author: COX, J.,

text:
    Commonwealth v. Barbati

      C.P. of Lawrence County,
    no. 748 of 2009.

      Luanne Parkonen, for the Commonwealth.

      Bradley G. Olson, for defendant.
    March 5, 2010
   COX, J.,

Before the court for disposition is the omnibus pretrial motion filed on behalf of the defendant Eric T. Barbati, which sets forth the following arguments:

(I) The evidence discovered in the defendant’s vehicle during the search by Officers Richard Ryhal and James Hoyland should be suppressed because the search was the product of invalid consent provided during an investigatory detention that was not supported by reasonable suspicion;

(II) The defendant’s written statement should be suppressed because it was obtained through the use of illegally obtained items seized from the defendant’s vehicle and the defendant was not provided with Miranda warnings prior to issuing his statement; and

(III) The Commonwealth failed to provide sufficient evidence that the defendant committed theft from a motor vehicle, theft by unlawful taking and receiving stolen property.

On June 25,2009 at 3:15 a.m., Officers Richard Ryhal and James Hoyland of the New Castle Police Department were patrolling East Washington Street, New Castle, Lawrence County, Pennsylvania near A-Plus convenient store and gas station. Officer Ryhal observed the defendant operating a gold Toyota Camry, even though he had a suspended driver’s license and the registration plate was expired. Shortly thereafter, the officers effectuated a traffic stop on Superior Street. It must be noted that while conducting the initial stop the officers noticed that the Pennsylvania State Police had placed a “Be On Look Out” or “BOLO” for the vehicle. It appears that the officers did not know the reason for the BOLO when they stopped the vehicle. Shortly thereafter, two Pennsylvania State Police troopers arrived and spoke with the defendant. The testimony is unclear as to whether the police officers knew why the troopers wanted to speak with the defendant. It appears that the troopers wanted to question the defendant regarding several thefts involving automobiles. Subsequently, Officers Ryhal and Hoyland approached the vehicle and noticed that there were a large number of items inside of it. Officer Ryhal issued citations to the defendant, seized the defendant’s license and informed him that he was free to leave. However, the defendant could not operate the vehicle because he was cited for driving with a suspended license. Further, the vehicle could not be driven as the registration had expired. Immediately after issuing the citations, Officer Ryhal requested permission to search the vehicle, which was granted by the defendant.

Officers Ryhal and Hoyland searched the vehicle and discovered a digital camera, GPS units, several pocket knives, lighters and sunglasses. Officer Ryhal recognized the sunglasses and a green pocket knife because those items were stolen from his blue pickup truck. He informed Officer Hoyland that the items belonged to him and Officer Hoyland conducted the remainder of the investigation. The defendant was taken into custody at that time. Subsequently, Officer Hoyland provided the defendant with a form stating his Miranda rights. The officer read the defendant his rights verbatim from the form. The defendant signed and dated the Miranda rights form provided to him by Officer Hoyland. Afterwards, the defendant supplied Officer Hoyland with a written statement explaining that he had stolen a knife and a pair of sunglasses from a blue pickup truck on the North Hill. The defendant signed his written statement.

The defendant pleaded guilty to the summary offenses for driving while operating privilege is suspended or revoked and registration and certificate of title required. However, the defendant has also been charged with two counts of theft from a motor vehicle, receiving stolen property, theft by unlawful taking — movable property and loitering and prowling at nighttime. The defendant has filed this omnibus pretrial motion seeking suppression of the evidence discovered as a result of the search conducted by the officers, with the defendant’s consent, because it was the product of an investigatory detention that was not justified by reasonable suspicion that a crime was afoot. Additionally, the defendant contends that his statement should be suppressed as it was coerced by the discovery of items illegally obtained from the defendant’s vehicle and the defendant was not provided with his Miranda warnings. The defendant’s final argument is the Commonwealth failed to produce the necessary evidence to establish a prima facie case that the defendant committed theft from a motor vehicle, theft by unlawful taking and receiving stolen property.

First, the court must address the defendant’s contention that the search of the defendant’s vehicle was the result of an investigatory detention which was not supported by reasonable suspicion. Police officers may stop a motor vehicle for a violation of the Motor Vehicle Code and request license and registration, but must allow the driver to leave once the citation is issued unless the officer has reasonable suspicion to suspect an illegal drug transaction or another serious crime. Commonwealth v. Pless, 451 Pa. Super. 209, 212, 679 A.2d 232, 234 (1996) (citing Commonwealth v. DeWitt, 530 Pa. 299, 304, 608 A.2d 1030, 1032 (1992); Commonwealth v. Talley, 430 Pa. Super. 351, 356, 634 A.2d 640, 643 (1993); Commonwealth v. Lopez, 415 Pa. Super. 252, 262, 609 A.2d 177, 182 (1992)). Once a traffic stop concludes, the interaction between a police officer and the defendant can occur in three ways:

“The first of these is a ‘mere encounter’ (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or respond. The second, an ‘investigatory detention’ must be supported by reasonable suspicion; it subjects a suspect to a stop and period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of arrest. Finally, an arrest or ‘custodial detention’ must be supported by probable cause.” Commonwealth v. Phinn, 761 A.2d 176, 181 (Pa. Super. 2000) (citing Commonwealth v. Ellis, 541 Pa. 285, 293-94, 662 A.2d 1043, 1047 (1995)).

The test for determining whether the interaction between a defendant and a police officer following a valid traffic stop is amere encounter or investigatory detention is determined on several factors, which includes:

“(1) the presence or absence of police excesses; (2) whether there was physical contact; (3) whether police directed the citizen’s movements; (4) police demeanor and manner of expression; (5) the location and time of the interdiction; (6) the content of the questions and statements; (7) the existence and character of the initial investigative detention, including its degree of coerciveness; (8) ‘the degree to which the transition between the traffic stop/investigative detention and the subsequent encounter can be viewed as seamless,... thus suggesting to a citizen that his movements may remain subject to police restraint,’... and (9) whether there was an express admonition to the effect that the citizen-subject is free to depart, which ‘is a potent, objective factor.’” Commonwealth v. Kemp, 961 A.2d 1247, 1253 (Pa. Super. 2008) (quoting Commonwealth v. Strickler, 563 Pa. 47, 75, 757 A.2d 884, 898-99 (2000)).

In Kemp, supra, the appellant was a passenger in a vehicle while another individual was driving. At approximately 1:30 a.m., a Pennsylvania State trooper observed the vehicle and noticed heavily-tinted windows that prevented him from seeing inside, which violated 75 Pa.C.S. §4524. He effectuated a traffic stop of the vehicle and when the driver rolled down the window, the trooper smelled a heavy odor of masking agents, air fresheners and dryer sheets. The trooper requested that the driver and the appellant provide license and registration. The driver provided a New Jersey identification card that appeared to be counterfeit and the appellant produced a Florida driver’s license. The trooper subsequently issued a warning for improperly-tinted windows and a license violation. He also asked the driver to exit the vehicle to explain the warnings. Additionally, the trooper indicated that the appellant would have to drive and told the driver to “have a nice day.” When the driver began to walk away, the trooper re-initiated contact and asked to speak with her again. The driver agreed and, after a short conversation, the trooper told her she was free to leave. The trooper then spoke with the appellant who was also standing outside of the vehicle. Subsequently, the trooper returned the appellant’s driver’s license and told him to have a nice day. However, the trooper immediately re-initiated contact with the appellant and asked whether the appellant had any guns, drugs or money inside of the vehicle. The trooper then requested permission to search the vehicle, which the appellant granted. As a result of that search, the trooper found a bag of marijuana in the trunk of the vehicle. The appellant challenged the constitutionality of the search and the trial court held that valid consent was provided to the trooper during a mere encounter following a valid traffic stop. The appellant was convicted of possession of a controlled substance, possession of a controlled substance with intent to deliver and conspiracy. He appealed the trial court’s decision to deny his motion to suppress evidence contending that consent was provided during an investigatory detention which was not supported by reasonable suspicion.

The Pennsylvania Superior Court agreed that the interaction between the trooper and the appellant following the traffic stop was an investigatory detention, but it was supported by reasonable suspicion. Id., 961 A.2d at 1254. The Kemp court examined the totality of circumstances involving the interaction between the trooper and the appellant to determine the coerciveness of their encounter. Id., 961 A.2d at 1253. The court noted that the appellant and the driver were standing outside of the vehicle, which implies that they were less likely to believe they were free to leave. Id., 961 A.2d at 1254. Additionally, the trooper immediately re-engaged the appellant after he instructed the appellant that he was free to leave, which led to a seamless interdiction. Id. Thus, the Kemp court held that the appellant was subject to an investigatory detention. Id. However, it must be noted that the court would later explain that the investigatory detention was supported by reasonable suspicion that the appellant and the driver were trafficking illegal drugs. Id.

In Pless, supra, a Pennsylvania State trooper clocked the appellee’s vehicle traveling on Interstate 80 at 75 miles per hour in a 55 mile-per-hour zone. Additionally, the vehicle’s taillight was broken. The trooper stopped the vehicle, parked behind it and approached the driver’s side. Upon request, the appellee provided her driver’s license and registration to the trooper. The trooper returned to his patrol vehicle and started filling out a warning card for the traffic violations when he noticed the appellee squirming in her seat and moving her head from side to side. Eventually, the trooper completed the warning and asked the appellee to exit her vehicle, so that he could issue the warning and he returned the driver’s license and registration to the appellee at that time. The trooper instructed the appellee that she was free to leave; however, the trooper immediately asked the appellee if she would answer some questions. The appellee complied with the request and, ultimately, granted the trooper permission to search her vehicle. The trooper discovered cocaine in the vehicle as a result of the search. The appellee was charged with unlawful possession with intent to deliver a controlled substance, unlawful possession of a controlled substance, unlawful possession of drug paraphernalia and criminal conspiracy. The appellee filed a motion to suppress evidence claiming that the search was unconstitutional because consent was provided during an investigatory detention that was not supported by reasonable suspicion. The trial court granted the appellee’s motion to suppress, which was appealed by the Commonwealth.

