufficient proof to support the allegations in the petition. Id.

Here, appellant argues: 1) that the sale should be set-aside because he was in good-faith negotiations with appellee in the days prior to the sale; 2) that the sale price was grossly inadequate, and 3) that appellee would not be prejudiced by setting aside the sale as appellant was prepared to pay all arrearages. The court will address each of these contentions in turn.

(1) Good Faith Negotiations

Appellant argues that he did not file an emergency motion to postpone the sheriff’s sale, thereby forcing him to file the instant motion to set-aside sale, because he was relying on representations made by appellee. Specifically, appellant claims that appellee represented to him that either a decision would be made on appellant’s mortgage modification prior to the October 2, 2012 scheduled sale, or, that if a decision was not made by the scheduled sale date, that appellee would agree to voluntarily postpone the sale. Mot. to set-aside (10/05/2012).

Appellee denies making any representation to appellant that a decision would be made on the application for modification prior to sale. Ans. (mot./pet.) filed (10/26/2012). Appellee also denies representing to appellant that the sale would be postponed in order to further review the application. Id. Furthermore, appellee contends appellant’s application was incomplete at the time of the scheduled sale; and as such, appellant had no reasonable basis upon which to assume that a decision would be made. Id. Lastly, appellee contends that appellant’s failure to move to postpone the sheriffs sale was in fact due to the court’s prior order of August 06, 2012 and hearing thereof. Id.

Therecordisclearthatappelleesentappellantadisclosure statement, a copy of which was included as Exhibit A in appellee’s answer to the petition to set aside sheriffs sale, stating that there was no guarantee that the evaluation of an application for modification received less than thirty-seven (37) business days prior to the scheduled sale would be completed and prior to foreclosure sale. Answer (mot./pet.) filed (10/26/2012). The disclosure statement also provides that the submission of an application for modification does not suspend foreclosure proceedings. Id. In addition, the record is clear that appellant was attempting to supplement his modification application with additional information from his accountant as late as two (2) days prior to the scheduled sale. Answer (mot./pet.) filed (10/26/2012); Mot. to set-aside (10/05/2012). Lastly, the record is clear that the court provided appellant with notice by both order and at oral argument on appellant’s previous motion to postpone sheriffs sale that no further postponements would be granted:

The Court: I’m going to postpone it until October 2nd for selfish reasons so you don’t have to come back here next month. But understand there will be no more postponements except by agreement. And, again, my
suggestion is to everyone, if there is a postponement today, that you start working on this this afternoon, because when you come back, it’s going to be denied.

Counsel for Appellant: Understood.

N.T. at 4:12-23 (08/06/2012); order entered by J. Tucker (08/06/2012).

While appellant provided evidence of communications from appellant to appellee during the time period between the postponement of the sale and the date of sale, no evidence was provided of any communication from appellee to appellant regarding either when a decision would be made, or another possible postponement of the scheduled sale. Mot. to set-aside (10/05/2012). As such, appellee has failed to meet his burden of proof of showing proper cause for the court to exercise its equitable powers to set-aside the sheriff’s sale.

(2) Grossly Inadequate Sale Price

Pennsylvania law is clear that the mere inadequacy of sale price is not a sufficient basis upon which to set-aside a sheriffs sale. Scott v. Adal Corp., 509 A.2d 1279, 1283 (Pa. Super. 1986). However, a sheriffs sale may be set-aside where the result is a grossly inadequate sale price. Id. While it is well settled that the price received at a duly advertised public sale, as here, is the highest and best price obtainable, a sale price may be grossly inadequate where the percentage of sale price is excessively diminutive compared to the established market value of the property. Bank of America, N.A. v. Estate of Hood, 41 A.3d 1208, 1211 (Pa. Super. 2012)(citing Blue Bell Nat’l Bank v. Balmer, 810 A.2d 164, 166-167 (Pa. Super. 2002). For example, a sale price of roughly ten percent or less of the established market value has been deemed grossly inadequate. Id. at 1212. The court must also consider the outstanding mortgage debt when determining whether the sale price was grossly inadequate. Vend-A-Matic, Inc. v. Frandford Trust Co., 442 A.2d 1158 (Pa. Super. 1982).

