author: WECHT, J.,

text:
    Callanan v. Johnson

      C.P. of Allegheny County,
    no. FD 04-2203-003.

      Margaret P. Joy, for plaintiff.

      Joel M. Dresbold, for defendant.
    March 31, 2006
   WECHT, J.,

Both parties appeal from this court’s January 4, 2006 order dismissing defendant Eric Y. Johnson (Husband)’s exceptions and plaintiff Susan G. Callanan (Wife)’s cross-exceptions. The parties excepted to the recommendations of Hearing Officer Joseph Kulilc, Esquire, mailed on September 30, 2005. Hearing Officer Ruble conducted a hearing on Husband’s petition to modify his alimony and medical insurance reimbursement obligations to Wife, and on Husband’s ongoing contempt for failure to comply with those obligations.

BACKGROUND AND PROCEDURAL HISTORY

The parties married in New York on June 19, 1971. The parties divorced by decree of the Massachusetts Probate Court, Nantucket, entered on June 17,1998. On May 21, 1998, prior to entry of the decree, the parties entered into a “separation agreement.” The agreement provided, inter alia, that Husband pay alimony to Wife, until Wife’s death or remarriage, in the amount of $4,300 per month. (Agreement, exhibit C, ¶¶2,3.) The agreement also required Husband to reimburse Wife for the cost of medical insurance coverage for Wife until Wife’s remarriage, or until the time that Wife becomes eligible to receive health insurance benefits under the Medicare plan. (Agreement, exhibit A, ¶3.)

On May 3, 2004, Wife filed a “complaint in support” against Husband in Allegheny County. At that time, Husband was residing in Sewickley, and Wife was residing in New York. By administrative order of this court dated May 25, 2004, the Massachusetts order, which implemented the terms of the parties’ agreement, was registered and confirmed in Allegheny County. The May 25 order stated that the amount of arrears as of April 19, 2004 was $25,800.

At the September 23, 2005 hearing before Hearing Officer Kulik, Husband testified as follows with regard to his educational background and employment history:

Husband graduated from Yale University. (9-23-05 R. at 36.) During the marriage, Husband was employed by Heinz Company in Pittsburgh. (9-23-05 R. at 36.) During his tenure at Heinz, Husband worked in various capacities, including product manager, head of marketing, head of corporate planning, and, ultimately, director of international corporate development. (9-23-05 R. at 35.) In 1989, Husband left his employment with Heinz. (9-23-05 R. at 37.) While Husband stated that his job was “discontinued,” he admitted that he was offered the opportunity to remain at Heinz in a different capacity. (9-23-05 R. at 37.) Husband’s salary at the time he left Heinz was approximately $150,000. (9-23-05 R. at 37.)

In 1989, following his departure from Heinz, Husband started his own business, Certified Pure Ingredients (CPI). (9-23-05 R. at 39.) Husband described the business as focusing on “specialty ingredients for the food and beverage industry.” (9-23-05 R. at 14.) At the time of the agreement, Husband was the president and controlling shareholder of his company. (9-23-05 R. at 14.) Husband’s 1998 W-2 reflected income of $144,000. (9-23-05 R. at 14.) Husband’s actual income was closer to $200,000 after inclusion of perquisites. (9-23-05 R. at 14.)

Husband testified that his business suffered a downturn following the United States International Trade Commission’s imposition of special anti-dumping duties in 2001 against the main products made by his company. (9-23-05 R. at 15-16.) Husband stated that the imposition of the duties reduced the company’s profit margin from 15 percent to 8.5 percent. (9-23-05 R. at 16.) Further, the company’s secured lender reacted to the reduction of the company’s cash flow by tightening the company’s credit line, thus limiting the amount of working capital. (9-23-05 R. at 16-17.) As a result, in 2002, Husband testified that “I reduced my income by about $2,000 a month simply to try to offset some of the duty payments that were being incurred and also to pay for the addition of a qualified chief financial officer to help me manage the business as it grew.” (9-23-05 R. at 18-19.)

Husband admitted that, beginning around August or September 2003, he started defaulting on his alimony payments to Wife. (9-23-05 R. at 20.) Husband also admitted that he began defaulting on the medical insurance reimbursement payments “around the same time.” (9-23-05 R. at 43.) In May 2004, on behalf of CPI, Husband filed for bankruptcy under Chapter 7 of the United States Bankruptcy Code. Husband also filed a personal bankruptcy. In August 2004, Wife petitioned for relief from the automatic stay in the United States Bankruptcy Court. By order dated August 19,2004, the Bankruptcy Court granted Wife’s requested relief.

On October 14, 2004, Wife presented a “petition for contempt and sanctions for failure to make required alimony payments” before the undersigned. By order of the same date, this court scheduled a hearing for November 24,2004. Husband failed to appear for the November 24 hearing. As a result, a high priority bench warrant issued, and Husband appeared on November 30, 2004 before the Honorable Eugene F. Scanlon Jr. Judge Scanlon set purge conditions requiring Husband to pay $14,000 and to continue to pay his obligations pursuant to the agreement. Judge Scanlon scheduled a compliance review on December 9,2004 before Hearing Officer Annette Tierney Esquire.

In her December 9 recommendations, Hearing Officer Tierney recommended that judgment be entered in favor of Wife in the amount of $41,900, which did not include the charge for December 2004. Hearing Officer Tierney further recommended that Husband pay counsel fees to Wife in the amount of $1,536. Wife filed exceptions to Hearing Officer Tierney’s recommendations, which were dismissed by the undersigned by order dated April 14, 2005.

On December 17,2004, Husband presented a petition before the undersigned seeking to modify his alimony and medical insurance reimbursement obligations based upon a change in circumstances. Upon consent of the parties, the hearing on Husband’s petition was continued from April 8, 2005 to September 23, 2005 to allow for discovery. Following hearing on September 23, Hearing Officer Kulik entered recommendations on September 30,2005 denying Husband’s petition and finding him to be in contempt of the agreement. Hearing Officer Kulik recommendedjudgmentinthe amount of $82,583.78 as of September 30, 2005. In his explanation, Hearing Officer Kulik concluded that the agreement could not be modified under Massachusetts law. Further, Hearing Officer Kulik stated that, even if the agreement were modifiable under Massachusetts law, modification was not appropriate based upon the facts of the case. Specifically, Hearing Officer Kulik noted that Husband has the ability to earn income and found it “troubling” that Husband acknowledged that he can control his own income from his business.

On October 11,2005, Husband filed timely exceptions to Hearing Officer Kulik’s recommendations. Wife filed cross-exceptions on October 21, 2005. Following oral argument on November 18, 2005, this court entered its January 4,2006 order dismissing both sets of exceptions, from which both parties appeal.

Husband’s Appeal

On February 1,2006, Husband filed a notice of appeal from this court’s January 4, 2006 order at 265 WDA 2006. By order of the same date, this court directed Husband to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). On February 13,2006, Husband filed his concise statement raising the following issues for review:

“(1) The lower court erred in denying the defendant’s exceptions to the recommendation of the hearing officer that Massachusetts law did not allow modification of alimony in this case even though the parties specified in their separation agreement that the agreement was to be incorporated and merged into a divorce judgment.

“(2) The lower court erred in denying the defendant’s exceptions to the recommendation of the hearing officer that the evidence did not prove a material change in circumstances sufficient to reduce the defendant’s alimony order even though the uncontroverted testimony showed the defendant had a drastic reduction in his income through no fault of his own.

“(3) The lower court erred in denying the defendant’s exceptions to the recommendation of the hearing officer finding the defendant in contempt and setting purge conditions when there was no evidence that the defendant had the present ability to comply with the purge conditions.”

Wife’s Cross-Appeal

On February 14,2006, Wife filed a cross-appeal from this court’s January 4,2006 order at 346 WDA2006. On February 15, 2006, this court issued an order directing Wife to file a concise statement of matters complained of on appeal in accordance with Pa.R.A.P. 1925(b). In her concise statement, filed on February 23,2006, Wife presents the following issues for review:

“(1) The court below erred in determining the cost of plaintiff Wife’s medical insurance premium which defendant Husband is obligated to pay/reimburse her for.

“(2) The court below erred in calculating the arrears owing to Wife for Husband’s failure to pay/reimburse for the appropriate medical insurance premiums.

“(3) The court below erred in failing to award to Wife the full amount of her counsel fees incurred solely in attempting to compel Husband’s compliance with prior orders of court.”

DISCUSSION

Husband’s Appeal

As to Husband’s first issue raised on appeal, this court notes that the parties contracted for Massachusetts law to govern their agreement. Specifically, the preamble to the agreement, section XI, provides that, “This agreement shall be construed and governed according to the laws of the Commonwealth of Massachusetts.”

Husband has maintained the position that the parties’ agreement is modifiable under Massachusetts law. Husband asserts that, under Massachusetts law, where a separation agreement is incorporated and merged into a divorce decree, the agreement is treated as a court order, and thus the standard for modification is a “material change in circumstances.” See Freeman v. Freeman, 557 N.E.2d 1386 (Mass. App. Ct. 1990.) Husband’s statement of the law is accurate. Further, Husband’s assertion that the parties agreed that they would request that the agreement be incorporated and merged into the divorce judgment is accurate. (See agreement, preamble, section VII.) However, the parties’judgment of divorce nisi provides as follows:

“Agreement dated May 21, 1998 and addendum to separation agreement dated June 17, 1998 which are hereby incorporated but not merged into said judgment nisi, notwithstanding said incorporation, and said agreement and addendum shall survive and remain as an independent contract except for child-related issues which shall merge.” (emphasis added)

Accordingly, the agreement survives the divorce judgment as an independent contract.