The Pless court explained that a driver must be allowed to leave after producing a valid driver’s license and vehicle registration, unless the police officer has reasonable suspicion that a crime is afoot. Id., 451 Pa. Super, at 212, 679 A.2d at 234. Initially, the trooper acted lawfully by stopping the appellee for violating the Motor Vehicle Code and by issuing a warning, but the trooper was required to allow the appellee to leave if he did not possess reasonable suspicion that the appellee had illegal drugs. Id. The Pless court held that the trooper “exceeded the lawful scope of a stop for a motor vehicle code violation, and therefore, the continued detention of appellee and the subsequent search were improper.” Id., at 213, 679 A.2d at 234.

In the case sub judice, it appears that the transition from the traffic stop to the subsequent request for consent to search the vehicle was seamless and it was reasonable for the defendant to believe that he was compelled to remain at the scene. Similar to Kemp, Officer Ryhal indicated that the defendant was free to leave and immediately requested consent to search the vehicle. The defendant did not have an opportunity to exercise his ability to leave the scene because he was not permitted to operate the vehicle due to his suspended license. Additionally, the officers intended to tow the defendant’s vehicle because the registration was expired. The officers also did not walk away from the defendant’s vehicle as they remained standing at the window. Furthermore, the officers did not halt their investigation or questioning of the defendant after they informed the defendant he was free to leave. Officer Ryhal immediately asked the defendant for permission to search the vehicle.

There was also a degree of coerciveness present during the traffic stop which gave the impression that the defendant was not free to leave once the citations were issued. First, the traffic stop occurred at 3:15 a.m. Officers Ryhal and Hoyland approached the defendant’s vehicle to question the defendant regarding the traffic stop and both officers were present at the time the defendant was informed he was free to leave. Moreover, two Pennsylvania State Police troopers arrived to question the defendant as well. Even though, the defendant was informed he was free to leave, he could not drive his vehicle because his license was suspended and he was not informed that he could contact someone to drive him home. As the Pless court indicated, the stop must not exceed the lawful scope of a motor vehicle code violation, unless the subsequent detention was supported by reasonable suspicion that a crime was afoot. Id. As in Pless, Officers Ryhal and Hoyland exceeded the scope of a normal traffic stop because they further detained the defendant when Officer Ryhal requested consent to search the vehicle immediately after providing the defendant with the citations and informing him he was free to leave.

As a result, the officers’ search of the defendant’s vehicle must be supported by reasonable suspicion or the items discovered are fruits of an illegal search. In cases where the reason for the initial traffic stop has ended and a reasonable person would not believe they were free to leave, the subsequent round of questioning by the police is characterized as an investigative detention or arrest. Commonwealth v. By, 812 A.2d 1250, 1256 (Pa. Super. 2002) (citing Commonwealth v. Freeman, 563 Pa. 82, 89,757 A.2d 903, 907 (2000)). If the stop is characterized as an investigative detention, the officer must gamer reasonable suspicion that the person seized is engaged in unlaw&l activity. Commonwealth v. Johnson, 833 A.2d 755, 762-63 (Pa. Super. 2003) (citing Commonwealth v. Reppert, 814 A.2d 1196, 1203 (Pa. Super. 2002)). That means “the facts available to the officer at the moment of the [intrusion] ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate.” Commonwealth v. Zhahir, 561 Pa. 545, 552, 751 A.2d 1153, 1156 (2000). (citation omitted) “To establish grounds for reasonable suspicion, the officer must articulate specific observations which, in conjunction with reasonable inferences derived from those observations, led him to reasonably conclude, in light of his experience, that criminal activity was afoot and that the person he stopped was involved in that activity.” Commonwealth v. Basinger, 982 A.2d 121, 125 (Pa. Super. 2009) (quoting Reppert, supra).

In Commonwealth v. Dales, 820 A.2d 807 (Pa. Super. 2003), the court determined that reasonable suspicion did not exist to justify an investigatory detention after the completion of a valid traffic stop. A police officer was observing traffic exiting the Pennsylvania Turnpike when he noticed excessive tinting on the defendant’s vehicle. The police officer stopped the vehicle and observed the defendant sitting in the driver’s seat. He also noticed several air fresheners hanging from the rearview mirror and elsewhere in the interior. The police officer also smelled a medicine-like aroma, similar to Bactine, emanating from the vehicle. He believed the smell to be a masking agent, but could not definitively relate it to any particular controlled substance. Also, the police officer noticed that the defendant was nervous. The police officer asked the defendant to accompany him to his vehicle and the defendant complied. The proper tinting arrangement was explained to the defendant at that time. The defendant received his license and registration, but the police officer continued to ask him several questions while they were standing beside the vehicle, such as his reasons for visiting New York. The defendant responded that he was visiting his cousin, but had a difficult time indicating the sex of the cousin and eventually explained that the cousin was transsexual, a male dressed as a female. The police officer asked for consent to search the vehicle and the defendant permitted him to do so. During the search, the police officer found approximately one pound of crack cocaine in a duffel bag located in the trunk of the vehicle. The defendant filed a motion to suppress, which the trial court granted. The Commonwealth filed an appeal.

The Dales court ruled that the police officer did not have reasonable suspicion to proceed with an investigatory detention after the completion of the valid traffic stop. Id., 820 A.2d at 813-14. The police officer justified the detention by citing the intense smell of Bactine, the use of air fresheners and the defendant’s inconsistent statements regarding his activities in New York. It was noted that the police officer could not determine the cause of the Bactine smell, he thought it may have been caused by some kind of chemical or masking agent. Id., 820 A.2d at 815. In fact, the police officer was not sure if the odor was Bactine. Id. The Dales court concluded, “that these facts were insufficient to establish anything more than a hunch of possible criminal activity being afoot. Thus, we find that [the police officer] lacked the reasonable suspicion necessary to conduct [a] second round of questioning.” Id.

In the current case, it appears that Officers Ryhal and Hoyland lacked reasonable suspicion that a crime was afoot when Officer Ryhal requested consent to search the defendant’s vehicle. The only facts the Commonwealth presented to establish reasonable suspicion is the defendant had many items in his vehicle when the officers approached the same and the defendant was driving with a suspended license. Also, the registration on the defendant’s vehicle was expired. It must be noted that the officers were not aware of the reason for the BOLO alert on the vehicle and they were not aware that the troopers were questioning the defendant regarding recent thefts. At the hearing held before this court, Officer Hoyland admitted that there was nothing noticeable to suspect that the defendant was involved in criminal activity prior to conducting the search of the vehicle. Moreover, Officer Ryhal indicated that there was no suspicious activities or materials inside of the vehicle. As in Dales, the Commonwealth has failed to establish reasonable basis to justify an investigatory detention of the defendant because there are no facts that indicate he was involved in criminal activity. Therefore, the search of the vehicle was not supported by reasonable suspicion and all of the evidence discovered as a result of that search must be suppressed.

Next, the defendant contends that his written statement should be suppressed as it was the product of being coerced by the items seized from the vehicle and he was not provided with his Miranda rights. It appears that the exclusionary rule applies, not only to the items discovered in the vehicle, but to the defendant’s written statement as well. The exclusionary rule applies to evidence obtained directly and indirectly from unconstitutional search or seizure. Wong Sun v. U.S., 371 U.S. 471, 485, 83 S.Ct. 407, 416 (1963) (citing Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182 (1920)). The test for determining if the evidence is excludable under the rule set forth in Wong Sun is whether the evidence has been discovered through the exploitation of police conduct that is unconstitutional or whether the evidence is sufficiently distinguishable from the police conduct that it is purged of the primary taint of illegality. Commonwealth v. Butler, 729 A.2d 1134, 1138 (Pa. Super. 1999) (citing Wong Sun, supra).

“The ‘fruit of the poisonous tree’ doctrine excludes evidence obtained from, or acquired as a consequence of, lawless official acts; it does not exclude evidence obtained from an ‘independent source.’” Commonwealth v. Brown, 700 A.2d 1310, 1318 (Pa. Super. 1997) (citing Commonwealth v. Ariondo, 397 Pa. Super. 364, 377, 580 A.2d 341, 347 (1990)). Clearly, the defendant’s written statement was derived from the presence of the illegally obtained items recovered from his vehicle. For that reason, it would be inappropriate to allow the Commonwealth to utilize the defendant’s statement at trial because it was the fruit of an illegal search. Therefore, the defendant’s written statement is suppressed.

Finally, the defendant argues that the Commonwealth has failed to present sufficient evidence to establish a prima facie case that the defendant committed theft from a motor vehicle, theft by unlawful taking and receiving stolen property. As a result of the suppression of the items discovered in the vehicle and the defendant’s written statement, it appears that the Commonwealth has not presented sufficient evidence to establish a prima facie case that the defendant committed the crimes for which he is charged. Thus, the court must grant the defendant’s petition for writ of habeas corpus and dismiss the charges of theft from a motor vehicle, theft by unlawful taking and receiving stolen property.

For the reasons stated in this opinion, the defendant’s omnibus pretrial motion is granted.

ORDER

Now March 5, 2010, this case being before the court on February 2, 2010, for a hearing on the omnibus pretrial motion filed by the defendant, with both parties appearing, the Commonwealth of Pennsylvania, represented by counsel, Luanne Parkonen, Esquire, assistant district attorney for the County of Lawrence and the defendant, Eric T. Barbati, represented by counsel, Bradley G. Olson, Esquire and after a hearing held, in accordance with the attached opinion, it is hereby ordered, adjudged and decreed as follows:

(1) The motion to suppress evidence is hereby granted and all evidence seized as a result of the search of the vehicle operated by the defendant is hereby suppressed.

(2) The motion to suppress statements of defendant is hereby granted and all statements taken from the defendant as a result of the search and seizure, which this court has ruled improper, are hereby suppressed.

(3) The petition for writ of habeas corpus is hereby granted due to the suppression of the search and seizure and statements of the defendant and the charges contained in the Information filed at the above-captioned term and number are hereby dismissed.