Here, appellant argues that the sale price was grossly inadequate. Appellant failed to offer any evidence of gross inadequacy or otherwise establish this claim. Mot. to set-aside sheriff sale (10/05/2012). The fair market value of the property in this matter was valued, by appellee, at two hundred and thirty-one thousand nine hundred and twenty-two dollars ($231,922.00). Answer (motion/ petiton) filed (10/26/2012). The property sold to appellee at sheriff’s sale for one hundred and fifty thousand dollars ($150,000.00). Mot. to set-aside (10/05/2012). The sale price represents sixty-four and six tenths percent (64.6%) of the market value.

Appellant in his statement of matters complained of contends that the property is in fact worth in excess of four hundred thousand dollars ($400,000.00). 1925(b) statement (01/04/2013). The court notes that appellant offers his own valuation of the property for the first time on appeal. Mot. to set aside sheriff sale (10/05/2012). As such, all allegations of error or amounts offered for valuation brought up in the first instance in the 1925(b) statement are deemed waived. Vend-A-Matic, Inc., 442 A.2d at 1162 (citing Herskovitz v. Vespico, 362 A.2d 394 (Pa. 1976)).

Nevertheless, even if arguendo, appellant’s claimed value of the property was taken as accurate, a proposition for which there is no evidentiary support, the sale price of one hundred and fifty thousand dollars ($150,000.00) still represents thirty-seven and one-half percent (37.5%) of four hundred thousand dollars ($400,000.00), which far exceeds the traditionally recognized threshold for gross inadequacy of sale price. Estate of Hood, 47 A.3d at 1211. In addition, the outstanding mortgage debt was two hundred sixty thousand one hundred and seventy-five dollars and ninety-five cents ($260,175.95). Mot. to set-aside (10/05/2012); Answer (motion/petiton) Filed (10/26/2012). Considering the outstanding mortgage, the sale price of one hundred fifty thousand dollars ($150,000.00) was not grossly inadequate. Appellant has thus failed to establish that the sale price reaches the level of gross inadequacy as recognized by the Pennsylvania courts. The court did not err in refraining from granting appellant equitable relief on these grounds. His claim must fail.

(3) Appellant’s Ability to Pay all Arrearages

Finally, appellant claims that the court should have granted his motion to set aside sheriffs sale because he was prepared to pay all arrearages; and because appellee would not be prejudiced by setting aside the sale. Appellant is essentially arguing that he has a right of redemption. Mot. to set-aside sheriff sale (10/05/2012). The mere ability to pay the amount owed does not entitle a mortgagor to stop the occurrence of a sheriffs sale. To suggest so would be to suggest a right of redemption in mortgage foreclosure for which the appellant has not provided a legal basis. Further, appellant has not provided any evidentiary support for his claim that he is prepared to pay the arrearages owed on the mortgage. Mot. to set-aside sheriff sale (10/05/2012). In short, the appellant’s last claim has no basis in law or fact, therefore appellant failed to meet his burden of showing proper cause for the court to exercise its equitable powers to set aside the sheriffs sale in this matter.

III. Conclusion

Appellant failed to comply with Pa.R.A.P. 1925(b); therefore his claims on appeal are deemed waived. Furthermore, the court did not err in denying appellant’s motion to set-aside sheriff’s sale because appellant did not meet his burden of showing proper cause as to why the court should exercise its equitable powers to set aside the sheriffs sale in this matter. The court’s ruling should stand.


author: TERESHKO, J,

text:
    Knight v. Springfield Hyundai

      William Charles Bensley, for appellant.