Massachusetts courts have held that, where a separation agreement is fair and reasonable when the divorce judgment was entered, was not the product of fraud or coercion, and was incorporated but not merged into the divorce judgment, “something more than a ‘material change of circumstances’ must be shown before a judge of the probate court is justified in refusing specific enforcement of that agreement.” DeChristofaro v. DeChristofaro, 508 N.E.2d 104, 108 (Mass. App. Ct. 1987), citing Stansel v. Stansel 432 N.E.2d 691 (Mass. 1982); Knox v. Remick, 358 N.E.2d 432 (Mass. 1976). The DeChristofaro court provided the following guidance as to the definition of “something more”:

“‘Something more’ has been characterized as ‘countervailing equities,’ such as where one spouse ‘is or will become a public charge, ’ where there has been failure to comply with the agreement, or where there are equally compelling reasons.” DeChristofaro, 508 N.E.2d at 108, quoting Knox, 358 N.E.2d 435-36; Stansel, 432 N.E.2d at 515-16.

Further, the DeChristofaro court noted that, in circumstances where the court finds that “something more” exists, the court may order payment in excess of the obligation specified in the parties’ separation agreement. See id.

In the instant case, the judgment of divorce nisi specifically stated: “The court finds said agreement to be fair and reasonable and not the product of fraud or coercion.” Further, the Massachusetts judgment expressly ordered that the parties’ agreement survived the divorce “as an independent contract.”

Accordingly, at hearing on his modification petition, Husband had the burden to show that something more than a material change of circumstances occurred in order for his petition to be granted. Husband did not meet that burden. There was no evidence that either spouse will become a public charge. Further, in Knox, the Supreme Judicial Court of Massachusetts noted that a court might deny specific performance of an agreement where the plaintiff failed to comply with some other provision of the agreement. In this case, Husband presented no evidence that Wife has failed to comply with the agreement in any way. Rather, by his own admission, Husband stopped paying his alimony and medical insurance reimbursement obligations in or about August 2003. In addition, at hearing, Husband admitted that, in May 2005, he surrendered the life insurance policy that he was required to maintain to secure his alimony obligation pursuant to the agreement. (9-23-05 R. at 44-45.) Because Husband failed to demonstrate that something more than a material change in circumstances had occurred, Hearing Officer Kulik properly enforced the agreement, and this court properly entered the hearing officer’s recommendations as a final order.

With regard to Husband’s second issue on appeal, as already discussed, Husband was required by the governing Massachusetts law to show something more than a material change in circumstances. However, even if Husband was required to show only a material change in circumstances, the evidence still would support the hearing officer’s conclusion that Husband did not meet this requirement. Indeed, the evidence demonstrated that the reduction in Husband’s income is voluntary.

Husband testified that when CPI started to go downhill following imposition of the anti-dumping duties, Husband, in his capacity as president and controlling shareholder of his company, reduced his income. (9-23-05 R. at 14.) At the time of the agreement in 1998, Husband’s income was about $200,000, including perquisites. (9-23-05 R. at 14.) Husband testified that he began reducing his income in 2002. (9-23-05 R. at 14.) Husband’s 2002 W-2 reflected income of $61,000. (9-23-05 R. at 20.) Husband’s 2003 W-2 reflected income of $60,000. (9-23-05 R. at 20-21.) In 2004, following Husband’s filing of bankruptcy on behalf of CPI, Husband earned $10,000 from CPI and $15,000 from a spin-off of CPI called Certified Pure Ingredients Sales, LLC. (9-23-05 R. at 22, 27.)

Further, in stark contrast to Husband’s statement in his second issue that the reduction of his income was “through no fault of his own,” Husband admitted that he had made business mistakes in running CPI that led to a “heavy debt load” that “had to be paid for.” (9-23-05 R. at 40-41.) Husband also admitted that he had not sought full-time or even part-time employment with companies other than Organic Ingredients and Vita Food since his business had filed for bankruptcy. (9-23-05 R. at 41.)

Husband testified as follows concerning his employment following the bankruptcy filing on behalf of CPI:

From May through August 2004, the chief financial officer of CPI, Mr. Whitehead, started CPI Sales “to basically resuscitate and carry on what business we could.” (9-23-05 R. at 22.) Mr. Whitehead was unable to secure financing for CPI Sales, and decided to either close the company or sell it. Ultimately, Husband’s wife, Paula, bought CPI Sales for a dollar. (9-23-05 R. at 22.) Husband received $15,000 in commission income from CPI Sales in 2004. (9-23-05 R. at 23.) Yet Husband denied being a shareholder, employee or manager of CPI Sales. (9-23-05 R. at 22-23.)

In November 2004, Husband entered into a five-year contract with Organic Ingredients. (9-23-05 R. at 23,24.) Organic Ingredients paid Husband $10,000 up front for the “intellectual property” represented by Husband’s relationship with suppliers. (9-23-05 R. at 24.) Organic Ingredients agreed to pay Husband a commission rate of 20 percent of the gross margin that Organic Ingredients earned from the sale of products that Husband brought to it. (9-23-05 R. at 24.) Organic Ingredients also agreed to pay off about $160,000 of debts incurred by CPI Sales. (9-23-05 R. at 24.) Husband explained that Organic Ingredients agreed to pay this debt because “the suppliers who the debt was owed to were essential to the continued operation of [Organic Ingredients].” (9-23-05 R. at 24.) It is unclear why Organic Ingredients would be concerned with debt of a company of which Husband denies being a shareholder, employee or manager. As of the time of the September 2005 hearing, Husband had earned $42,000 gross year-to-date from Organic Ingredients. (9-23-05 R. at 25.) However, Husband explained that Organic Ingredients takes 35 percent of his gross earnings as repayment for the obligations they have satisfied on behalf of CPI Sales. (9-23-05 R. at 25, 42.)

Husband also has a contract with Vita Foods, which is a company based in Chile. (9-23-05 R. at 25.) Vita Foods pays Husband three percent of the value of whatever business Husband brings them. (9-23-05 R. at 25.) Husband stated that the contract with Organic Ingredients has “tight exclusivity provisions” that prevent him from obtaining contracts with competitors. (9-23-05 R. at 26-27.) Husband explained that he has been able to obtain the contract with Vita Foods because the company is not a competitor of Organic Ingredients. (9-23-05 R. at 25-27.) As of the September 2005 hearing, Husband had made about $9,000 from his contract with Vita Foods. (9-23-05 R. at 26.)

Husband admitted on cross-examination that he had not sought employment as an employee with any other company either before entering into the contract with Organic Ingredients or after. (9-23-05 R. at 41-42.) On redirect, Husband explained that he did not return to traditional employment with companies such as Heinz or Del Monte because he had hoped that CPI Sales would become a “very lucrative” business. (9-23-05 R. at 58.) Then, when CPI Sales supposedly did not become very lucrative, Husband thought the contract with Organic Ingredients “wouldbe an acceptable solution.” (9-23-05 R. at 58.) Finally, Husband claimed that he would not get too far in an interview with his credit report showing two foreclosures and a bankruptcy, and he “really wanted to spare [himself] that humiliation.” (9-23-05 R. at 58-59.) The foregoing evidence demonstrates that any reduction in Husband’s income was voluntary, and that Husband’s second appellate issue accordingly lacks merit.

As to Husband’s third issue raised on appeal, Hearing Officer Kulik made the following finding regarding Husband’s ability to pay:

“I find it somewhat curious that Deft has been in a position of control and influence, yet his company, in effect ‘he,’ is limiting his income. There was substantial testimony as to the use of business funds by Deft and his wife. There were cash withdrawals and other transactions, for example. It is clear Deft has the ability to earn income, and I find his claims of financial hardship to be disingenuous. Since the alimony is not modifiable, and since Deft has had the ability to work, earn money, and pay, relief herein is appropriate [sic].” (9-30-05 recommendations, p. 2.)

Indeed, despite Husband’s testimony that CPI Sales had been “dormant” since October 2004, as well as his denial that he was ever a shareholder or employee or had a management contract with CPI Sales, Husband freely admitted on cross-examination that he and his wife (the owner of CPI Sales) had access to, and drew funds from, the CPI Sales bank account right through the date of hearing. (9-23-05 R. at 23, 48-52.)

When confronted with the specific transactions, Husband admitted that funds from the CPI Sales bank account were used to pay the Comcast and Duquesne Light bills for Husband’s Sewickley office. (9-23-05 R. at 49-50.) The account also was used to make monthly payments on an Advanta credit card on which Husband testified CPI Sales had incurred a $3,600 balance. (9-23-05 R. at 50.) Husband also identified a $4,200 wire transfer from the CPI Sales bank account as a transfer he made to pay the movers upon their arrival with Husband’s possessions in Florida. (9-23-05 R. at 52.) Yet Husband also testified that his mother loaned him money to cover the costs of his move to Florida. (9-23-05 R. at 47.)

As to deposits into the CPI Sales bank account, Husband identified a deposit of $4,625 on May 18, 2005 as the proceeds from his surrender of the life insurance policy that Husband was required to maintain to secure his alimony obligation pursuant to the agreement. (9-23-05 R. at 50.) It was evident that these funds could have been used by Husband to pay his obligation to Wife. Husband also identified deposits into the CPI Sales account from Alla Foods, which Husband said is the Chilean name for Vita Foods. (9-23-05 R. at 51.) Husband offered no explanation as to why the money he was receiving from his contract with Vita Foods was being deposited into the CPI Sales bank account.