(4) The clerk of courts is directed to serve a copy of this order of court and attached opinion upon counsel of record, Luanne Parkonen, Esquire and Bradley G. Olson Jr., Esquire.

      . North Hill is the title given to an area of New Castle.

      . 75P.S. § 1543(a).

      .75P.S. §1301(a).

      . 18 Pa.C.S. §3934(a).

      . 18 Pa.C.S. §3925(a).

      . 18 Pa.C.S. §3921(a).

      . 18 Pa.C.S. §5506.

      . The police officer in Dales associated the smell of Bactine with possession of cocaine.


source: Caselaw Access Project

author: ROGERS, J.,

license: Public Domain

text:
    PennDOT v. Boglin

      C P. of Philadelphia County,
    November Term 2008
    no. 0274

      Reginald H. Boglin, pro se.

      Marc A. Werlinsky, for appellee.
    January 20, 2010
   ROGERS, J.,

The appellee, Reginald H. Boglin, was officially notified by the Bureau of Driver Licensing of the Commonwealth of Pennsylvania that it was suspending his privilege to operate a motor vehicle because of his conviction for “driving under the influence” (DUI). In response to that action, Mr. Boglin appealed the suspension of his driver’s license.

That appeal to the Bureau of Driver Licensing by Mr. Boglin was dismissed by this court on January 13,2009, because of Mr. Boglin’s failure to appear at the hearing. (N.O.T., appeal hearing, January 13, 2009, p. 2.) However, on that same date, this court reinstated Mr. Boglin’s driver’s license and rescheduled the appeal hearing, by agreement of all parties, to April 16, 2009. (N.O.T., appeal hearing, August 6,2009, p. 5.) The matter was continued again on April 16 to July 7, 2009 when the Honorable Sandra Mazer Moss reconsidered the original January 13 order, and vacated the dismissal of Mr. Boglin’s appeal.

On August 6,2009, the matter was again before Judge Moss who continued it to August 20, 2009, in order to rule on the appellant’s motion to reinstate the original dismissal of the appeal. Judge Moss denied that motion on August 20, and ruled that because this court had already denied reconsideration of its reinstatement of the appeal by Mr. Boglin, she was also denying appellant’s reconsideration motion.

Counsel for the appellant stated to Judge Moss at that hearing that he had become aware of the fact that this court had denied its motion for reconsideration.

“The Court Crier: The next case is Boglin versus PennDOT.

“The Court: Oh, there it is. Judge Rogers denied reconsideration, so this case is moving. This has been here like five times.

“Mr. Werlinsky: I found that out this morning, your honor. Commonwealth does not intend at this point to proceed with the case. The matter is up — you know, whatever the court decides to do.” (N.O.T., appeal hearing, August 20, 2009, p. 3.)

PennDOT filed a timely notice of appeal on September 16,2009 from that order to the Commonwealth Court of Pennsylvania.

Appellant first argues that Judge Moss erred when vacating the January 13 order by way of her July 7 order, because the first order was a “final order” where the appeal period had expired and where there were no “extraordinary circumstances.” Ainsworth v. PennDOT, 807 A.2d 933 (Pa. Commw. 2002). Appellant also argues that Judge Moss erred in sustaining Mr. Boglin’s appeal on August 20,2009, because the court lacked “subject matter jurisdiction”, and that it “constituted an improper modification or reconsideration of a final order.” Barbour v. PennDOT, 701 A.2d 990 (Pa. Commw. 1997), reversed on other grounds, 557 Pa. 189, 732 A.2d 1157 (1999).

None of the above case law is applicable to the instant case, because the appellant is contesting the rulings of Judge Moss who had no authority to overrule the orders of this court, because they are judges of concurrent jurisdiction. This point was conceded by counsel for appellant at the August 20 hearing, despite his present arguments.

“Mr. Welinsky: Your honor, if I just may for for the record. Commonwealth does stand behind the averments made in its motion for reconsideration, and it is the Commonwealth’s position, although I know this court cannot in any way undo Judge Rogers’ order, that the court does not have subject matter jurisdiction.

“The Court: As I said, Judge Rogers has undone Judge Rogers’ order.

“Mr. Werlinsky: Understood.

“The Court: And he has denied reconsideration. So if the Commonwealth does appeal, it’s really that order because at this point I am bound by his order.

“Mr. Werlinksy: That is correct.

“The Court: And accordingly I am going forward with the case. So as I said, if you want to appeal, then you may appeal his order. I am going to sustain the appeal.” (N.O.T., appeal hearing, August 20, 2009, p. 3.)

This court had the authority to reconsider and vacate its January 13, 2009 order that dismissed Mr. Boglin’s appeal. Once this court entered that subsequent order, Judge Moss had no subject matter jurisdiction, and appellant has no basis for appealing her judgment. Therefore, based upon all of the foregoing facts and applicable law, the appellant’s appeal to the Commonwealth Court should be denied.


author: NEALON, J.,

text:
    Florimonte v. Scranton Laminated Label Inc.
    C.P. of Lackawanna County,
    no. 08 CV 1569.

      Michael J. Kenny, for plaintiff.

      Kevin J. Dempsey, for defendants.

      March 15, 2010
   NEALON, J.,

I. PROCEDURAL HISTORY

On March 6, 2008, plaintiff Carolyn J. Florimonte instituted this action against her former employer, defendant Scranton Laminated Label Inc., d/b/a Scranton Label and its owner, defendant Edmund J. Carr, asserting gender discrimination, retaliatory discharge and sexual harassment/hostile working environment in violation of title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., as amended by the Civil Rights Act of 1991, 42 U.S.C. §1981a, and the Pennsylvania Human Relations Act, 43 P.S. §951 et seq. (Docket entry no. 1, ¶¶16-34.) A non-jury trial was conducted on February 22, 2010, at which time testimony was received from Carolyn J. Florimonte, Edmund J. Carr, John DeLeo, Amy Ayres, Karen Doyle and Arthur Frounfelker, as well as from John Horoshko (deceased) via deposition dated March 17,2009. The factual findings set forth below are based upon the credible and relevant testimony and evidence introduced by the parties.

II. FINDINGS OF FACT

(1) From November 1990 to January 1996, Florimonte was employed by Scranton Label as a customer service representative. In fate 1999, she resumed employment with Scranton Label as a sales representative and remained employed in that “at-will” employment capacity until her termination on April 18, 2003.

(2) On April 24, 1995, Scranton Label published a “harassment-free work environment policy statement” which was authored by Carr and distributed to all Scranton Label employees. The policy statement “reaffirm[s] Scranton Label’s policy regarding a harassment-free work environment” and confirms that “[a]ll employees have the right to work in an environment free from all forms of discrimination and conduct which can be considered harassing, coercive or disruptive, including sexual harassment.” (Joint exhibit no. 1.) The policy statement also notes that “[sjexual harassment is a violation of title VII of the Civil Rights Act of 1964, as amended.” (Id.) Moreover, the policy statement provides:

“Sexual harassment is a form of misconduct that undermines the integrity of the employment relationship and no employee should be subjected to unsolicited and unwelcome sexual overtures or conduct, either verbal or physical which include any unwelcome sexual advances, request for sexual favors and any other verbal or physical conduct of a sexual nature when submission to such conduct is made either explicitly or implicitly a term or condition of employment; submission to or rejection of such conduct is used as a basis for employment decisions affecting the individual; or when such conduct has the effect of unreasonably interfering with the individual’s work performance or creating an offensive working environment. Such behavior may result in disciplinary action up to and including dismissal.

“Examples of acts of sexual harassment which shall not be tolerated include but are limited to:

“ • Written — suggestive or obscene letters, poems, notes or invitations;

“ • Verbal- — derogatory comments, epithets, slurs, or jokes;

“ • Physical — impeding or blocking movements; touching, patting, pinching or any other unnecessary physical interferences with normal work;

“ • Visual — sexual oriented gestures; display of sexually suggestive or derogatory objects, pictures, cartoons, posters or drawings;

“ • Other — threats of insinuations that lack of sexual favors will result in reprisal, punitive actions, change of assignment, or a poor performance evaluations; withholding support for appointment, promotion, transfer.

“Managers and supervisors are responsible for inspecting their respective work areas for materials which might be offensive to others and for certifying that all such materials have been removed. They are also responsible for informing their employees of this policy which prohibits sexual harassment and for ensuring that measures are taken to comply with this policy.

“The following behaviors by managers and supervisors also constitute sexual harassment:

“ • Failure to take corrective action when it is known, or reasonably should have been known, that an individual in the line of supervision of the supervisor or manager is being subjected to sexual harassment on the job by anyone; or

“ • Retaliation against an employee or applicant who complained of sexual harassment, testified on behalf of someone who made a complaint, or who assisted or participated in any manner on behalf of a complainant in an investigation, proceeding, or hearing will not be adversely affected in terms and conditions of employment, nor discriminated against or discharged because of the complaint under this policy.

“Persons who believe they have been or are being sexually harassed, are aware of or suspect the occurrence of sexual harassment, or desire counseling on coping with harassment should contact me. Sexual harassment issues will be quickly and confidentially investigated to determine the facts and to recommend the appropriate remedy. All investigations will be designed to protect the privacy and rights of all parties concerned.

“Sexual harassment will not be tolerated. Prompt action will be taken to treat sexual harassment as other potential disciplinary actions are handled. Through consistent, determined application of this policy, we will preserve the right of all persons to an environment free of sexual harassment and sexual intimidation.” (Id.)

(3) While Florimonte was employed as a sales representative with Scranton Label, several employees of Scranton Label, including Florimonte, occasionally used profanity in the office, but never cursed in the presence of customers nor did they use profane language that was of a sexual nature.

(4) In addition to Florimonte, Scranton Label employed John Horoshko and Thomas Guzy as sales representatives. Because of the type of manufacturing equipment utilized by Scranton Label, the success of Scranton Label’s operations was dependent upon large industrial accounts rather than smaller boutique business, and sales representatives were encouraged to solicit and secure large industrial accounts. Since Florimonte devoted most of her sales efforts to smaller boutique accounts, she generated $130,031.87 in sales betweenApril 1,2002 and March 31,2003. In contrast, Mr. Horoshko’s annual sales ranged between $1,500,000 and $2,000,000 and Mr. Guzy’s annual sales exceeded $900,000.