      Tamara Chasan, for appellants.
    February 13, 2013
   TERESHKO, J,

Plaintiff, Beverly Knight appeals from this court’s orders entered May 28, 2010 sustaining defendants Springfield Hyundai and Drive Financial’s preliminary objections, thereby transferring the matter to binding arbitration in addition to this court’s order of September 27, 2012 denying plaintiff’s petition to vacate arbitration award and the court’s May 28, 2010 orders.

FACTUAL BACKGROUND

The instant matter arises out of a buyer’s order and Retail Installment Sales Contract entered into on February 19,2008 for plaintiff’s purchase of a 2007 Hyundai Sonata. (Amended complaint, ¶ 31). Plaintiff’s complaint alleges various misrepresentations and omissions by defendants regarding the condition of the vehicle as well as the terms of the subject agreement, i.e. odometer fraud, charging unlawful fees, and misrepresenting the vehicle’s accident and ownership history. (Amended complaint, ¶¶ 30-50). These misrepresentations and omissions form the basis of plaintiff’s claims for fraud, breach of contract, negligence, negligent misrepresentation, breach of fiduciary duty, violations of the Uniform Commercial Code, conversion, violations of the Fair Credit Extension Uniformity Act, and violations of the Unfair Trade Practices Act.

Plaintiff commenced this action by filing her complaint on February 16, 2010. (See docket). Springfield Hyundai filed preliminary objections to plaintiff’s complaint on March 15, 2010. (See docket). Plaintiff filed an amended complaint on April 5,2010, and Springfield Hyundai filed a second set of preliminary objections on April 22, 2010. (See docket). Drive Financial filed preliminaiy objections to plaintiff’s complaint on May 4, 2010. (See docket). Plaintiff filed answers to pringfield Hyundai and Drive Financial’s preliminary objections on May 12, 2010 and May 24, 2010, respectively. (See docket).

On May 28, 2010, this court sustained both sets of preliminary objections and transferred the case to binding arbitration. (See docket). On June 8, 2010, plaintiff filed a motion for reconsideration of this court’s May 28, 2010 orders, and Drive Financial and Springfield Hyundai filed an answer to plaintiff’s motion for reconsideration on June 29,2010. (See docket). On July 1,2010, this court marked plaintiff’s motion for reconsideration moot as the appeal period had passed. (See docket).

The arbitrator entered an award on December 29, 2011 in favor of plaintiff and against Springfield Hyundai in the amount of $2,985.70. (Plaintiff’s petition to vacate arbitration award and the court’s May 28,2010 order, ¶7). The arbitrator also gave defendants a set off of $2014.29 and ordered them to pay the AAA administrative fees of $1275.00 and the arbitrator’s fee of $750.00 and to reimburse the plaintiff $375.00 for prepaid fees. Id. On January 30, 2012, plaintiff filed a motion to vacate the arbitration qward and the court’s May 28, 2010 orders, and Drive Financial and Springfield Hyundai filed an answer in opposition of the motion to vacate on February 21,2012. (See docket). On September 27,2012, this court denied plaintiff’s motion to vacate the arbitration award and its orders of May 28, 2010. (See docket).

On October 24, 2012, plaintiff appealed this court’s orders: granting Springfield Hyundai’s preliminary objections and transferring the matter to binding arbitration, granting Drive Financial’s preliminary objections and transferring the matter to binding arbitration, and denying plaintiff’s motion to vacate the arbitration award and this court’s orders of May 28, 2010 transferring the matter to binding arbitration. (See docket). This court ordered plaintiff to file her concise statement of matters complained of on appeal on November 5, 2012, and plaintiff complied on November 23,2012. (See docket).

The issues to be addressed on appeal are:

1) whether this court erred by transferring the action to binding arbitration where plaintiff signed a buyer’s order containing an arbitration clause; and
2) whether this court erred by declining to vacate the arbitration award entered in favor of plaintiff where plaintiff was not denied a hearing, and there is a lack of evidence that fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award.