Husband also testified that he has received loans from family members over the past two years, which suggests that Husband has additional financial resources. In addition to the loan from his mother to cover Husband’s move to Florida, Husband received a total of $9,000 from his father in May and June 2005 to cover living expenses, and a $31,000 loan from his sister-in-law. (9-23-05 R. at 46-47.) Husband received the loan from his father after a proceeding in March 2005 at which he testified that his father had disowned him. (9-23-05 R. at 47.) Husband explained that $14,000 of the $31,000 loan from his sister-in-law went toward the purge payment that Husband was required to make pursuant to Judge Scanlon’s November 30, 2004 order. (9-23-05 R. at 46.) Husband could not say where the other $17,000 went, other than to say that he is “$2,000 a month under water on what it costs me to live.” (9-23-05 R. at 47.) Husband’s assertions that there was “considerable lender fatigue” among his family members and that his mother and father were seeking immediate repayment appeared to be disingenuous. (9-23-05 R. at 57.)

The foregoing evidence demonstrated that Husband had the ability to pay his obligation to Wife.

Wife s Appeal

With regard to the first issue Wife raises in her cross-appeal, Hearing Officer Kulik offered the following explanation concerning determination of the cost of Wife’s medical insurance coverage:

“Neither party offered any testimony as to the cost for such coverage, but there was uncontradicted testimony that the parties had acted under the premise that this would cost $500 per month. Plaintiff says it now costs more, but she has not adequately proven such a claim. It is her duty to present the evidence. I am using the $500 figure for the cost of insurance.” (9-30-05 recommendations, p. 2.)

At hearing, Wife testified that she had been accepting $500 per month from Husband as reimbursement for her medical insurance coverage, but that the cost is actually $548.75. (9-23-05 R. at 62-63.) Because Wife did not introduce any documentation to support her assertion that her medical insurance cost is $548.75, it was unclear whether Wife was testifying that the cost had at one time been $500 and had risen to $548.75, or if the cost had been $548.75 all along. Without this evidence, it was impossible for the hearing officer to determine the period of time that the cost had been $548.75 for purposes of calculating the arrears. Accordingly, the hearing officer properly used the $500 figure.

As to Wife’s second issue raised on appeal, the hearing officer stated in his explanation that he had calculated a total arrears for the medical insurance reimbursement of $6,500 after reviewing the entire file and record. The hearing officer was not required simply to accept Wife’s testimony that the figure was $14,000. (9-23-05 R. at 62.) Rather, Hearing Officer Kulik properly conducted an independent review of the file to calculate the $6,500 figure.

With regard to Wife’s final issue on appeal, Wife requested the entirety of the $20,124 in counsel fees that she incurred while the law firm of Weisman Goldman Bowen & Gross, LLC had been representing her. (9-23-05 R. at 69, 95.) In awarding Wife $2,500 in counsel fees, the hearing officer noted that “[i]t appears that some of the invoice charges would not be includible ....”

Indeed, included on Wife’s invoice were fees incurred in representing Wife’s interests in the United States Bankruptcy Court. In disposing of Wife’s previous exceptions by its April 14, 2005 order, this court already had determined that it does not have jurisdiction to award Wife counsel fees for work done in bankruptcy court. Moreover, the hearing officer has discretion in determining the award of counsel fees, and is not required to recommend an award equal to the amount that a party is requesting.

For the foregoing reasons, this court’s January 4,2006 order should be affirmed.

      . At the time of hearing before Hearing Officer Kulik, when asked for his current address, Husband provided an address in Fort Orange, Florida. (9-23-05 R. at 12.) Wife testified that she resides in New York City. (9-23-05 R. at 59.)

      . On cross-examination, Husband admitted that $1,776,000 in unsecured debt and $333,000 in secured debt had been listed on the schedules attached to the CPI bankruptcy petition. (9-23-05 R. at 53-54.)

      . Despite Husband’s complaints as to his high cost of living in Florida, when asked why he moved to Florida, Husband stated that he not only wanted to get the “bad taste” of the bankruptcy out of his mouth, but that he wanted to “rebuild” himself in a “lower cost area.” (9-23-05 R. at 31-32, 47, 52-53.)


source: Caselaw Access Project

author: NANOVIC, P.J.,

license: Public Domain

text:
    Seemiller v. Amato
    C.P. of Carbon County,
    no. 05-2874.

      William B. Quinn, for plaintiff.

      Carmine S. Amato, pro se.

      Helen A. Amato, pro se.
    March 15, 2007
   NANOVIC, P.J.,

“Before a state may take property and sell it for unpaid taxes, the due process clause of the Fourteenth Amendment requires the government to provide the owner ‘notice and opportunity for hearing appropriate to the nature of the case.’ ” So begins the decision by the United States Supreme Court in Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 1712, 164 L.Ed.2d 415 (2006) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). It is also, as we shall see, the answer to the issue presented by the Bennett Family Trust in its motion for judgment on the pleadings now before us.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On May 7, 2004, the plaintiff, Joseph R. Seemiller, purchased from the Carbon County Tax Claim Bureau the property which is the subject of these proceedings to quiet title. Prior to this purchase, the property was exposed twice to public sale by the Tax Claim Bureau— once at upset sale and once at judicial sale — in accordance with the provisions of the Real Estate Tax Sale Law (RETSL), 72P.S. §§5860.101-5860.803. The property was sold to Seemiller from the bureau’s “repository for unsold properties” maintained in accordance with section 626 of the RETSL, 72 P.S. §5860.626. At the time of this sale, the Trust was the owner of the property as that term is defined in the RETSL.

As a pure legal question, the Trust argues that the statutory authorization found in section 627(a) of the RETSL, 72 P.S. §5860.627(a), for the sale to Seemiller from the bureau’s repository is unconstitutional on its face and deprived it, as owner, of a proprietary interest without notice or an opportunity to be heard. In deciding this issue, the question is not what was in fact done, but what does the RETSL require to be done before property can be sold from the repository, and does it violate an owner’s constitutional rights.

DISCUSSION

In essence, the Trust contends that it has been denied its constitutional right to due process of law because the RETSL allows for the sale of property out of the bureau’s repository without providing additional notice to the owner of that property. When narrowly viewed, the argument has colorable merit. The argument, however, fails to take into account the type and number of notices required by the RETSL before property is placed in the repository, or the quality of title possessed by the owner of property held in repository.

The RETSL provides, sequentially, for the entry of claims by the bureau on unpaid taxes, the sale of property at an upset tax sale on tax claims which have become absolute, and exposing to judicial sale those properties not sold at the upset sale, before property is placed in the bureau’s repository. As to notice of these events, the RETSL requires one consolidated notice, by registered or certified mail, return receipt requested, of the annual return of unpaid taxes made to the Tax Claim Bureau by the tax collector of each taxing district and of the entry of claims thereon in the records of the Tax Claim Bureau to the owners of each affected property at the address provided by the tax collector and, if such notice is not delivered at this address, by posting of the property, 72 RS. §5860.308; notice by publication, by posting of the affected property, and by certified mail, restricted delivery, return receipt requested, to each owner of the property and, with respect to this mailing, to those owners from whom a return receipt is not received, notice by first class mail to the owner’s last known address as it appears from the records of the Tax Claim Bureau, the tax collector for the taxing district making the return, and the county assessment office, of the date, time and location of the upset tax sale scheduled for the property, 72 P.S. §5860.602; and personal service, if within this Commonwealth, and by registered mail, return receipt requested, postage pre-paid, for service made outside of the Commonwealth, upon all interested parties, including the owner, of a rule to show cause why the property should not be sold at a judicial sale free and clear of all taxes and encumbrances, with absolute title conveyed to the purchaser. 72 P.S. §§5860.610 and 5860.611.

Additionally, when any notice of an upset or judicial sale mailed to an owner “is either returned without the required receipted personal signature of the addressee or under other circumstances raising a significant doubt as to the actual receipt of such notification by the named addressee or is not returned or acknowledged at all, then, before the tax sale can be conducted or confirmed, the bureau must exercise reasonable efforts to discover the whereabouts of such person or entity and notify him. The bureau’s efforts shall include, but not necessarily be restricted to, a search of current telephone directories for the county and of the dockets and indices of the county tax assessment offices, recorder of deeds office and prothonotary’s office, as well as contacts made to any apparent alternate address or telephone number which may have been written on or in the file pertinent to such property.” 72 P.S. §5860.607a(a); In re Sale No. 10, 801 A.2d 1280, 1283 (Pa. Commw. 2002).

To ensure against the deprivation of property without due process, strict compliance with these requirements is compulsory, the absence of which will invalidate the sale. Tracy v. County of Chester, Tax Claim Bureau, 507 Pa. 288, 297, 489 A.2d 1334, 1339 (1985).

The RETSL is an integrated statutory system providing for the escalating security and collection of delinquent real estate taxes. At the same time, the notice requirements of the RETSL provide for increasing efforts to identify, locate and notify a property owner as the threat to his property interest and personal liability for debt expands. From initially according taxes a first lien position on levy as a matter of law (72 P.S. §5860.301), to making tax claims entered on the records of the Tax Claim Bureau absolute and secure against challenges to their amount and validity (72 P.S. §5860.314), the RETSL progressively provides for an upset tax sale at which the minimum bid must be sufficient to pay all unpaid and accrued taxes in full, but at which the property remains under and subject to all mortgages, liens and other encumbrances for which payment has not been received (72 P.S. §5860.609), to a judicial sale at which the property is sold freed and cleared of “all tax and municipal claims, mortgages, liens, charges and estates of whatsoever kind, except ground rents separately taxed,” regardless of the price paid (72 P.S. §5860.612). Bell v. Berks County Tax Claim Bureau, 832 A.2d 587, 593 (Pa. Commw. 2003) (“At an upset sale, all recorded obligations not included in the upset price survive the sale, but at a judicial sale no liens or claims survive the sale.”).