(5) For Scranton Label to yield an adequate profit margin from its operations, Scranton Label’s sales representatives must each generate at least $500,000 in annual sales.

(6) During the first quarter of2003, Florimonte developed unfounded suspicions that representatives of Scranton Label had installed surveillance or recording devices in her company vehicle and at her office desk with the assistance of the Federal Bureau of Investigation (FBI).

(7) In the late afternoon of April 10, 2003, Florimonte placed a letter on Carr’s desk which he first discovered and read at approximately 3 p.m. on April 11, 2003. In her letter, Florimonte accused Carr and Scranton Label of installing surveillance and listening devices in her company issued Ford Taurus and at her workstation. Specifically, Florimonte advised Carr that she “would like [him] to remove the listening devices from my car, the car that you said was mine when you hired me to work at Scranton Label.” (Joint exhibit no. 2, p. 1.) Florimonte also referenced recent office renovations that had been completed, and remarked:

“I believe the renovations were accomplished in order to install listening devices and possibly visual devices in the office where my desk is located. I have no objection to this. What I object to is that everyone knew about it but me. When Kevin [Carr] took my car for repairs last month, it was a short leap for me to think that listening devices were also installed in the car. I’ve seen them so I know I was right.

“The stress of knowing all of this has had an effect on my health and is affecting my work in that I find myself feeling annoyed with customers. It has also made me very angry and bitter and I can curse like a dockworker when I’m in the car, because of that anger and bitterness. I do not, however, bring that behaviour (sic) into the office and inflict it on others. People can think what they want of me but your invasion of my privacy is very disturbing to me.” (Id., p. 2.)

(8) Florimonte further stated in her letter to Carr that “since you are so anxious to know my every movement and innermost thoughts, I thought I would share them with you.” (Id., p. 1.) Florimonte proceeded to criticize seven co-employees, including Carr’s son. For example, Florimonte alleged that:

“(a) Kevin Carr was romantically interested in a coworker, Cathy Fay ocavitz, and ‘bragged about how when you die, he would have tons of money, a boat, a big house and Cathy would have everything she ever wanted.’

“(b) Cathy Fay ocavitz ‘encouraged Kevin [Carr] to hang around in the office,’ ‘stole all of the snack money,’ became ‘annoyed’ when Florimonte questioned her about it, and stated that she ‘would put it back.’

“(c) John DeLeo was ‘dedicated and hard working’ and Florimonte was ‘very fond of him.’ However, Florimonte was ‘very disappointed in him’ since ‘[h]e has two daughters and I wonder how he would feel if someone were doing to them what you all have been doing to me.’;

“(d) John Horoshko ‘has never gotten over the fact that I don’t think that he is God’s gift to women,’ and ‘uses sexual innuendo with customers and curses in the office.’;

“(e) Tom Guzy caused Florimonte to lose the Arlington Industries account and made her look foolish in front of that customer.;

“(f) Arthur Frounfelker ‘ is very intelligent and trained me well,’ but ‘[s]peed is not part of his work ethic’ and ‘he really doesn’t want to be at work.’;

“(g) With regard to Jess Kostiak, ‘you already know my opinion’ of her. (Id., pp. 1-2.)

(9) Florimonte acknowledged in her letter ‘that I worked some personal errands into my work day,’ but asserted that ‘[i]f this is objectionable to you, tell me what my work hours are to be and I will confine my Label work only to those hours.’ (Id., p. 2.) Florimonte concluded her correspondence to Carr by stating:

“If you want to fire me, do it. If I stay, I’d appreciate more vacation time and a serious increase in salary and your assurance that this nonsense is over. I’ve brought a lot of expertise and ability to your business and professionalism that I find lacking in my associates. The question in my mind is do I really want to work where my ethics are questioned?” (Id.)

(10) Florimonte’s letter of April 10, 2003 did not reference Scranton Label’s harassment-free work environment policy statement, nor did it mention the term “harassment” or claim any violation of that policy statement other than the alleged use of surveillance and recording devices.

(11) Upon receiving Florimonte’s foregoing letter, Can-reviewed it with the employees who were referenced in the letter, with the exception of Cathy Fayocavitz who was no longer an employee of Scranton Label. Can and those individuals deemed Florimonte’s allegations to be “bizane,” “absurd,” “ridiculous” and “ludicrous.”

(12) Within one hour of receiving Florimonte’s letter, Can hired a private investigator, retired State Trooper Walter P. Carlson, to examine Florimonte’s Ford Taurus vehicle in order to determine whether any surveillance or recording devices had been installed in the vehicle. During his law enforcement career, Mr. Carlson had been certified as a wiretap specialist by the Pennsylvania State Police and the Office of the Attorney General of the Commonwealth of Pennsylvania.

(13) Once Carr retained Mr. Carlson, he immediately contacted Florimonte at her residence and advised her to lock the Ford Taurus until Mr. Carlson arrived so that no individual could have access to the vehicle prior to Mr. Carlson’s inspection.

(14) Mr. Carlson arrived at Florimonte’s residence at 6:30 p.m. on April 11, 2003. Florimonte advised Mr. Carlson “that the [recording] devices were attached to the underside or bottom of the front seats of the vehicle.” (Defendants’ exhibit no. 3, p. 1.) After examining that portion of the vehicle, Mr. Carlson informed Florimonte that the items that she “was referring to were plastic clips for attachment to the vehicle wiring that came from beneath the carpeting of the vehicle” and “were not listening devices.” Mr. Carlson examined the remainder of the vehicle and was unable to discover any evidence of any type of a recording device. (Id., pp. 1-2.)

(15) While at the Florimonte residence, Mr. Carlson observed another Ford Taurus vehicle which Florimonte indicated was a rental vehicle. With her permission, Mr. Carlson examined “the underside or bottom of the front seats of the rental” vehicle and determined that “the wiring and harnesses were the same as on the 1998 model” that Scranton Label had provided to Florimonte. Mr. Carlson advised Florimonte of those identical features “to ease her mind that the devices that she saw were in fact just factory items for the wiring of the car.” (Id., p. 2.)

(16) After Mr. Carlson completed his vehicle examination, he asked Florimonte “if she wanted to make arrangements with Mr. Carr to go to her office and have it examined for recording devices.” In response, Florimonte “stated that she was no longer interested in that and did not care about her office.” Prior to Mr. Carlson’s departure from Florimonte’s residence, “Florimonte was again asked if she wanted the office checked at work and she stated she did not and thanked [Carlson] for checking the vehicle.” (Id.)

(17) With Carr’s consent, Florimonte independently retained another inspection service from New Jersey to examine the Ford Taurus vehicle for recording devices. The New Jersey inspection company likewise was unable to discover any surveillance or recording devices in the vehicle.

(18) Two former employees of Scranton Label, Amy Ayres and Karen Doyle, testified that Florimonte was very difficult to work with and repeatedly complained about nonexistent problems.

(19) Prior to Carr’s receipt of Florimonte’s letter on April 11, 2003, Carr had considered terminating Florimonte due to her poor sales performance and frequent disagreements with other employees, but had not done so.

(20) After deliberating for one week following his receipt of Florimonte’s letter, Carr forwarded a letter to Florimonte on April 18,2003 notifying her that her “employment at Scranton Label Inc. has been terminated as of Friday, April 18, 2003.” Carr informed Florimonte that her termination was “due to the bizarre behavior you have exhibited over the past week toward my employees and me” and he expressed “hope [that] you seek the medical attention that you desperately need.” (Joint exhibit no. 3.)

(21) Florimonte filed an application for unemployment compensation benefits and a hearing was conducted before referee Walter Alexandroff on June 10, 2003, at which time Florimonte was represented by counsel. By written decision dated June 17,2003, referee Alexandroff concluded that (a) Florimonte’s surveillance/recording devices allegations were unfounded and (b) Florimonte was ineligible for unemployment compensation benefits based upon her “willful misconduct” at work in persisting with her unsubstantiated accusations. (See referee Walter Alexandroff’s decision dated 6/17/03 attached to defendants’ answer and new matter as exhibit. B.)

(22) Florimonte appealed referee Walter Alexandroff’s decision to the Unemployment Compensation Board of Review, and on August 20, 2003, the Unemployment Compensation Board of Review issued an order affirming referee Alexandroff’s decision and denial of unemployment compensation benefits. (Id., exhibit C.)

(23) Florimonte appealed the Unemployment Compensation Board of Review’s determination to the Commonwealth Court of Pennsylvania. On March 16,2004, the Commonwealth Court affirmed the Unemployment Compensation Board of Review order and held:

“Here, the board ultimately found that [Florimonte] was terminated because she persisted in making false allegations against her employer. On April 10, 2003, [Florimonte] sent employer a letter accusing employer and her co-workers of conspiring to spy on her by installing surveillance equipment in her car and office. Edmund Carr, the owner, testified that upon receiving the letter, he immediately hired an investigator to examine her vehicle. The investigator examined [Florimonte’s] car on April 11, 2003 and found no evidence to support [Florimonte’s] allegations. [Florimonte] was dissatisfied with the investigation and hired her own investigator, who also found no evidence of listening devices in the car. With regard to the claims of surveillance in her office, Carr testified that there were no cameras or listening devices in her office. Carr offered to allow [Florimonte] to come in to the office and point out where she believed surveillance devices were concealed, but [Florimonte] declined.

“Despite the results of the investigation, [Florimonte] never retracted her allegations and continued to make unfounded accusations that employer was monitoring her actions through surveillance, [footnote omitted] Although [Florimonte] attempted to justify her conduct, [Florimonte] offered no evidence to support her allegations other than her subj ective belief that her co-workers were eavesdropping on her. (N.T. at 31.)... Based upon our review of the record, the board’s findings are supported by substantial evidence and support the conclusion that [Florimonte] had acted in disregard of a standard of behavior which her employer could rightfully expect.” (Id., exhibit D, pp. 6-7, attaching Florimonte v. Unemployment Compensation Board of Review, no. 2173 C.D. 2003 at pp. 6-7 (Pa. Commw. Mar. 16, 2004.)