LEGAL ANALYSIS

“A written agreement to subject any existing controversy to arbitration, or a provision in a written agreement to submit to arbitration is valid, enforceable and irrevocable save upon such grounds as exist at law or in equity relating to validity, enforceability or revocation.” 42 Pa.C.S. § 7303. Courts apply a two-part test to determine whether arbitration is required. Midomo Co., Inc. v. Presbyterian Hous. Dev. Co., 739 A.2d 180, 186 (Pa. Super. 1999). First, the court must determine whether a valid agreement to arbitrate exists between the parties. Id. Second, if such agreement does exist, then the court must determine whether the dispute involved is within the scope of the agreement. Id.

An agreement to arbitrate was signed by the parties. The buyers order is the written agreement for the sale of the vehicle by Springfield Hyundai to plaintiff. The retail installment sales contract (RISC) is the written agreement detailing the plaintiff’s financing of the vehicle. These documents operate in unison to explain the rights and obligations of the parties.

The buyers order requires all disputes between the parties be resolved by arbitration. Plaintiff argues that because the RISC does not mandate arbitration of disputes, and the document contains an integration clause, the RISC voids the arbitration requirement contained in the buyers order. However, the RISC only pertains to the financing of the vehicle and would thus void or supersede only terms regarding financing of the vehicle.

The buyers order contains sixteen additional terms and conditions, including the arbitration clause, as well as price, trade allowance, taxes, document fees, deposit, etc. The RISC does not void or supersede any of these terms as they are not encompassed within the scope of the RISC and were never intended to be. If the RISC operated to void all terms in the buyers order not contained in the RISC, basic terms of the agreement between the parties would be missing. The buyers order is intended to complement the RISC and the documents function together to complete the agreement of the parties

Second, the dispute between the parties to this lawsuit is within the scope of the arbitration clause contained in the buyers order. The arbitration clause contained in the buyers order is broad and would certainly cover the allegations presented in plaintiff’s complaint. It states:

It is the intention of the parties that the claims or disputes subject to arbitration hereunder shall be construed as broadly as permitted by applicable law and shall include, but are not limited to, those arising from or relating to the enforceability of this agreement, the terms and provisions of the sale, lease, or financing agreements, the purchase of insurance, extended warranties, service contracts or other products purchased as an incident to the sale, lease or financing of the vehicle, the performance or condition of the vehicle, or any other aspects of the vehicle and its sale, lease or financing including, without limitation, claims based upon state and/or federal statutes, contract claims, tort claims, fraud claims, damage claims and/or misrepresentations. Buyers Order attached as Exhibit “B” to Drive Financial’s Preliminary Objections, ¶ 16).

Plaintiff’s complaint alleges various misrepresentations and omissions by defendants regarding the condition of the vehicle as well as the terms of the subject agreement, i.e. odometer fraud, charging unlawful fees, and misrepresenting the vehicle’s accident and ownership history. Her complaint contains counts for fraud, breach of contract, negligence, negligent misrepresentation, breach of fiduciary duty, violations of the Uniform Commercial Code, conversion, violations of the Fair Credit Extension Uniformity Act, and violations of the Unfair Trade Practices Act. These allegations are within the scope of the arbitration clause contained in the buyers order, and the action is properly submitted to arbitration.

The second issue raised by plaintiff is whether this court erred by declining to vacate the arbitration award. Pursuant to 42 Pa. C.S. § 7341, “Common law arbitration,”

The award of an arbitrator in a nonjudicial arbitration which is not subject to Subchapter A (relating to statutory arbitration) or a similar statute regulating nonjudicial arbitration proceedings is binding and may not be vacated or modified unless it is clearly shown that a party was denied a hearing or that fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award.

Plaintiff’s contention is that this court erroneously transferred this matter to arbitration; therefore, the arbitrator lacked jurisdiction to hear the matter, making the award unjust. However, for the reasons stated above, the matter was properly transferred to arbitration because a valid agreement to arbitrate existed, and the dispute is within the scope of the arbitration clause. Therefore, the arbitrator possessed jurisdiction to render a judgment, and this court did not have the authority to vacate it.