By design, only after repeated and multiple notices have been given to the owner, and the property has been exposed to successive upset and judicial sales and remains unsold, is property placed in the bureau’s “repository for unsold properties.” 72 P.S. §§5860.610 and 5860.626. From this repository, the bureau is authorized to sell directly to prospective buyers — without further notice to the owner, notice by publication, or court approval- — and to convey title “free and clear of all tax and municipal claims, mortgages, liens, and charges and estates of whatsoever kind, except ground rents separately taxed.” 72 P.S. §5860.627(b).

Due process does not require actual notice. Jones, 126 S.Ct. at 1713 (citing Dusenbery v. United States, 534 U.S. 161, 170, 122 S.Ct. 694, 151 L.Ed. 2d 597 (2002) (discussing the form of notice required by due process when advising a federal inmate of the government’s intention to forfeit property in which the inmate appears to have an interest; holding that attempting to provide notice by certified mail satisfied due process in the circumstances present)). It does, however, require the government to provide “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Id. at 1713-1714 (quoting Mullane, 339 U.S. at 314); see also, Tracy, 507 Pa. at 297, 489 A.2d at 1339. To meet this standard, “[t]he means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.” Jones, supra at 1715 (quoting Mullane, 339 U.S. at 315). “[A] party’s ability to take steps to safeguard its own interests does not relieve the state of its constitutional obligation.” Id. at 1717 (citation and quotation marks omitted); see also, Smith v. Tax Claim Bureau of Pike County, 834 A.2d 1247, 1251 (Pa. Commw. 2003). Finally, in assessing the adequacy of a particular form of notice, the “interest of the state” must be balanced against “the individual interest sought to be protected by the Fourteenth Amendment.” Jones, supra at 1715 (quoting Mullane, 339 U.S. at 314).

In weighing these interests, the interest of the taxing districts to collect unpaid taxes is definite and clear:

“In authorizing the proceedings to enforce the payment of the taxes upon lands sold to a purchaser at tax sale, the state is in exercise of its sovereign power to raise revenue essential to carry on the affairs of state and the due administration of the laws .... The process of taxation does not require the same kind of notice as is required in a suit at law, or even in proceedings for taking private property under the power of eminent domain.” Leigh v. Green, 193 U.S. 79, 89, 24 S.Ct. 390, 392, 48 L.Ed. 623 (1904). (citation and quotation marks omitted)

By comparison, the Trust’s interest in property assigned to the bureau’s repository in compliance with the provisions of the RETSL is in name only. For all intents and purposes, by the time property has been exposed to judicial sale and placed in repository, all interest of the owner in the property itself has been terminated.

Once a rule to sell property at a judicial sale has been properly served on the owner and a decision authorizing such sale has been approved by the court, the balance between the government’s interest in being paid its taxes and the private interest sought to be protected by the Fourteenth Amendment is tipped, and tipped heavily, in favor of the government: the Tax Claim Bureau has been authorized to sell the property without any reserve, the paramount object being the collection of unpaid taxes, and the owner’s right to purchase has been extinguished. 72 P.S. §5860.618(a).

At this point, if not before, the owner no longer holds a legally protected property interest in the property. See Rivera v. Carbon County Tax Claim Bureau, 857 A.2d 208, 215-16 (Pa. Commw. 2004) (holding that once property has been exposed to an upset sale, provided the notice provisions of the RETSL have been met, legal title to the property passes to the Tax Claim Bureau, as trustee, by operation of law, regardless of whether an offer to purchase has been made or accepted), appeal denied, 583 Pa. 592, 878 A.2d 866 (2005); see also, DiMaio v. Tax Claim Bureau of Monroe County, 50 D.&C.3d 25, 27 (1988) (holding that once the rule to sell at judicial sale is made absolute, the owner has lost all legal right to the property and is not entitled to any further notices). At most, the owner holds a remote and amorphous interest in any excess purchase monies above and beyond those necessary to pay all costs and expenses, taxes and municipal claims, and mortgages, liens, and encumbrances against the property. 72 P.S. §§5860.205 and 5860.630.

In judging whether this statutory scheme comports with the requirements of due process, “[t]he criterion is not the possibility of conceivable injury, but the just and reasonable character of the requirements, having reference to the subject with which the statute deals.” Mullane, 339 U.S. at 315 (quoting American Land Co. v. Zeiss, 219 U.S. 47, 67, 31 S.Ct. 200, 207, 55 L.Ed. 82 (1911)). In other words, the words of the Due Process Clause, while “cryptic and abstract,” must be applied reasonably and fairly under the circumstances. Id. at 313. The “practicalities and peculiarities of the case” must be taken into, account. Id. at 314-15.

We believe that the means employed by the RETSL are justly and reasonably calculated under all the circumstances to notify the owner of a tax delinquency and the effect of this delinquency on his property interest if the taxes are not paid. They provide the owner with an opportunity to challenge the regularity or legality of the proceedings employed by the bureau in placing property for sale, as well as the amount and validity of the claim on which a sale is held, and give the owner an opportunity to “choose for himself whether to appear or default, acquiesce or contest.” Mullane, 339 U.S. at 314. They balance the vital interest of government to collect taxes, without which government would be unable to function, with the fundamental right of an owner not to be deprived of property without cause and without an opportunity to respond and be heard at a meaningful time and in a meaningful manner, the sine qua non of due process. When account is taken of the statutory scheme as a whole which precedes placement of property in the repository, and giving appropriate deference to the subject with which the statute deals, we conclude that no further steps to notify the owner are constitutionally required before property is sold from the repository by the Tax Claim Bureau.

CONCLUSION

For the reasons stated, the Trust’s motion for judgment on the pleadings on the basis of unconstitutionality of the RETSL as it pertains to the sale of property from the repository without additional notice to the property owner will be denied.

      . The RETSL defines “owner” as “the person in whose name the property is last registered, if registered according to law, or, if not registered according to law, the person whose name last appears as an owner of record on any deed or instrument of conveyance recorded in the county office designated for recording and in all other cases means any person in open, peaceable and notorious possession of the property, as apparent owner or owners thereof, or the reputed owner or owners thereof, in the neighborhood of such property; as to property having been turned over to the bureau under article Vll by any county, ‘owner’ shall mean the county.” 72 P.S. §5860.102. (footnote omitted)
      Under this definition, as the most recent grantee appearing in a deed or other instrument of conveyance recorded in the Carbon County Recorder of Deeds Office, the Trust was the owner of the property at the time of the sale to Seemiller.

      . Section 627(a) of the RETSL provides:
      “The bureau may, with the written consent of all the taxing districts where the property is located, accept an offer of any price for property placed in the ‘repository for unsold properties’ without court approval and published notice of sale. Any taxing district may not unreasonably withhold its consent to the sale of the property.” 72 P.S. §5860.627(a).
      Ironically, the Trust itself purchased the property from repository, the then current owners of the property being the defendants, Carmine S. Amato and Helen A. Amato.

      . Notice of the Trust’s challenge to the constitutionality of the RETSL in this respect has been given by the Trust to the attorney general of Pennsylvania in accordance with Pa.R.C.P. 235. The attorney general has not participated in these proceedings.

      . Section 618(a) of the RETSL provides:
      “The owner shall have no right to purchase his own property at a judicial sale, a private sale of from the bureau’s repository for unsold property under the provisions of this act.” 72 RS. §5860.618(a).

        For purposes of this limitation, the term “owner” means, inter alia, any individual or trust “who had any ownership interest or rights in the property.” 72 P.S. §5860.618(c). (emphasis added)

      . This decision assumes that the statutory requirements of the RETSL have been met prior to the property being placed in repository. Rivera v. Carbon County Tax Claim Bureau, 857 A.2d 208, 216 (Pa. Commw. 2004) (“Legal title to a property can only pass to the bureau when the statutory requirements of the [RETSL] have been met”). Where, however, notice is defective, and the sale is invalidated, the owner is not precluded from discharging a tax claim by payment. Ri

        vera, id. at 217. To the extent the Trust disputes compliance with these requirements, the dispute raises a factual issue not appropriate for resolution at this stage of the proceedings.


author: QUINOÑES ALEJANDRO, J,

text:
    Holmes v. University of Pennsylvania Health System

      C.P. of Philadelphia County,
    June Term 2004,
    no. 0349.

      James R. Radmore, for appellant.

      Michael J. Burns, for appellees.
    March 28, 2007

      . Darryl Holmes was also a plaintiff in this matter but died prior to trial. No estate was raised on his behalf.

   QUINOÑES ALEJANDRO, J,

INTRODUCTION

On June 8, 2004, Yvette Holmes (plaintiff) filed a civil action against the University of Pennsylvania Health System, the Trustees of the University of Pennsylvania, Carmen Williams M.D., Beth W. Rackow M.D., Premal Thaker M.D., Peter Craig M.D., Linda Chen M.D., and Angelina Castor M.D., (collectively, defendants) averring claims of professional liability arising from a hysterectomy performed on June 14, 2002, to address a painful endometriosis condition. The jury found in favor of defendants.

In this appeal, plaintiff essentially argues that this trial judge erred in precluding the use of a Social Security disability award as proof of her claim; in not charging on the vicarious liability of defendant University of Pennsylvania Health System (UPHS); and in failing to include defendant UPHS on the verdict sheet. This trial judge disagrees.