(24) Florimonte’s immediate replacement, Marianne Marchellitis, originally generated $280,076.19 in annual sales while her successor, Jennifer Gallagher, produced $924,907.43 in annual sales for Scranton Label.

(25) During its more than 40 years in business, Scranton Label has never installed any surveillance equipment or listening devices at its place of employment or in its company vehicles.

(26) Florimonte continues to believe that representatives of Scranton Label and the FBI installed surveillance/recording devices in her company car and at her work area in Scranton Label’s offices.

(27) During the bench trial on February 22, 2010, Florimonte provided the following sworn testimony in response to questioning by the undersigned:

“Q. Let me make sure I understand your testimony. What you maintain was the harassment in violation of the company policy was the surveillance that was being conducted. That’s what you maintain was the harassment?

“A. Yes.

“Q. And you also maintain that that surveillance was the cause of the anxiety and the stress and the reflux and health issues?

“A. Yes. And I believe that all the people that I had mentioned in that April 10 letter were involved in the surveillance. They knew about.

“Q. So when you identified all these individuals in the letter, you were identifying them because you thought that in some form or another they were involved with the surveillance that you believe was being conducted?

“A. Yes.

“Q. So when you have asserted a violation of the harassment-free policy from 1995, the basis for that is the surveillance that was being conducted, that you thought was?

“A. Yes.

“Q. Thank you. That’s all I have.” (T.P. on 2/22/10, pp. 276-77.)

(28) After Florimonte’s counsel interjected that Florimonte’s harassment claim involved “not just the surveillance,” but also “the cursing in the office and the sexual innuendo,” (id. atp. 277), the following additional questioning and sworn testimony transpired:

“Q. I’m sorry, ma’am. I thought you just told me when I asked you in referencing your April 10,2003 letter and what you are maintaining was a violation of the harassment-free work environment policy, that what you are maintaining was the harassment was the surveillance?

“A. Yes.

“Q. Okay. And that the reason you identified all these individuals; Kevin [Carr], Cathy [Fayocavitz], Jack [DeLeo], John [Floroshko], Tom [Guzy], Art [Frounfelker] and Jess [Kostiak] was because you thought that in some form or another they were involved with that surveillance?

“A. Yes.

“Q. Okay, And so—

“A. Or knew about it.

“Q. Or knew about it. And when you were referencing the anxiety and the stress, and you testified about reflux and some other health issues, they were all related to the surveillance?

“A. Yes, because I really — I loved my job. Office politics was the problem.

“Q. But when you say office politics—

“A. And the surveillance.

“Q. You’re talking about the surveillance?

“A. Right.

“Q. Okay. That’s what I’m trying to make sure. The surveillance is what you maintain was a violation of the harassment-free policy and nothing else?

“A. Just the things that I mentioned in the letter, you know. But mainly the surveillance.

“Q. Well, when you say mainly, what else would have been part of the violation of the harassment free work environment?

“A. I objected to the fact that everybody knew about it but me.

“Q. About the surveillance?

“A. (Witness nodding.)

“Q. You have to say yes or no.

“A. Yes.

“Q. I know you’re nodding your head but the court reporter—

“A. Yes.

“Q. And that would be it?

“A. Yes.

“Q. Okay. Thanks. (Id. pp. 278-80.) (emphasis added)

III. DISCUSSION

In advance of the bench trial during which Florimonte provided the above-quoted testimony, Florimonte submitted proposed findings of fact and conclusions of law which advance three causes of action. First, Florimonte contends that Scranton Label and Carr discriminated against her on the basis of her sex when they discharged her on April 18, 2003 (Plaintiff’s proposed findings of fact/conclusions of law, ¶¶40-43.) Second, Florimonte alleges that Scranton Label and Carr are liable for a sexually hostile work environment in violation of federal and state law and their harassment-free work environment policy statement. (Id., ¶¶48-49, 53-56.) Third, Florimonte maintains that she is entitled to recover for retaliatory discharge inasmuch as Scranton Label and Carr terminated her after she engaged in protected activity by complaining about their sexually hostile work environment. (Id., ¶¶44-47, 50-52.) Florimonte’s arguments will be addressed ad seriatim.

(A) Gender Discrimination

Under title VII of the Civil Rights Act, it is unlawful for an employer to discriminate against an individual with regard to, inter alia, hiring, compensation, or terms or conditions of employment because of that individual’s sex. See 42 U.S.C. §2000e-2(a). The PHRA similarly prohibits an employer from discriminating against an employee based upon gender. See 43 P.S. §955(a). In employment discrimination cases brought pursuant to title VII and the PHRA, Pennsylvania courts utilize the analytical model that was formulated by the Supreme Court of the United States in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and adopted by the Pennsylvania Supreme Court in General Electric Corp. v. Pennsylvania Human Relations Commission, 469 Pa. 292, 365 A.2d 649 (1976). See Goosby v. Johnson & Johnson Medical Inc., 228 F.3d 313, 318-19 (3d Cir. 2000); Spanish Council of York Inc. v. Pennsylvania Human Relations Commission, 879 A.2d 391, 397 and n.16 (Pa. Commw. 2005).

Where, as here, the employee does not offer any direct evidence of discriminatory treatment, federal and state law provides a burden-shifting framework for an employee to prove indirect evidence of discrimination. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506 (1993); Kroptavich v. Pennsylvania Power & Light Company, 795 A.2d 1048, 1055 (Pa. Super. 2002). Under this approach, the employee bears the initial burden of demonstrating a prima facie case of discrimination by a preponderance of the evidence. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); Kroptavich, supra. Aprima facie case is established by showing that: (1) the employee is a member of a protected class; (2) [s]he was discharged from a job for which [s]he was qualified; and (3) other employees not in the protected class were treated more favorably. See McDonnell Douglas, 411 U.S. at 802-803; Hugh v. Butler Co. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005), cert. denied, 546 U.S. 1094 (2006); Campanaro v. Pennsylvania Electric Company, 738 A.2d 472, 476 (Pa. Super. 1999), appeal denied, 561 Pa. 684, 751 A.2d 183 (2000); Kryeski v. Schott Glass Technologies Inc., 426 Pa. Super. 105, 110-11, 626 A.2d 595, 597-98 (1993), appeal denied, 536 Pa. 643, 639 A.2d 29 (1994). If the employee fails to satisfy this initial burden, the employer is entitled to judgment as a matter of law. Pivirotto v. Innovative Systems Inc., 191 F.3d 344, 352 n.4 (3d Cir. 1999); Kroptavich, supra.

However, if the employee demonstrates a prima facie case of discrimination by a preponderance of the evidence, a presumption of discrimination arises and the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the challenged employment decision. Reeves v. Sanderson Plumbing Products Inc., 530 U.S. 133, 142 (2000); Campanaro, supra; Bailey v. Storlazzi, 729 A.2d 1206, 1212 (Pa. Super. 1999). The employer’s burden in this regard “is one of production, not persuasion” and, therefore, involves no credibility assessment. St. Mary’s Honor Center, 509 U.S. at 509; Kroptavich, supra. If the employer articulates a legitimate business explanation for the employment action, “then the presumption of discriminatory intent created by the employee’s prima facie case is rebutted and the presumption simply ‘drops out of the picture. ’ ” St. Mary’s Honor Center, supra at 511; Seman v. Coplay Cement Company, 26 F.3d 428, 432 (3d Cir. 1994); Kroptavich, supra. In that event, the McDonnell Douglas standard affords the employee an opportunity to prove that the reasons proffered by the employer “were not its true reasons, but were a pretext for discrimination.” Reeves, 530 U.S. at 143; Burdine, 450 U.S. at 253; Campanaro, 738 A.2d at 476.

Florimonte failed to establish a prima facie case of discrimination by demonstrating that male employees were treated differently or more favorably than Florimonte. As indicated above, Florimonte’s trial evidence focused upon her unsubstantiated, subjective belief that surveillance and recording devices had been installed in her company vehicle and at her work desk, and did not establish that male employees of Scranton Label received preferential treatment. Furthermore, the credible evidence reflected that Florimonte was terminated due to her relentless and illusory accusations regarding eavesdropping and the detrimental effect that those allegations were having on Scranton Label’s workforce. In fact, after a full hearing on the merits, Florimonte was declared ineligible for unemployment compensation benefits and adjudged chargeable with “willful misconduct” for persisting with those unjustified accusations. Florimonte has not demonstrated that the articulated business reasons for her termination were pretextual or that any form of sex discrimination directly or indirectly factored into the decision to discharge her. Therefore, Florimonte has failed to establish a pretext claim of sex discrimination under federal or state law.

In addition to a pretext claim of gender discrimination, an employee may alternatively prove sex discrimination under a mixed-motive theory of liability as set forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). To establish a mixed-motive claim, an employee may show that an adverse employment decision “was made based on both legitimate and illegitimate reasons.” Makky v. Chertoff, 541 F.3d 205, 213 (3d Cir. 2008). Florimonte may succeed with a mixed-motive claim by establishing that in addition to other non-discriminatory reasons, her gender was a motivating factor for her discharge. See Desert Palace Inc. v. Costa, 539 U.S. 90, 101 (2003); Spanish Council of York, 879 A.2d at 399 n.19. For the reasons set forth above, Florimonte has not remotely demonstrated that her gender was a motivating factor for her termination. Her discharge was based upon her unwarranted allegations concerning surveillance and the negative impact that those persistent accusations were having on Scranton Label’s employees and operations. Accordingly, Florimonte has not established her right to relief under either the pretext theory articulated in McDonnell Douglas or the mixed-motive theory set forth in Price Waterhouse.