CONCLUSION

For the foregoing reasons, this court respectfully requests that the May 28,2010 orders granting defendants Springfield Hyundai and Drive Financial’s preliminary objections and transferring the case to binding arbitration in addition to the September 27, 2012 order denying plaintiff’s petition to vacate arbitration award and the court’s May 28, 2010 orders be affirmed.

      . Pennsylvania Motor Vehicle Law contemplates that there will be more than one document executed in an agreement for the sale of a motor vehicle. See 37 Pa. Code § 301.4(a)(3)(stating “[Fjailing to provide a purchaser, at no additional charge, an exact copy of each document required by law to be provided including, but not limited to the agreement of sale, installment sales contract, odometer statement, and warranty and other documents in which legal obligations are imposed on the buyer.”

      . The integration clause in the RISC states, “this contract contains the entire agreement between you and us relating to this contract.”


author: PICCIONE, J.,

text:
    Commonwealth v. Luck

      C.P. of Lawrence County,
    No. 594 OF 2007, CR.

      Jonathan Miller, district attorney, for Commonwealth.

      GeraldIwanejko, Jr., for defendant.
    February 13, 2013
   PICCIONE, J.,

Before the court for disposition is the amended petition for post conviction relief (hereinafter, “petition”) filed on behalf of the defendant, Martin Luck (hereinafter, “defendant”). Defendant contends that he is eligible for relief because he received ineffective assistance of counsel which so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. Based on the foregoing assertion, defendant requests this court to release defendant from incarceration and/or modify the sentence issued on December 3, 2009. A brief background of this matter is summarized as follows:

On December 3, 2009, this court sentenced defendant to a term of four days to twelve months incarceration, followed by one year probation after defendant entered a guilty plea to endangering welfare of a child, pursuant to 18 Pa.C.S.A. § 4304, a misdemeanor of the first degree. The sentence provided cefendant with credit for four days previously served.

On April 5, 2012 this court resentenced the defendant following a second revocation hearing to a term of one year to three years incarceration. The April 5, 2012 sentence order provided the defendant with two hundred thirty-six days (236) credit for time served. Shortly thereafter, defendant initiated this petition asserting that his prior counsel was ineffective for failing to continue the April 5, 2012 hearing because the defendant had charges pending in Mercer County, Pennsylvania. The defendant further contends that his prior counsel was ineffective for failing to file a direct appeal of the April 5, 2012 sentencing order.

To be eligible for relief under the Commonwealth of Pennsylvania’s Post-Conviction Relief Act (hereinafter, “PCRA”), the petitioner must satisfy four general requirements. First, the petitionermusthave been convicted of a crime under Pennsylvania law and subsequently sentenced to either incarceration or probation. 42 Pa.C.S.A. § 9543(a)(1). Second, the conviction and sentence must have resulted from at least one of the errors and/or violations elucidated in §9543(a)(2) of the PCRA. Third, the allegation of error must have been previously litigated or waived by the petitioner. 42 Pa.C.S.A. § 9543(a)(3). Finally, the petitioner must demonstrate that the failure to litigate the claim could not have been “the result of any rational, strategic or tactical decision by counsel.” 42 Pa.C.S.A. §9543(a)(4).

The PCRA permits a petitioner to seek post-conviction relief for a claim of ineffective assistance of counsel. 42 Pa.C.S.A. §9543(a)(2)(ii). Under Pennsylvania law, there is a basic presumption that counsel acted effectively. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008). Thus, the burden rests on the petitioner to demonstrate ineffectiveness. Id. To do so, the petitioner “must plead and prove by a preponderance of evidence that his conviction resulted from ineffective assistance of counsel, which in the circumstances of the particular case, so undermined the truth-determining process that no reasonable adjudication of guilt or innocence could have taken place. Commonwealth v. Granberry, 644 A.2d 204, 207 (Pa. Super. 1994) (citing Commonwealth v. Dukeman, 565 A.2d 1204 (Pa. Super. 1989)).