SUMMARY OF THE FACTS AND THE PROCEDURAL HISTORY

As background information, on October 6, 2006, a jury was selected to decide this matter. The presentation of trial testimony was scheduled to begin on October 9, 2006. Prior to the commencement of the trial testimony, numerous motions in limine were argued and decided, including, inter alia, plaintiff’s motion expounding that defendants were collaterally estopped from re-litigating a decision rendered by a Social Security Administrative Law Judge which found that plaintiff was entitled to Social Security disability benefits as of June 14, 2002 (coincidently, the date of her hysterectomy). This trial judge denied said motion.

From the trial testimony subsequently elicited, it is reasonable to infer that the jury considered the following evidence:

“As background medical information, plaintiff testified that starting around the age of 14, she complained of chronic problems with ovarian cysts, endometriosis, and pelvic inflammatory disease. She described these conditions as very painful for which she was prescribed Percocet.

“Sometime in the 1990s, plaintiff was involved in a motor vehicle accident which caused her to suffer chronic back pain during the period of 1994 through 2001.

“Defendant highlighted and plaintiff acknowledged three instances when plaintiff was treated for complaints affecting her left leg prior to her hysterectomy; to wit: (1) in May 1994, plaintiff was diagnosed with a back strain and prescribed Flexeril following complaints of a constant aching pain of three weeks duration in the left side of her back which radiated down into her left knee and caused numbness; (2) in July 1994, she was treated for complaints of a slight tingling in the back of her left calf; and (3) in April 1998, she was examined in the emergency room for complaints of pain of 10 days duration in the pelvic area against the spine and lower back which radiated into the left leg and hip.

“As to her painful endometriosis, plaintiff testified that she had undergone numerous unsuccessful laparoscopic procedures. In April 2002, plaintiff decided to undergo a hysterectomy as the ‘ last option’ to deal with her pain. The procedure was performed on June 14, 2002, by defendant doctors Williams, Thacker, and Rackow, at defendant Flospital of the University of Pennsylvania.

“Plaintiff testified that when she awakened from the procedure, she experienced excruciating pain in the areas of her back, groin, stomach, and left side radiating down to her feet, and immediately knew that she could not move her left leg, nor walk. Plaintiff emphasized that from the time of the surgery until her first follow-up visit a month later, she was barely walking. Subsequently, plaintiff’s condition progressively deteriorated, requiring first the use of a leg brace, then a walker, a scooter, and ultimately a wheelchair. Plaintiff stated that she needs a shower bench due to an inability to walk normally; and diapers and a bedside toilet chair due to a lack of bladder control. To assist her, a nurse comes to her home every day for eight hours and helps with meals, laundry, medication, dressing, bathing, and getting into and out of bed.

“Plaintiff’s medical and physical conditions following the surgery were described differently in the medical records and by defendant — physicians’ testimonies. For example, the medical chart reveals that: (1) on June 16, 2002, Dr. Thacker noted that plaintiff was ambulating without assistance; (2) later that day, Dr. Williams noted that plaintiff was out of bed without assistance and voiding freely; (3) on June 17, 2002, Dr. Rackow noted that plaintiff was ambulating without assistance and had a normal gait; and (4) the discharge summary dated June 18, 2002, and signed by plaintiff, noted that she was fully ambulatory, and left the hospital walking. Dr. Williams also testified that had plaintiff been unable to walk at any time during her post-operative hospital stay, ‘ [i]t would have been noted by multiple people. And there would have been an entire work-up to figure out why and how we could help her.’

“When confronted with this contradictory evidence on cross-examination, plaintiff testified that she believed that there was some sort of conspiracy with the hospital personnel, stating those notations were false, the testimony was lies, that ‘they have a job to perform and they write down what’s being asked of them to write down,’ and that after her surgery, she had difficulty obtaining her record because ‘ [i]t was always a lawyer had them.’”

On October 13, 2006, the jury returned a verdict in favor of defendants.

On October 23,2006, plaintiff filed a post-trial motion. Defendants filed a response, and on January 10, 2007, oral argument on these pleadings was heard. On January 16, 2007 this trial judge denied plaintiff’s motion for a new trial.

Dissatisfied, on January 23, 2007, plaintiff filed this appeal.

ISSUES

In response to an order issued on February 1,2007, in accordance with Pennsylvania Rule of Appellate Procedure 1925(b), plaintiff on February 7, 2007, filed of record and served onto this trial judge the following verbatim statement of matters complained of on appeal, averring:

“(1) The lower court erred in denying the motion for a new trial when it refused to permit plaintiff to cross-examine defendant’s medical expert as to the findings of a Social Security Administration Administrative Law Judge that plaintiff was entitled to a period of disability beginning on June 14, 2002, the date of the surgery involved in this litigation.

“(2) The lower court erred in denying the motion for a new trial when it refused to include University of Pennsylvania Health System, a named defendant, on the verdict sheet where said defendant remained a party to the action and had not been removed in any pretrial proceeding nor had there been a motion for a directed verdict in favor of said defendant during the trial.

“(3) The lower court erred in denying the motion for a new trial when it refused to charge the jury on whether defendant University of Pennsylvania Health System should be held vicariously liable for the acts of his employees.

“(4) The lower court erred in denying the motion for a new trial when its charge to the jury inadequate [sic] by failing to include the issue of vicarious liability to the prejudice of plaintiff.”

LAW AND DISCUSSION

As stated, plaintiff claims that this trial judge erred when precluding certain evidence, instructing the jury, and denying her post-trial motion on those allegations. The standard of review of a ruling on a post-trial motion requesting a new trial is well-settled. The decision to grant or deny a request for a new trial is within the sound discretion of the trial court. Andrews v. Jackson, 800 A.2d 959, 961 (Pa. Super. 2002), appeal denied, 572 Pa. 694, 813 A.2d 835 (2002). An appellate court may not disturb atrial court’s ruling unless the trial court palpably abused its discretion or committed an error of law. Neison v. Hines, 539 Pa. 516, 520, 653 A.2d 634, 636 (1995); Andrews, 800 A.2d at 961. An abuse of discretion is not merely an error of judgment. Discretion is abused if, in reaching a conclusion, the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable or the result of partiality, prejudice, bias, or ill will. See Fanning v. Davne, 795 A.2d 388, 393 (Pa. Super. 2002), citing, Paden v. Baker Concrete Construction Co. Inc., 540 Pa. 409, 412, 658 A.2d 341, 343 (1995). However, an abuse of discretion may not be found merely because the appellate court might have reached a different conclusion. The court’s action requires a showing of manifest unreasonableness, or partiality, prejudice, bias, or ill will, or such lack of support as to be clearly erroneous. Fanning, 795 A.2d at 393.

When deciding to grant or deny a post-trial motion for a new trial, the trial court must engage in a two-part analysis: (1) whether a mistake occurred at trial; and (2) whether the mistake was prejudicial to the moving party. Slappo v. J’s Development Associates Inc., 791 A.2d 409, 414 (Pa. Super. 2002). A new trial is warranted where the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice. Neison, 539 Pa. at 520, 653 A.2d at 636. However, a new trial should not be granted merely because of a conflict in testimony or some irregularity which occurred during trial or because the trial judge, on the same facts, would have arrived at a different conclusion. Harman ex rel. Harman v. Borah, 562 Pa. 455, 467, 756 A.2d 1116, 1122 (2000). The moving party must demonstrate to have suffered prejudice from the mistake. Id. at 467, 756 A.2d at 1122. (citations omitted)

Here, plaintiff initially argues that this trial judge erred in denying her motion in limine and, thereby, precluding the use of her Social Security disability benefit award as proof of defendants’ negligence and her damages, and/ or precluding its use for impeachment and cross-examination of defendants’ medical experts. Plaintiff contends that an administrative law judge from the Social Security Administration found her disabled and entitled to a period of disability commencing on June 14, 2002, the date of the alleged malpractice. Plaintiff further contends that this administrative decision is proof of defendants’ negligence. Plaintiff is mistaken. This administrative determination is not at issue in this matter. What is at issue is whether defendants’ were negligent in the care rendered to plaintiff at the time of her hysterectomy.

In denying plaintiff’s motion in limine, this trial judge relied, in part, on Frederick v. Action Tire Co., 744 A.2d 762, 766 (Pa. Super. 1999), which holds that a Social Security ruling is not preclusive as to disability status in a negligent action, and that collateral estoppel is only applicable when: “An issue decided in a prior action is identical to one presented in a later action; [t]he prior action resulted in a final judgment on the merits; [t]he party against whom collateral estoppel is asserted was a party to the prior action, or is in privity with a party to the prior action; and [t]he party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior action.” See also, Rue v. K-Mart Corporation, 552 Pa. 13, 16, 713 A.2d 82, 84 (1998).

Administrative Law Judge Irving A. Pianin’s decision clearly indicates: “Although the claimant’s ability to ambulate effectively has deteriorated since her surgery in June 2002, there is no specific determination of etiology causing the significant pain and weakness experienced by the claimant subsequent to her hysterectomy ____” (This trial judge’s emphasis.) Since the issue of the causation of plaintiff’s disability was not before the administrative law judge, nor were defendants parties] in the Social Security matter, nor did they have the opportunity to litigate any aspect of plaintiff’s Social Security claim, this trial judge opines that defendants were not estopped from defending themselves in this malpractice action. Clearly, the issues at the administrative hearing and the issues at trial were very different, and required different burdens of proof. The administrative decision, which found plaintiff disabled from substantial gainful activity, did not determine the source or cause of her disability. At trial, the jury was asked to determine whether defendants were (individually or collectively) negligent in their care of plaintiff and, if so, whether their negligence was a factual cause of her alleged injuries, issues not before the administrative law judge. This trial judge opines that the motion in limine was properly denied.