(B) Sexual Harassment/Hostile Work Environment

Florimonte further contends that Carr and Scranton Label subjected her to a sexually hostile work environment in violation of title VII of the Civil Rights Act and the PHRA. Sexual harassment is actionable under title VII if it is “so ‘severe or pervasive’ as to ‘alter the conditions of [the employee’s] employment and create an abusive working environment.’” Faragher v. Boca Raton, 524 U.S. 775, 786 (1998); Meritor Savings Bank F.S.B. v. Vinson, 477 U.S. 57, 67 (1986). The United States Supreme Court has “explained that in order to be actionable under the statute, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher, 524 U.S. at 787 (citing Harris v. Forklift Systems Inc, 510 U.S. 17, 21-22 (1993)).

However, the “mere utterance of an epithet which engenders offensive feelings in an employee . . . does not sufficiently affect the conditions of employment to implicate title VII.” Harris, 510 U.S. at 21 (quoting Meritor Savings Bank, 477 U.S. at 67). As the Supreme Court has observed, title VII is not a “general civility code,” nor is it meant to “purge the work place of vulgarity.” Oncale v. Sundowner Offshore Services Inc., 523 U.S. 75, 81 (1998). Rather, “[tjhese standards forjudging hostility are sufficiently demanding to ensure that. . . they will filter out complaints attacking the ordinary tribulations of the work place, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.” Faragher, 524 U.S. at 788. The factors to be considered in determining whether a work environment is objectively and subjectively hostile or abusive “include the frequency of the discriminatoiy conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris, 510 U.S. at 23.

To establish a sexually hostile work environment under the PHRA, 43 P.S. §955(a), an employee must demonstrate that: (1) [s]he suffered intentional discrimination because of her gender; (2) the harassment was severe or pervasive and regular; (3) the harassment detrimentally affected the employee; (4) the harassment would detrimentally affect a reasonable person of the same protected class; and (5) the harasser was a supervisory employee or agent. Raya and Haig Hair Salon v. Pennsylvania Human Relations Commission, 915 A.2d 728, 733 (Pa. Commw. 2007); Infinity Broadcasting Corp. v. Pennsylvania Human Relations Commission, 893 A.2d 151, 158 (Pa. Commw. 2006), appeal denied, 588 Pa. 785, 906 A.2d 545 (2006). In determining whether a work environment is sufficiently hostile or abusive to establish a viable claim under the PHRA, Pennsylvania courts apply the same federal analysis and criteria outlined in Faragher; Harris and Meritor Savings Bank. See Infinity Broadcasting Corp., 893 A.2d at 158-59.

Florimonte has failed to develop the elements of a sexually hostile work environment claim under federal or state law. During her trial testimony, Florimonte identified two purported violations of Scranton Label’s sexual harassment-free work environment policy statement: (1) the alleged installation of surveillance and recording devices with the assistance of the FBI; and (2) her fellow employees’ alleged knowledge of that surveillance. (T.P. on 2/22/10, pp. 276-80.) As discussed above, those suspicions were wholly unfounded and were determined to constitute “willful misconduct” in Florimonte’s unemployment compensation proceeding. More importantly, those allegations did not involve a sexually objectionable environment giving rise to a cause of action under title VII or the PHRA. Consequently, Florimonte’s sexually hostile work environment claim is not supported by her own trial testimony.

Even if Florimonte’s above-quoted testimony were to be disregarded and the remaining evidentiary record examined in a light most favorable to her, Florimonte’s sexual harassment/hostile work environment claim would nonetheless fail. In her letter to Carr dated April 10,2003, Florimonte made reference to alleged flirtation between Kevin Carr and Cathy Fayocavitz, John Horoshko’s cursing in the office, and his use of “sexual innuendo” with customers. When asked to identify that sexual innuendo, Florimonte testified that she recalled overhearing Mr. Horoshko ask a male customer whether he had “made love with his wife” recently. Florimonte did not claim in her testimony that any cursing in the office or Mr. Horoshlco’s single instance of sexual dialogue with a male customer somehow contributed to Florimonte’s poor sales or unreasonably interfered with her work performance.

The foregoing incidents were not sufficiently severe or pervasive so as to create a sexually hostile work environment under federal and state decisional precedent. Florimonte did not establish that the occasional use of profanity in the office or Mr. Horoshko’s sole use of sexual innuendo in her presence was directed at Florimonte. Compare Harris, 510 U.S at 19 (employer’s president stated to the employee in the presence of her co-workers “that the two of them go to the Holiday Inn to negotiate Harris’ raise,” “asked Harris and other female employees to get coins from his front pants pocket,” “threw objects on the ground in front of Harris and other women, and asked them to pick the objects up,” and “made sexual innuendos about Harris’ and other women’s clothing.”); Raya & Haig Hair Salon, 915 A.2d at 731 (supervisor verbally and physically sexually harassed “complainant by telling sexual jokes, making comment about complainant’s breasts, telling complainant that she would be good in bed, telling complainant that he would personally perform an abortion if she became pregnant, calling complainant a ‘bitch’, touching complainant’s rear end, placing his arms around complainant, placing his hands in complainant’s pockets, rubbing up against complainant, and repeatedly poking complainant in the shoulder.”). For example, in Moyer v. Kaplan Higher Education Corp., 413 F. Supp.2d 522 (E.D. Pa. 2006), the federal district court granted the employer’s summary judgment motion and reasoned:

“Plaintiff testified at her deposition that [plaintiff’s supervisor] Rothberg did not direct any of her cursing at plaintiff because she was a woman and that in fact Roth-berg cursed in front of both male and female employees, (citation omitted) While Rothberg’s cursing may have been crude and unprofessional, we find as a matter of law that such cursing, especially when not directed specifically at plaintiff, does not violate title VII and that no reasonable person in plaintiff’s position would have believed that it did. As noted by the Supreme Court, title VII is not a ‘civility code’ and is not meant to ‘purge the work place of vulgarity.’ (citation omitted)

“We also find as a matter of law that the ‘blow job’ and ‘slut’ comments were two isolated incidents over a 15-month period that simply do not constitute the type of pervasive and regular harassment forbidden by title VII and that no reasonable person in plaintiff’s position would have believed these isolated remarks constituted a hostile work environment.” Id. at 527.

Similarly, the court in Nolan v. Swartz Campbell LLC, 2008 WL 598291 (W.D. Pa. 2008) dismissed an employee’s hostile work environment claim and concluded:

“Plaintiff has advanced evidence that [her supervisor] Winikoff distributed between five and eight emails that contained derogatory jokes and off-colored demeaning or negative sexual depictions or comments based on gendered stereotypes of men and women....

“While the emails as identified and described by plaintiff were no doubt crude and could be viewed as vulgar, there is nothing in their content to suggest they were forwarded to plaintiff with an intent to demean, humiliate, ridicule or intimidate her in particular because of her sex or gender. There were no sexual propositions, innuendo pornographic materials or sexually derogatory language directed at plaintiff.” Id. at *8. Accord Tiffany v. KDF Company LLC, 2005 WL 2739137 (N.D.N.Y. 2005) (“A comment about the paternity of plaintiff’s unborn child, disclosure of a sexual dream involving plaintiff, comments about the sexual actions between co-workers, and a comment about a gift of lingerie do not create the severe type of work environment against which the hostile work environment claim was created to protect.”).

Based upon the foregoing evidence and case law, the alleged flirtation between fellow employees, the profanity that was not of a sexual nature nor addressed to Florimonte, and the isolated sexual reference between Mr. Horoshko and a male customer are collectively insufficient to create a sexually objectionable environment that is objectively and subjectively offensive. The instances in question were not so severe or pervasive as to alter Florimonte’s employment conditions and result in an abusive working environment. Therefore, a verdict will be entered in favor of Carr and Scranton Label with respect to Florimonte’s sexually hostile work environment claim.

(C) Retaliatory Discharge

Last, Florimonte asserts that she was wrongfully terminated in retaliation for protected activity in violation of title VII, 42 U.S. §2000e-3(2), and the PHRA, 43 P.S. §955(d). Federal and state retaliatory discharge claims employ a burden-shifting analysis that is similar to the framework applicable to pretext claims of discrimination. Absent sufficient direct evidence of retaliatory animus, an employee alleging retaliatory discharge liability under 42 U.S.C. §2000e-3(a) must demonstrate a prima facie case of retaliation by showing that: (1) the employee engaged in protected activity; (2) the employee was discharged subsequent to or contemporaneously with such activity; and (3) there is a causal link between the protected activity and the discharge. Woodson v. Scott Paper Company; 109 F.3d 913, 920 (3d Cir. 1997), cert. denied, 522 U.S. 914 (1997); Quiroga v. Hasbro Inc., 934 F.2d 497, 501 (3d Cir. 1991). To prevail with a retaliatory discharge claim under 43 P.S. §955(d), the employee must establish a prima facie case by proving that: (1) the employee engaged in protected activity; (2) the employer was aware of the protected activity; (3) subsequent to the employee’s participation in the protected activity, the employee was subject to an adverse action by the employer; and (4) there is a causal connection between the employee’s participation in the protected activity and the employer’s adverse employment action. Circle Bolt & Nut Company Inc. v. Pennsylvania Human Relations Commission, 954 A.2d 1265, 1268-1269 (Pa. Commw. 2008), appeal denied, 600 Pa. 765, 967 A.2d 961 (2009).

If the employee succeeds in establishing aprima facie case of retaliation, the burden of production shifts to the employer to articulate some legitimate, nondiscriminatory reason for its employment action. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994); Uber v. Slippery Rock University of Pennsylvania, 887 A.2d 362, 367 (Pa. Commw. 2005). “The defendant’s burden at this stage is relatively light: it is satisfied if the defendant articulates any legitimate reason for the discharge; the defendant need not prove that the articulated reason actually motivated the discharge.” Woodson, 109 F.3d at 920 n.2. If the employer does articulate some legitimate non-discriminatory motive for its action, the employee asserting a federal claim “must convince the fact finder ‘both that the reason was false, and that discrimination was the real reason.’” Id. (quoting Hicks, 509 U.S. at 512). With a state law retaliation claim, the burden shifts back to the employee to show that the employer’s stated reasons were pretextual. Circle Bolt & Nut Company, 954 A.2d at 1269; Uber, supra; Spanish Council of York, 879 A.2d at 399.