Pennsylvania courts apply a three-prong test to determine whether the petitioner has established ineffectiveness of counsel. Commonwealth v. Sneed, 899 A.2d 1067, 1076 (Pa. 2006). The petitioner must first deomonstrate that the issue underlying the claim has arguable merit. Id. Next, if the claim does have arguable merit, it must then be determined whether counsel’s acts or omissions had some reasonable basis designed to serve the interests of his client. Id. “Once it has been determined that the particular course of action chosen by counsel had some reasonable basis designed to effectuate his client’s interests, counsel will be deemed constitutionally effective.” Commonwealth v. Miller, 431 A.2d 233, 235 (Pa. 1981) (citing Commonwealth ex rel. Washington v. Maroney, 235 A.2d 349 (Pa. 1978)). If a reasonable basis for counsel’s actions cannot be found, the petitioner must show that the ineffectiveness of counsel resulted in prejudice to him. Sneed, 899 A.2d at 1076. “Prejudice in the context of ineffective assistance of counsel means demonstrating that there is a reasonable probability that, but for counsel’s error, the outcome of the proceeding would have been different.” Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001)(citing Commonwealth v. Kimball, 724 A.2d 326, 332 (Pa. 1999)). Failure to satisfy any of the three prongs will require rejection of the petitioner’s claim. Commonwealth v. Hammond, 953 A.2d 544, 556 (Pa. Super. 2008).

The defendant first asserts that his counsel was ineffective for failing to request a continuance of the April 5, 2012 revocation hearing. Defendant’s prior counsel testified to this court, however, that it is his practice to advise the defendant about a continuance, especially if other charges are pending. (N.T. November 1, 2012, pp. 29-20, 36-37). Additionally the court provided counsel with the opportunity to continue the sentencing phase of the November 1, 2012 hearing if the parties so desired. The defendant’s prior counsel indicated that the defendant had no objection in proceeding on that date. (N.T. Nov. 1, 2012, p. 39). The court finds defendant’s prior counsel’s testimony regarding the fact that he did advice the defendant of his option to continue the hearing to be credible. The court further finds that the defendant is unable to articulate any real prejudice in regards to this complaint, in that the same is based upon pure speculation of what the defendant’s sentence may have been after a resolution of other pending charges. As such, the court does not find merit in the defendant’s argument that his prior counsel was ineffective for failing to continue the April 5, 2012 revocation hearing.

Next, the defendant’s alleges that his counsel was ineffective for failing to file a direct appeal from this court’s sentencing order dated April 5, 2012. In reaching a determination regarding defendant’s second claim, the court looks to the case of Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999). In Lantzy, the Supreme Court of Pennsylvania found that when a defendant presents a PCRA claim of ineffective assistance of counsel for failing to file a requested direct appeal, the defendant merely needs to show that he requested such petition and counsel failed to file. 736 A.2d 564, 571. “In these situations, the Supreme Court has effectively held that the prejudice prong of the test for ineffective assistance has been established per se.” Commonwealth v. Bath, 907 A.2d 619, 622 (Pa. Super. 2006).

Instantly, the defendant has established at minimum the fact that he made an inquiry to his prior counsel regarding an appeal. At the PCRA hearing, defendant stated that following this court’s denial of a motion for reconsideration of the April 5, 2012 sentencing order, he wrote to the Office of the Public Defender of Lawrence County. In his letter, the defendant inquired if the appeal could be reconsidered, which the court interprets to be a general inquiry into the possibility of an appeal. Furthermore, the Superior Court of Pennsylvania has held that there is “a duty on counsel to adequately consult with the defendant as to the advantages and disadvantages of an appeal where there is a reason to think that a defendant would want to appeal.” Beth, 907 A.2d at 623. The failure to consult with the defendant could therefore prove to be ineffective even where the defendant did not request an appeal. Id. The Superior Court in Bath, supra, found that in circumstances such as in the instant case, the pertinent inquiry is not whether a defendant’s prior counsel filed for a an appeal, but whether the defendant’s prior counsel affirmatively consulted “with the [defendant] about the wisdom of filing such a petition where the [defendant] has not requested the filing of a petition.” Id. If a defendant can establish that his prior counsel owed a duty to consult with him, he need merely show that any issue in the appeal rises above frivolity. Id. at 624. See also Roe v. Flores-Ortega, 528 U.S. 470 (2000); Comm. v. Touw, 781 A.2d 1250 (Pa.Super. 2001).