Plaintiff contends, however, that defendants’ experts, Larry James Copeland M.D. and Terry Heiman-Patterson M.D., both testified on direct examination that they reviewed plaintiff’s Social Security records as part of their assessment of the documents submitted to them and, therefore, this opened the door for the use of the Social Security record and the administrative law judge’s findings. In addition, plaintiff contends that Dr. HeimanPatterson also testified incorrectly on cross-examination that plaintiff had been denied Social Security benefits. Plaintiff argues that because of these statements, plaintiff should have been allowed to cross-examine Dr. HeimanPatterson using the Social Security records, including the disability award.

A careful review of the trial transcript reveals that defendants presented Dr. Copeland as their expert obstetrician gynecologist. Dr. Copeland was asked on direct-examination to briefly list the materials reviewed prior to preparing his report. In response, Dr. Copeland listed the records reviewed, which included plaintiff’s Social Security records. On cross-examination, plaintiff’s counsel did not ask him any questions on this topic nor did counsel preserve any specific issue regarding Dr. Copeland’s testimony as it relates to the Social Security benefits received. Under these circumstances, plaintiff waived this issue for appellate review as to Dr. Copeland. See Harman ex rel. Harman v. Borah, 756 A.2d 1116 (Pa. Super. 2000), holding that a party waives an issue concerning perceived trial court error if the party fails to preserve the issue with a timely and specific objection at trial.

As to the testimony of Dr. Heiman-Patterson, defendants’ neurology expert, on direct examination Dr. Heiman-Patterson was also asked to briefly identify the materials reviewed prior to issuing her report. Dr. Heiman-Patterson simply stated that the Social Security records were within the materials reviewed. Dr. Heiman-Patterson did not reference the administrative law judge’s findings, nor did she offer any testimony and/or opinion regarding whether plaintiff met the standards of “disability” or when any “disability” may have arisen for the purpose of Social Security benefits.

In response to a question posed during cross-examination, Dr. Heiman-Patterson testified that she believed the benefits had been denied. Despite this trial judge’s ruling on the motion in limine, counsel for plaintiff attempted (on several occasions) to introduce evidence of the Social Security disability award in an attempt to establish her claim against defendants. An excerpt of the trial transcript reveals the following:

“Q. What parts — you commented on the Social Security records. What part of the Social Security records did you review?

“A. There were some disability records, some submissions. It was one of the denials. I don’t have those with me.

“Q. You reviewed the denials. Did you review the findings by the administrative law judge—

“Mr. Lynch. Objection. Your honor. May we be heard at sidebar?

“The Court. Objection sustained. We are not going into that.”

Plaintiff further argues that she should have been permitted to question Dr. Heiman-Patterson regarding the doctor’s statement that Social Security benefits had been denied, since the jury was left with the impression that plaintiff’s injuries were not serious enough to qualify for disability benefits and, therefore, this trial judge committed a reversible error. Plaintiff relies on Boucher v. Pennsylvania Hospital, 831 A.2d 623 (Pa. Super. 2003), wherein the appellate court held that an expert may express an opinion which is based on material not in evidence, including other expert opinions, where such material is of a type customarily relied on by experts in his or her profession. Plaintiff notes that under Primavera v. Celotex Corp., 415 Pa. Super. 41, 51, 608 A.2d 515, 520 (1992), such hearsay is admissible because the expert’s reliance on the material provides its own indication of the material’s trustworthiness.

Plaintiff, however, loses sight of the fact that Dr. Heiman-Patterson did not state that she had relied upon the administrative law judge’s ruling to form her opinion. Neither did she give any specific testimony referring to the administrative law judge’s decision. It was counsel who raised the subject matter to the expert doctor and reiterated the denial of benefits. The record supports this trial judge’s belief that plaintiff’s line of questioning was an attempt to circumvent this trial judge’s ruling on the motion in limine. No one doubts that an administrative law judge found plaintiff disabled from engaging in substantial gainful activity. However, that finding is not relevant to the issue of whether defendants were negligent during the hysterectomy; that is, whether defendants breached the standard of care and whether that breach was a factual cause of plaintiff’s injuries. This administrative finding is not something that a neurologist would generally rely on to determine whether medical negligence occurred. This trial judge opines that no error was committed in denying the motion in limine and when ruling on subsequent objections which dealt with the subject matter of said motion.

Verdict Sheet and Jury Charge

Next, plaintiff argues that this trial judge erred in refusing to include defendant University of Pennsylvania Health System (UPHS) on the verdict sheet and in refusing to charge the jury on the vicarious liability of defendant UPHS for the alleged negligent acts of its employees. Plaintiff states numerous reasons why this trial judge erred and contends that these constituted reversible errors.

As to the issue of vicarious liability per se, it first arose during the charging conference when the charge was requested. The charging conference occurred outside the presence of the jury prior to the conclusion of the presentation of all the trial testimony. Plaintiff had previously asserted that defendant UPHS was defendant-physicians’ employer. Defendant-physicians denied this allegation and asserted that their employer was defendant Trustees of the University of Pennsylvania. After hearing argument for and against the inclusion of the charge, this trial judge held the issue under advisement. Relevant to this discussion is the following excerpt of the transcript:

“The Court: Well, I thought, again, that there was an agreement that if any of the defendant physicians are found liable, then it’s understood that the University of Pennsylvania Health System will be liable. That’s agreed.

“Mr. Lynch: That’s correct, your honor. We will stipulate to the correct employer, whether it’s the Trustees of the University of Pennsylvania or the UPS [sic] Health System, whoever that will need to be for legal purposes, we’ll stipulate to that. Then the court could mold the verdict accordingly.

“The Court: I don’t really think in this case it’s important to charge the jury on vicarious liability. Tell me why you think it’s important.

“Mr. Radmore: Because I’m concerned the jury will have empathy for the individual doctors if they don’t understand that whatever — if there’s any compensation it gets paid by the hospital, not by the doctors. And that’s what my concern is.

“The Court: I have never thought that, at least the jurors in my courtroom, are overly sympathetic to doctors. If they believe there was negligence, my jurors have never hesitated to find it against doctors. But if you feel that is important for your case, then I will charge that— but it’s not only—

“Mr. Radmore: It’s all of them, correct. As far as the — I may, at the end of their testimony, agree to let the residents out. I’m not sure what they’re going to testify to because, you know, the attending is responsible for what they do anyway. That’s why I just put that in. But if I don’t, then I would like each one.

“Mr. Lynch: Your honor, my position is that Mr. Rad-more is not quite correct when he talks about the money coming from the institution not the doctor. Obviously, we’re not talking necessarily ab[o]ut personal liability here, although that’s a conceivable possibility in the end. But the insurance policies involved here are both the individual physician, at least in Dr. Williams’ case, as well as the institution. To say that really he needs to have the jury charged on the institutions in order to take the light off of where the money is coming from is not quite accurate. Finally, your honor, I think that charging on vicarious liability myself confuse[s] the jury where they’re not going to be asked in the questionnaire, for good and sufficient reasons. I don’t think there’s any necessity for vicarious liability. We’re essentially conceding that if there’s a verdict against one of the physicians, that it can be molded to include the institution involved as the employer on the basis of vicarious liability.

“The Court: I’ll hold this under advisement. I’ll think about it. My inclination is not to charge. But I’m thinking about it, just to let you know.

“Mr. Radmore: Okay, your honor.”

As to the trial testimony, none of the defendant-physicians were asked nor did they offer testimony as to the identity of their employer at the time of the incident. A review of the trial transcripts reveals that vague references were made to defendant UPHS, and even less references were made of defendant Trustees of the University of Pennsylvania. None of these vague references dealt with the employer-employee relationship of defendant-physicians and the institutions. There is no testimony establishing which entity is the proper employer. Under the circumstances, as plaintiff failed to present evidence as to the identity of the proper employer, the charge of vicarious liability was properly excluded from the jury charge.

Notwithstanding this factual omission, defendant-physicians were willing to stipulate that if they were found to be negligent and said negligence was a factual/ substantial cause of the injury suffered, their employer would be vicariously liable for their conduct, and this trial judge would mold the verdict to include a judgment against the employer on the basis of vicarious liability. Plaintiff refused this stipulation.

Prior to charging the jury, this trial judge noted, outside of the presence of the jury: “For the completion of the record, I am not charging vicarious liability. I think that was the only one I had under advisement.” Plaintiff did not voice any objections to this ruling at any time, despite having been provided with an opportunity to do so prior to the jury being excused to deliberate. See Pa.R.C.P. 227(b), which provides that all exceptions to the charge of the jury shall be taken before the jury retires. Brown v. Philadelphia Tribune Co., 447 Pa. Super. 52, 668 A.2d 159 (1995), which held that the failure of trial counsel to specifically object to jury instruction waived issue on review. Counsel for the parties responded on the record that there was no need for a sidebar. Consequently, it is this trial judge’s opinion that plaintiff has waived this issue for appellate review.

In plaintiff’s other argument of error by this trial judge, plaintiff relies on the holding of Herbert v. Parkview Hospital, 854 A.2d 1285 (Pa. Super. 2004), to contend that this trial judge erred in not including Standard Jury Instruction 4:02, vicarious liability, as a jury charge. Plaintiff’s reliance is misplaced. The matter of Herbert concerns corporate negligence, an independent cause of action or basis for finding of liability against a hospital which was not pled by plaintiff.