In the context of the employee’s proof of a prima facie case of retaliation, “protected activity” includes informal protests of discrimination or harassment such as complaints to management. See Circle Bolt & Nut Company, 954 A.2d at 1269 n.12; Bailey v. Storlazzi, 729 A.2d 1206, 1214 n.9 (Pa. Super. 1999). For the reasons discussed in section III(A) and (B) above, Florimonte did not engage in protected activity when she repeatedly made unsupported claims that the FBI and Scranton Label/Carr had installed surveillance and recording devices in her vehicle and at her workstation. Her persistence with those ethereal allegations, which were deemed to constitute “willful misconduct” in a separate adjudication, was the non-discriminatory reason that actually motivated the decision to terminate her. Thus, Florimonte has failed to establish this she was terminated in violation of 42 U.S.C. §2000e-3(a) or 43 P.S. §955(d).

NON-JURY VERDICT

And now, March 15, 2010, upon consideration of the credible evidence and arguments presented during the non-jury trial on February 22,2010, and based upon the factual findings and legal conclusions set forth in the foregoing non-jury verdict pursuant to Pa. R.C.P. 1038, it is hereby ordered and decreed that a verdict is entered in favor of the defendants, Scranton Laminated Label Inc. d/b/a Scranton Label and Edmund J. Carr, and against the plaintiff, Carolyn J. Florimonte, with regard to all claims brought pursuant to title VII of the Civil Rights Act of 1964,42 U.S.C. §2000e et seq. as amended by the Civil Rights Act of 1991, 42 U.S.C. §1981a, and the Pennsylvania Human Relations Act, 43 P.S. §951 et seq.

      . Florimonte also stated in her letter that John DeLeo “has two daughters and I wonder how he would feel if someone were doing to them what you all have been doing to me.” However, during her trial testimony, Florimonte confirmed that the reference to Mr. DeLeo’s daughters related solely to the alleged surveillance and her belief that she was “being laughed at” by her co-workers as a result of that surveillance.

      . John DeLeo testified that Florimonte participated in a conversation with him concerning oral sex during which she described a sexual practice known as “snowballing” with which he was unfamiliar. (T.P. 2/22/10, pp. 200-201.)

      . If the employee produces the requisite direct evidence of retaliatory animus at trial, [s]he may proceed forward based upon a mixed-motives theory of liability. See Walden v. Georgia-Pacific Corp., 126 F.3d 506, 512 (3d Cir. 1997) (“In a mixed-motives case, the evidence put forth by the plaintiff is so revealing of retaliatory animus that it is unnecessary to rely on the McDonnell Douglas/Burdine burden-shifting framework, under which the burden of proof remains with the plaintiff.”), cert. denied, 523 U.S. 1074 (1998). With a mixed-motives claim of retaliatory discharge, the burden of production and risk of non-persuasion shift to the defendant, which must show that, even if retaliation was a motivating factor in the adverse employment decision, it would have made the employment decision in the absence of retaliatory animus.” Id. at 512-13; Armbruster v. Unisys Corp., 32 F.3d 768, 778 (3d Cir. 1994).

      . Even if Florimonte’s retaliation claim was somehow addressed as a mixed-motives case notwithstanding the lack of any direct evidence of retaliatory animus, Florimonte still would not succeed with her claim since the credible evidence established that Carr and Scranton Label would have made the same employment decision (for the reasons stated in their termination letter) in the absence of any alleged retaliatory animus. See Walden, 126 F.3d at 512-13.


author: MINORA, J.,

text:
    Borough of Moosic v. Zoning Hearing Board of the Borough of Moosic

      C P. of Lackawanna County,
    no. 08 CV 6658.

      John J. Brazil, for plaintiff.

      W. Boyd Hughes, for defendant.
    March 4, 2010
   MINORA, J.,

I. INTRODUCTION

Before the court is a matter which began as a complaint in equity for injunctive relief against the defendant Guiseppe Basile but has now become a zoning appeal. We will explain.

On September 30,2008, plaintiff, Borough ofMoosic (Moosic) filed a complaint against the defendant, Guiseppe Basile (appellant or Basile) seeking injunctive relief, inter alia, preventing the defendant from continuing work on the addition to his building, i. e. the roof over the 20’x40’ patio at a business known as Grande Family Restaurant or Grande Pizza until he received land development approvals from the Moosic Planning Commission. The complaint was not served upon Basile until October 31, 2008. On November 20, 2008, Basile filed his answer and new matter setting forth that the placing of a roof over the 20’x40’ patio set forth on the plans approved by Moosic on April 14, 2008 did not require land development approval by the planning commission. Moosic filed its response to defendant’s new matter on December 3, 2008.

On October 23,2008, Moosic filed a petition and rule to show cause why a preliminary injunction should not issue, stating that the patio, without the roof, did not require land development approval but since a roof was being installed over the patio with one side being open, land development was required and requested the court to issue a preliminary injunction. On November 14,2008, Basile filed his reply to the petition and rule denying that land development approval was required to put a roof over the patio and three walls and the open wall with pedestals and columns as set forth on the plans approved by Moosic on April 14,2008 and building permit 08-10 that was issued to Basile on April 18, 2008 for the renovation of the restaurant and construction of the patio. A hearing was scheduled on Moosic’s petition on December 18, 2008 before the Honorable Carmen D. Minora which resulted in the parties entering into a stipulation on the record that Basile would submit a building permit application to construct the roof over the patio which would be a nunc pro tunc appeal and go through the appeal process to the Moosic Zoning Hearing Board and if not approved, the defendant would appeal the decision of the zoning hearing board to the above-captioned term and number.

Immediately after the hearing, on December 18,2008, Gaetano Serpico R.A. placed his professional seal upon the roof plans and Silvio Vitiello, president of Reflection Builders went to the Moosic Borough Building. Mr. Durkin, the zoning officer, was not present and Mr. Vitiello received a building permit application from the secretary, handwrote the application and returned the application and roof plans for the roof consisting of three pages to the secretary for delivery to Mr. Durkin. On December 30, 2008, Building Inspectors Underwriters (BIU) approved the plans for the construction of the roof consisting of three pages. On January 13, 2009, Matt Basile, son of appellant, went to the borough building, met with Mr. Durkin who completed a building permit application for the roof, had Matt Basile sign it and denied the application for the reason “Does not meet land development requirements.”

On January 28, 2009, Basile filed an appeal and application to the Moosic Zoning Hearing Board of the zoning officer’s denial of the permit to erect a roof over the patio. Hearings were held on April 21,2009 and May 20,2009. On June 11,2009, the Moosic Borough Zoning Hearing Board denied defendant’s zoning appeal.

On July 8, 2009, Basile filed his notice of building permit denial appeal to the above-captioned term and number as appellant, with the Zoning Hearing Board of the Borough of Moosic being named plaintiff/appellee and the Borough of Moosic remaining as plaintiff. On July 16, 2009, the plaintiff, Borough of Moosic, filed a petition to intervene.

The court received evidence and entertained oral argument on October 21, 2009 and allowed the parties time to file proposed findings of facts and conclusions of law or briefs. A certified record of the zoning hearing board is also part of the court record as well. As this matter has been adequately briefed and argued, it is now ripe for decision.

II. THE CORE ISSUE

The core issue in this case is whether or not the Moosic Zoning Hearing Board’s decision of June 11, 2009 affirming the zoning officer’s denial of Mr. Basile’s building permit to construct a roof over a pre-existing patio on the basis that such a project would require approval under the Moosic Borough’s Subdivision and Land Development Ordinance (SALDO) constituted a manifest abuse of discretion and/or was the result of an error of law and/or was unsupported by substantial evidence of record.

III. DISCUSSION

A. The Standards for a Court’s Review of the Decision of a Zoning Hearing Board

It is well established and recently reiterated by our Supreme Court, that where a trial court takes no additional evidence, appellate review of the decision of a zoning hearing board is limited to determining whether the board abused its discretion or committed legal error. Township of Exeter v. Zoning Hearing Board of Exeter Township, 599 Pa. 568, 578, 962 A.2d 653, 659 (2009).

“An abuse of discretion occurs when the board’s findings are not supported by substantial evidence in the record. Substantial evidence is that relevant evidence which a reasonable mind would accept as adequate to support the conclusion reached.” Township of Exeter v. Zoning Hearing Board of Exeter Township, supra, (internal citations omitted) See also, Laughman v. Zoning Hearing Board of Newberry Township, 964 A.2d 19 (Pa. Commw. 2009).

B. The Zoning Hearing Board’s Decision That the Roof/Patio Project in Question Requires Approval Under the Moosic Borough’s Subdivision and Land Development Ordinance (SALDO)

With those reviewing principles in mind, we now turn to the specific issues in the case at hand.

We first note that the appellant relies heavily on the case of Upper Southampton Township v. Upper Southampton Township Zoning Hearing Board, 594 Pa. 58, 934 A.2d 1162 (2007) in advancing his position that the roof/patio project in question in this case does not require approval under the Moosic Borough’s Subdivision and Land Development Ordinance (SALDO).

However, his reliance on this case is misplaced. The Upper Southampton case dealt merely with the construction of billboards and not the type of extensive development that impacts the community in terms of water run-off, use of sewer capacity, traffic ingress and egress and parking concerns all of which exist in the case before us.

Specifically, the Upper Southampton court recognized the types of development which would trigger the land use development ordinance prerequisites are those that impact the legitimate governmental concerns affecting the general public such as sanitary sewer, water, storm water management, parking areas, driveways, roadways, curbs and sidewalks. The Upper Southampton court simply stated that “[t]he construction of a billboard simply does not give rise to any of those concerns.” See Upper Southampton Township v. Upper Southampton Township Zoning Hearing Board, 594 Pa. 58, 64, 934 A.2d 1162, 1169(2007).