During the PCRA hearing, the defendant’s prior counsel testified that he told the defendant he would file a motion in regards to this court’s April 5, 2012 sentencing order. Defendant’s prior counsel did file a motion for reconsideration on April 24, 2012, which was denied by this court. The defendant subsequently sent a letter to the public defender’s office inquiring about an appeal. Before the expiration of the thirty day time period for appeal, pursuant to Pa.R.App.P. 903(a), however, defendant initiated the instant PCRA action. Defendant’s prior counsel testified that he did not personally speak with the defendant after the April 5, 2012 revocation hearing. From this fact, the court infers that defendant’s prior counsel failed to specifically address the issue regarding an appeal. Although the court believes that defendant’s prior counsel still had the opportunity to file a direct appeal at the time this PCRA petition was initiated, the court does find error in defendant’s prior counsel’s failure to remedy defendant’s concerns by not consulting with him regarding such an appeal regardless of whether such an appeal has merit. The court concludes that as a result of defendant’s prior counsel’s failure to act, the defendant was prejudiced, and the court deems the defendant’s prior counsel ineffective.

Accordingly, the defendant’s amended petition for post conviction collateral relief is granted in part and denied in part.

ORDER OF COURT

And now, this 15th day of February, 2013, the court sua sponte amends paragraph two (2) of the order of court issued in the above captioned case on February 13, 2013 to provide as follows:

2. The defendant’s petition for post conviction collateral relief is granted pursuant to the attached opinion regarding the defendant’s request to file a direct appeal to the Superior Court of Pennsylvania nunc pro tunc.

All other provisions of this court’s February 13, 2013 order of court, not inconsistent with this order of court shall remain in full force and effect. The clerk of courts shall properly serve notice of this order upon counsel of record; and if a party has no counsel, then upon said party at their last known address as contained in the court’s file.

ORDER OF COURT

And now, this 13th day of February, 2013, the court having held a hearing on November 1, 2012 regarding the defendant’s amended petition for post conviction collateral relief, with Jonathan R. Miller, Esquire, appearing and representing the Commonwealth, and Gerald J. lwanejko, Esquire, appearing and representing the defendant, Martin Luck, and after consideration of the arguments presented and submitted by counsel, it is hereby ordered and decreed as follows:

1. Defendant’s amended petition for post conviction collateral relief is denied pursuant to the attached opinion regarding the defendant’s assertion that his prior counsel was ineffective for failing to request a continuance of the April 5, 2012 revocation hearing.

2. The defendant’s petition for post conviction collateral relief is granted pursuant to the attached opinion regarding the defendant’s request to file a direct appeal to the Supreme Court of Pennsylvania nunc pro tunc.

3. The defendant has the right to appeal from the within order denying the amended petition for post conviction collateral relief, and such appeal must be filed within thirty (30) days of the date this order or the right to appeal will be lost.

4. The defendant has the right to counsel relative to such appeal and if he meets the required standard of indigency, counsel will be appointed to represent him for this purpose without cost.

5. The clerk of courts shall properly serve notice of this order and attached opinion upon counsel of record; and if a party has no counsel, then upon said party at their last known address as contained in the court’s file.

      . When defendant initiated this PCRA action, he petitioned the court pro se. Upon receipt of defendant’s petition, the court appointed Gerald J. lwanejko, Esquire to represent the defendant.