Nonetheless, plaintiff contends that not charging on vicarious liability caused the deliberations to be incomplete, and the jury to be confused as evidenced by the question submitted during deliberation inquiring which doctor performed which task in the surgery. It appears that plaintiff interpreted the jury’s inquiry to mean that had the jury received an instruction on vicarious liability and had defendant UPHS been included on the verdict slip, “this would likely have not been a concern,” as “[wjhatever the specific task may have been for a particular physician would not have been as important because the ultimate liability would be of U of P.” This convoluted argument seems to suggest that if the jury had known that defendant-physicians’ employers would be the one responsible or liable for the negligence of defendant-physician(s), the jury would not have been interested in nor cared about the culpability of the individual physician nor, perhaps, of the question of whether there was negligence on the part of any of the defendant-physicians. This argument lacks merit.

Assuming arguendo that this trial judge’s jury instructions were in error, a new trial will be awarded only where the jury instruction might have prejudiced the appellant. Lilley v. Johns-Manville Corp., 408 Pa. Super. 83, 95, 596 A.2d 203, 209 (1991). If the jury had found any of the individual defendants to be liable, the verdict would have been molded against the employer as well, by agreement. As the jury found no liability against any individual defendants, no liability could have been entered against the employer and, therefore, there is no prejudice. Even had defendant UPHS been on the verdict slip, defendant UPHS is only liable if an individual defendant-physician was negligent, and said negligence was a factual or substantial factor of the injury suffered. The jury found none of the defendant-physicians was negligent. Any error in not including the institution was, at most, a harmless error. Under the cited case law and analysis, a new trial is not warranted.

CONCLUSION

Based on the foregoing discussion, this trial judge is of the opinion that no errors and/or abuses of discretion were committed. This trial judge respectfully requests that this appeal be dismissed; and that the order dated January 16, 2007, and the juiy verdict be affirmed.

      . On May 24,2006, the Honorable Annette Rizzo granted a motion for summary judgment and dismissed, with prejudice, Peter Craig M.D., Linda Chen M.D., and Angelina Castor M.D., as party defendants.

      . N.T. 10/11/2006, 42:22-44:12.

        . Id. at 44:17-45:12.

      . N.T. 10/11/2006, 10:19-21.

      . N.T. 10/12/2006,166:2-167:18.

      . N.T. 10/11/2006,29:16-24.

        . Id. at31:22-33:7.

        . Id. at 34:10-20.

      . Id. at 47:18-23.

      . N.T. 10/10/2006, 61:19-22, 63:18-22.

      . N.T. 10/11/2006, 56:8-15.

      . Id. at 57:6-12.

      . Id. at 57:22-24, 58:5-8.

      . Id. at 20:20-28:21.

      . Id. at 27:23-28:8.

      . N.T. 10/11/2006, 68:11-69:11.

      . Id at 70:4-15.

      . Id. at 71:12-24.

      . N.T. 10/12/2006, 84:22-85:23.

      . Id. at 237:2-9.

      . N.T. 10/11/2006, 66:11-20, 69:6-11, 70:11-20, 71:10-24; N.T. 10/12/2006, 80:11-24, 81:10-22.

      . N.T. 10/12/2006, 157:12-158:3.

      . N.T. 10/12/2006, 206:25-209:6.

      . See defendants’ answer to plaintiff’s third amended complaint, paragraph 10.

      . N.T. 10/13/2006, 9:2-11:19.

      . N.T. 10/13/2006,177:13-16.

      . Id. at 214:13-16.

      . Brief of plaintiff in support of concise statement of matters complained of pursuant to Rule of Appellate Procedure 1925(b), section III, B.


author: COX, J,

text:
    Savage v. Young Galvanizing Inc.

      C.P. of Lawrence County,
    no. 10534 of 2000.

      Marvin Abrams, for plaintiff.

      Patrick L. Mechas, for defendant Young Galvanizing Inc.
    January 11, 2007
   COX, J,

Plaintiff in the instant matter, Tyrone Savage, has filed an appeal in response to an order dated November 17,2006, in which this court granted defendant, Young Galvanizing Inc.’s, motion for summary judgment. Thereafter, in response to this court’s order, plaintiff timely filed a statement of matters complained of on appeal. More specifically, plaintiff contends that genuine issues of material fact remain unresolved as to his employment status and the nature of the relationship between the defendants and, therefore, summary judgment was improperly granted.

On June 10, 1998, plaintiff was injured at defendant Young Galvanizing Inc.’s facility, located in Pulaski Township, Pennsylvania, when he was struck in his right arm by a steel beam. Plaintiff sustained severe injuries, including amputation of the right arm below the elbow. After sustaining the injuries, plaintiff attempted to file a workers’ compensation claim and discovered he was under the insurance coverage of defendant Thornton Temporary Services, a “staffing firm” which recruits employees for either temporary or temporary to permanent employment. Plaintiff contends that he never heard of Thornton and, therefore, could not be an employee of the company. Additionally, plaintiff claims that defendant Young denied being his employer. As a result, plaintiff argues that he was an independent contractor when he was injured. In May of 2000, plaintiff brought a negligence action against Young as well as claims for fraud and misrepresentation and punitive damages against all named defendants.

Defendant Young filed a motion for summary judgment claiming, at the time of the incident, it was plaintiff’s statutoiy employer on the theory that plaintiff was a “borrowed employee.” As such, defendant Young claims it is immune from tort liability under the Workers’ Compensation Act, 77 P.S. §481. Plaintiff, on the other hand, contends that he was an independent contractor and has the ability to bring tort suits against the defendants. On November 17, 2006, this court entered an order granting defendant’s motion for summary judgment on the grounds that plaintiff failed to establish a meritorious claim that he was entitled to bring a claim sounding in tort, even though he was given a generous amount of time to complete discovery and provide this court with evidence to support his suit.

Summary judgment is a procedural rule utilized to eliminate cases prior to trial when it is established that a party is unable to consummate a claim or defense after the opportunity to complete relevant discovery. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). Any party may move for summary judgment, but the moving party bears the burden of demonstrating that no genuine issue of material fact exists and he or she is entitled to judgment as a matter of law. Kafando v. Erie Ceramic Arts Company, 764 A.2d 59, 61 (Pa. Super. 2000) citing Rush v. Philadelphia Newspapers Inc., 732 A.2d 648, 650-51 (Pa. Super. 1999). Accordingly, “[t]he reviewing court must view the record in the light most favorable to the non-moving party and resolve all doubts as to the existence of a genuine issue of material fact against the moving party.... Only when the facts are so clear that reasonable minds could not differ can a trial court properly enter summary judgment.” Kvaerner Metals Division of Kvaerner U.S. Inc. v. Commercial Union Insurance Co., 589 Pa. 317, 329, 908 A.2d 888, 895-96 (2006).

Although the moving party bears the burden of proving the absence of any genuine issue of material fact, the non-moving party cannot ignore the motion and merely rely on the allegations or denials of their pleadings to avoid summary judgment. SeePa.R.C.P. 1035(d). Rather, the non-moving party must respond to a motion for summary judgment and expound to the court that a genuine issue of material fact remains for trial. DeSantis v. Frick Company, 745 A.2d 624 (Pa. Super. 1999). “Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which it bears the burden of proof... establishes the entitlement of the moving party to judgment as a matter of law.” Stephens v. Paris Cleaners Inc., 885 A.2d 59, 63 (Pa. Super. 2005) quoting Murphy v. Duquesne University of the Holy Ghost, 565 Pa. 571, 590, 111 A.2d 418, 429 (2001).

When an appellate court reviews an order granting summary judgment, “the court’s scope of review is limited to a determination of whether the trial court committed an error of law or an abuse of discretion.” Dwight v. Girard Medical Center, 154 Pa. Commw. 326, 623 A.2d 913 (1993). Thus, an appellate court will reverse a trial court’s granting of a motion for summary judgment only “upon a finding that a genuine issue of material fact exists or where the moving party was not entitled to such a judgment as a matter of law.” Wilkes ex rel. Mason v. Phoenix Home Life Mutual Insurance Co., 587 Pa. 590, 606, 902 A.2d 366, 375 (2006) citing Mullin v. PennDOT, 582 Pa. 127, 135, 870 A.2d 773, 778 (2005).

In the case sub judice, the plaintiff has had ample opportunity to complete relevant discovery and establish his claim. On March 17, 2005, seven years after the incident and five years after filing suit, upon plaintiff’s request, this court granted plaintiff a 90-day extension to complete discovery. Obviously, this amount of time was not sufficient, and on March 16, 2006, this court once again granted plaintiff’s request for an extension to complete and review discovery, this time allowing 120 days. This court opines that, even after this considerable amount of time, plaintiff still failed to produce evidence supporting his claim that he was an independent contractor.

Case law clearly sets forth a test to determine whether a person is an employee or independent contractor. See Weatherly Area School District v. Whitewater Challengers Inc., 532 Pa. 504, 616 A.2d 620 (1992). In Weatherly, the court stated:

“The test for determining whether one is a servant or an independent contractor as [sic] follows:

“The legal distinction between an employee and an independent contractor is so well established as to require little, if any, discussion. The characteristic of the former relationship is that the master not only controls the result of the work but has the right to direct the way in which it shall be done, whereas the characteristic of the latter is that the person engaged in the work has the exclusive control of the manner of performing it, being responsible only for the result.... ‘Broadly stated, if the contractor is under the control of the employer, he is a servant; if not under such control, he is an independent contractor ____It is not... the fact of actual interference or exercise of control by the employer, but the existence of the right or authority to interfere or control, which renders one a servant rather than an independent contractor.”’ Id. at 508, 616 A.2d at 622 citing Moon Area School District v. Garzony, 522 Pa. 178, 190, 560 A.2d 1361, 1367(1989) (citing Feller v. New Amsterdam Casualty, 363 Pa. 483, 486, 70 A.2d 299, 300 (1950)). This test clearly illustrates that control is a significant factor in distinguishing an employee and independent contractor. In Fye v. Woodland Forrest Products Inc., 39 D.&C.4th 420, 427 (Clearfield Cty. 1998), the court stated that control is also a significant factor in “borrowed employee” cases. The court acknowledged that “under the common-law definition of the master-servant relationship, whether a servant furnished by one person to another becomes the employee of the person to whom he is loaned is determined by whether ‘he continues liable to the direction and control of his master, or becomes subject to that of the party to whom he is lent or hired.’... The right to control performance of work is the overriding factor in determining whether employee-employer relationship exists.... Moreover, the existence of the right to control the work to be done and the manner of performance is critical irrespective of whether the control is exercised.” Id. at 427. (citations omitted) (emphasis added)

In the case at bar, plaintiff failed to produce any evidence to suggest defendant Young did not maintain control of how, when, and where the work plaintiff performed would be carried out. Rather, the facts presented by the defendant to this court clearly illustrate defendant Young controlled all aspects of the work plaintiff would perform while employed. The facts demonstrate defendant Young hired plaintiff to perform general labor duties, a position commonly held by hired employees, not independent contractors. Further, in the deposition of Richard Bookser, a representative of Select Staff, he testified that defendant Young would have provided all training and job orientation as well as supervision of plaintiff’s day-to-day work performance. Also, Mr. Bookser testified that defendant Young would have assigned to Mr. Savage the particular tasks for which he was responsible each day. Moreover, defendant Young had the right to terminate the employment of plaintiff at any time. Therefore, this court is of the opinion that these facts generate the impression that defendant Young was in control of plaintiff when the injury occurred. (See depo. of Richard Bookser, p. 95, line 10 to p. 97, line 14.)

Additionally, the Pennsylvania Supreme Court has stated, “one cannot be ‘customarily engaged in an independently established trade, occupation, profession or business’ where ‘he is dependent upon another for the continuance of his employment and thus becomes unemployed through no fault of his own.’” Danielle Viktor Ltd. v. Department of Labor and Industry, 586 Pa. 196, 224, 892 A.2d 781, 798 (2006). Rather, a person may be considered an independent contractor “only if he or she is in business for himself or herself.” Viktor supra. Again, plaintiff identifies no evidence that would indicate his continued employment was not dependent upon another person or entity. Nor did the plaintiff establish any evidence suggesting he is in business for himself. Rather, the evidence indicates he was an employee of another. For example, during Dr. John Thornton’s deposition, he identified his documents that related to his payroll report for the quarter ending on June 30,1998. (See John Thornton depo. pp. 31-32.) In this report, it demonstrated that plaintiff was paid wages from Select Staffing Inc. for work performed in June of 1998. (See id., pp. 33-34.) Moreover, after plaintiff was injured, he attempted to file a workers’ compensation claim and became aware that he was covered under the insurance of defendant Thomton Temporary Services. In consideration of all the facts presented to this court, it is clear that at the time of injury, plaintiff was “borrowed” by defendant Young from a staffing agency operated by John Thornton.

This court concludes that the evidence presented clearly establishes that plaintiff was an employee, not an independent contractor. Thus, even when viewing the record in the light most favorable to the plaintiff, this court determined that the defendant has clearly established the non-existence of a genuine issue of material fact and plaintiff failed to provide sufficient evidence to support his claim. Plaintiff may have established that a genuine issue of material fact may remain as to which agency employed plaintiff. However, resolution of this issue would still result in the denial of plaintiff’s tort claims in accordance with 77 P.S. §481. This court maintains the plaintiff’s only avenue for redress of his injuries is via workers’ compensation. Therefore, this court’s order granting defendant Young’s motion for summary judgment was proper.

ORDER

Now this January 11, 2007, an appeal having been filed in the above-captioned case, the court directs that the attached opinion be filed to satisfy the requirements of Pa.R.A.P. 1925(a). The prothonotary of Lawrence County is directed to immediately assemble the record and transmit said record to the Superior Court of Pennsylvania as required by the applicable Rules of Appellate Procedure.

The prothonotary is directed to serve a copy of this order of court and attached opinion upon counsel of record, Marvin Abrams, Esquire and Patrick L. Mechas, Esquire.

      . Plaintiff identifies potential discrepancies relating to the staffing agency that actually employed him.

      . See page 386 infra.

      . 77 P.S. §481 (a) provides that “The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes (sic), his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108.”

      . Mr. Bookser confirmed that defendant Young would provide “[d]ay-to-day instructions, by hour, by half hour, what to do and when to do it and when to take a break, how to do [his] job . . . ,” which indicates defendant Young exercised total control over an employee, regardless of whether they were hired from a temporary staff or regularly employed by the company.

      . There was evidence presented to this court which shows Thornton Temporary Services ceased operation prior to plaintiff’s injury. Although it is unclear why Thornton was named the insurance carrier when plaintiff filed his workers’ compensation claim, Dr. Thornton’s deposition clearly illustrates his company has changed its name several times.


author: BROWN JR., RJ,

text:
    Temple Development Company L.P. v. RadioShack Corporation

      C.P. of Centre County,
    no. 2005-2808.

      David B. Consiglio, for plaintiff.

      Robert R Corbin, for defendant.
    March 26, 2007
   BROWN JR., RJ,

Before the court is a motion for summary judgment filed by plaintiff Temple Development Company L.P. Because this court determines a genuine issue of material fact remains, plaintiff’s motion is denied.

HISTORY

On September 7,1999, plaintiff Temple Development Company L.P. and defendant RadioShack Corporation, formerly, and successor in interest of, Tandy Corporation entered into a lease agreement wherein which defendant leased retail space from plaintiff in North Atherton Place Shopping Center in Patton Township, Centre County. The original term of the lease was for five years. However, the parties subsequently agreed to extend the lease until 2010.

The lease agreement provides defendant will pay plaintiff a fixed minimum rent of $2,465.63 per month during the term of the lease. However, the lease agreement contains a provision whereby, in the event plaintiff violates the terms of a “product exclusivity” provision and fails to cure such violation, defendant has the option of paying the lesser of the fixed minimum rent or 3 percent of gross sales monthly. The “product exclusivity” provision states that during the term of the lease, no space within the shopping center or any adjacent property owned by plaintiff will be “used for the retail sale or display of electronic equipment and components, including, but not limited to, any type of cellular or digital phones and/or transmitting equipment, Compac computers, stereo equipment, any type of satellite equipment, or related accessories to any of the foregoing.” Lease agreement, section 26A.

On October 8, 2004, defendant advised plaintiff that defendant was exercising its option to pay 3 percent of gross sales monthly in lieu of the fixed minimum rent. Defendant explained it was entitled to exercise the lesser-rent option because certain products sold by E.B. Games, another tenant in the shopping center, violated the “product exclusivity” provision in the parties’ lease agreement.

On August 8,2005, plaintiff filed a complaint against defendant. In its complaint, plaintiff alleges the products sold and displayed by E.B. Games do not trigger the lesser-rent option. Accordingly, plaintiff alleges defendant owes the difference between the amount defendant has been paying since exercising the lesser-rent option and the amount designated as the minimum fixed rent. Plaintiff also alleges in its complaint that defendant committed an “event of default” under the lease agreement, thereby entitling plaintiff to evict defendant.

On November 29, 2006, plaintiff filed the motion for summary judgment now before this court. Oral argument on plaintiff’s motion was held on February 8, 2007.

DISCUSSION

In its motion, plaintiff maintains it is entitled to summary judgment in its favor, pursuant to Pa.R.C.P. 1035.2(1), consisting of the immediate eviction of defendant, payment of past due rent plus interest, and payment of all costs by defendant. This court disagrees plaintiff is entitled to summary judgment.

Under Pa.R.C.P. 1035.2(1), “[ajfier the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessaiy element of the cause of action or defense which could be established by additional discovery or expert report.”

Pennsylvania case law explains that “[s]ummary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” 202 Island Car Wash L.P. v. Monridge Construction Inc., 913 A.2d 922, 925 (Pa. Super 2006) (citing Atcovitz v. Gulph Mills Tennis Club Inc., 571 Pa. 580, 585, 812 A.2d 1218, 1221 (2002)). The record must be viewed “in the light most favorable to the nonmoving party, resolving all doubts as to the existence of a genuine issue of material fact against the moving party.” Id. “When the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment.” Id.

In the present matter, this court determines summary judgment in favor of plaintiff is not appropriate because a genuine issue of material fact remains: whether or not the products sold by E.B. Games (specifically, ethemet cables and various game consoles and related equipment) violate the “product exclusivity” provision in the parties’ lease agreement. This court is unable to determine, as a matter of law, plaintiff is entitled to payment of past due rent, as well as eviction of defendant, when an issue remains as to whether or not the merchandise sold by E.B. Games triggers the lesser-rent option in defendant’s lease. Accordingly, this court denies plaintiff’s motion for summary judgment.

ORDER

And now, March 26,2007, plaintiff’s motion for summary judgment is denied.