Certainly, if our Supreme Court would analyze our factually different case applying those same concerns set forth in Upper Southampton, they would most probably recognize the presence of a significantly greater impact on the Moosic Borough in terms of water run-off, sewer usage, roadways, parking etc. than were at play in the mere construction of a billboard.

In our case the facts show the substantial expansion of a restaurant with the capacity to seat 30 to 40 additional customers.

The record shows that Mr. Serpico (appellant’s architect) indicates that the increased use of the outside area in question would seat 30 to 40 additional customers (record exhibit 29, p. 82) and its use would certainly be more enhanced with its roof and lighting. (Record exhibit 29, p. 82.) Most importantly, he testified this use could possibly require additional sewer modules. Id.

Mr. Thomas Shepstone also testified for the appellant as a purported professional planner. He admitted that the additional work clearly enhances the restaurant and increases the value of the restaurant and is an improvement in the generic sense. (Record exhibit 29, p. 115.) It was an outdoor extension of the indoor dining area. (Record exhibit 29, p. 126.)

Mr. Shepstone further confirmed that this outdoor dining area would increase the sewer use and the fact it abutted Bimey Avenue would require a highway occupancy permit (record exhibit 29, pp. 127-129) which considers traffic ingress and egress.

Mr. Ronald King, a planner for the City of Scranton, called by appellant confirmed that the project issue is an extension of the principal use of a restaurant and not an accessory use. (See record exhibit 30, pp. 23-24.)

Mr. King further testified that appellant was doing more than putting up columns over a concrete slab. The plans included putting up columns, putting up trusses, installing an acoustical ceiling and installing lighting in the area, all of which would result in an improvement to the principal use of a restaurant such that 30 other individuals would be eating in that area requiring additional sewer modules. (Record exhibit 30, pp. 23-29.)

The bottom line is that the zoning hearing board clearly had substantial evidence of record to support their finding that this roofed patio area was a significant expansion of the appellant’s principal use of a restaurant which would impact on the issues of public use, water management, sewer usage, parking, access to public highways and the like, all requiring the imposition of and review by Moosic Borough and its Subdivision and Land Development Ordinance. This conclusion was supported by the appellant’s own witness.

In addition, any intelligent reasonable reading of Upper Southampton Township v. Upper Southampton Township Zoning Hearing Board, supra, supports a factual situation where public issues of water run-off, parking, sewer usage and highway access would mandate imposition of the Borough of Moosic’s Subdivision and Land Development Ordinance (SALDO) as well as that of the state’s Municipal Planning Code. See 53 P.S. §10107 and 53P.S. §10507.

Therefore, the Zoning Hearing Board of the Borough of Moosic’s decision in denying the expansion permit at issue without the prerequisites of SALDO is both supported by substantial evidence and is fully supported by the law as set forth in Upper Southampton Township v. Upper Southampton Township Zoning Hearing Board, supra.

Ultimately, the zoning appeal of defendant/appellant Guiseppe Basile will be denied.

An appropriate order follows.

ORDER

And now to wit, March 4, 2010, upon due consideration of the relevant, credible and probative evidence at the hearing of the defendant’s/appellant’s zoning appeal and the able argument of counsel and in accordance with the preceding memorandum, the zoning appeal by defendant/appellant Guiseppe Basile is denied and the decision of the Zoning Hearing Board of the Borough of Moosic dated June 11, 2009 in denying Mr. Basile’s building permit is affirmed.


author: KUNSELMAN, J.,

text:
    LaSalle Bank v. Miller
    C.P. of Beaver County,
    no. 11941 of 2003

      Samuel J. Orr III and Gregory Javardian, for plaintiff.

      Robert Druzisky, for defendants.
    February 2, 2010
   KUNSELMAN, J.,

LaSalle Bank filed this mortgage foreclosure action against James Miller and Tricia Kosloski seeking an in rem judgment. The defendants dispute the amount of money that the Bank claims is unpaid on this mortgage. Following a non-jury trial, this court has decided to enter a verdict in favor of the plaintiff, LaSalle Bank, in the amount of $17,468.22, the amount of the unpaid mortgage balance. For the reasons that follow, this court does not believe LaSalle Bank met its burden of proof with respect to the other amounts it was seeking in this litigation.

PROCEDURAL HISTORY

LaSalle Bank initiated this mortgage foreclosure action on November 20, 2003. The defendants filed an answer to the complaint on June 22,2004. On October 27,2004, LaSalle Bank filed a motion for summary judgment. Before the summary judgment motion was heard, defendant Tricia Kosloski, filed with this court a suggestion of bankruptcy, indicating that she had filed for bankruptcy and that relief was ordered on February 1, 2005. Thus, this action was stayed pending resolution of the bankruptcy matter.

LaSalle Bank filed another motion for summary judgment on November 14, 2007. Judge Dohanich denied the motion for summary judgment finding that genuine issues of material fact existed, and further finding that the complaint failed to set forth the chain of assignments under which the plaintiff acquired its interest in the subject mortgage, contrary to Rule 1147(1) of the Pennsylvania Rules of Civil Procedure. In addition to denying the motion, Judge Dohanich granted the plaintiff leave to file an amended complaint within 20 days of the date of his order to comply with Rule 1147(1).

LaSalle Bank filed the amended complaint on April 18, 2008. Defendants never filed an answer to the amended complaint. Following a pretrial conference in July 2009, a non-jury trial was held on September 9, 2009. The parties were given 30 days to submit a trial brief discussing the evidence and their positions in this case. The defendants filed a timely brief. The court received nothing from LaSalle Bank.

FACTUAL FINDINGS

Based on the testimony at trial, this court makes the following findings of fact:

(1) Defendants James Miller and Tricia Kosloski signed a mortgage agreement with Public Savings Bank on August 5, 1999, in the amount of $20,000. (Exhibit 1.) This mortgage was secured by the property located at 1226 9th Avenue, Beaver Falls, Pennsylvania. (Exhibit 1.) The mortgage was recorded on September 16, 1999.

(2) Defendant James Miller signed a note on August 5,1999, promising to pay $20,000, plus interest, to Public Savings Bank. (Exhibit 2.) Attached to the note is an allonge, which provides that the note shall be paid to the order of Alliance Funding, a Division of Superior Bank FSB. (Exhibit 2.)

(3) On August 13,1999, Alliance Funding, a division of Superior Bank FSB, assigned the mortgage of the defendants to LaSalle Bank National Association, as indenture trustee under the indenture dated as of September 1, 1999, series 1999-3. This assignment was recorded on May 30, 2001. (Exhibit 3.)

(4) LaSalle Bank is the legal holder of the mortgage on the property located at 1226 9th Avenue, Beaver Falls, Pennsylvania.

(5) The defendants are in default of the terms of the mortgage agreement.

(6) The defendants owe a principal balance on the mortgage of $17,648.22 (Complaint ¶10, and exhibit 8, last page.)

(7) LaSalle Bank did not produce any evidence at trial of an escrow agreement between it and the defendants.

(8) LaSalle Bank failed to sufficiently establish the amount of money paid on behalf of the defendants pursuant to an escrow agreement.

(9) LaSalle Bank did not establish the amount of unpaid interest, late charges, corporate advances, other fees or miscellaneous charges due to the Bank from the defendants.

LEGAL ANALYSIS

In a mortgage foreclosure action, the nature of the judgment sought is inrem. Insilco Corp. v. Rayburn, 374 Pa. Super. 362, 368, 543 A.2d 120, 122 (1988); Standard Pa. Practice 2d. §121:79 (2003). Because the judgment sought is a judgment against the land, it imposes no personal liability upon the mortgagors against whom the judgment is obtained. Id. The sole purpose of the judgment obtained through an action in mortgage foreclosure is to effect a judicial sale of the mortgaged property. Id.

In an action for mortgage foreclosure, the plaintiff need not show that the bond is unpaid. Brownell v. Oviatt, 215 Pa. 514, 64 A. 670 (1906); Standard Pa. Practice 2d. §121:76 (2003). The defendant in such an action has the burden of proving the matter alleged in confession and avoidance. Id. Thus, the burden to show payment of the bond, which is a complete defense to a suit on the mortgage, is on the defendant, because the presumption exists that the bond is not discharged. Id.

In this case, the defendants offered no proof that the bond was paid in full. Accordingly, they did not meet their burden to avoid foreclosure.

Thus, the court must assume that there is some amount of money due on the mortgage. The only evidence before this court concerning the amount due on the mortgage is the payment history provided by LaSalle Bank. The payment history offered in exhibit 8, indicates a balance due as of September 30,2009 of $17,648.22. This is the same amount LaSalle Bank claimed in paragraph 10 of its complaint.

Although the defendants dispute this amount, the court has no other testimony regarding the amount due on the mortgage. The defendants offered no testimony regarding the amount they believe is due on the mortgage. Therefore, we will accept the testimony of LaSalle Bank as true, and find that the amount due under the mortgage is $17,648.22.

With regard to the remaining amounts claimed by LaSalle Bank in paragraph 10 of its complaint, this court finds that insufficient evidence was produced at trial to warrant recovery of these items. First, there was no evidence of any escrow agreement between the parties. Therefore, even if LaSalle Bank made payments toward the defendants’ taxes or insurance, (escrow advances) there was no agreement for them to do so. Also, the payment history regarding escrow advance payments was highly questionable and there was no other proof (e.g., receipts, tax bills, etc.) that such payments were ever made. The court finds that LaSalle Bank failed to meet its burden to have these items included in the verdict.

Additionally, there was no evidence of the remaining items LaSalle Bank claimed in paragraph 10 of its amended complaint, including interest, accumulated late charges, corporate advances, other fees due and miscellaneous charges. Without any evidence concerning these items, this court cannot include them in the verdict.

Based on the foregoing discussion, the court enters the attached verdict in favor of LaSalle Bank, which may later be reduced to a judgment in rem.

VERDICT

And now, February 2, 2010, following the non-jury trial in this mortgage foreclosure action, the court enters a verdict in favor of the plaintiff, LaSalle Bank N.A., f/k/a LaSalle Bank as trustee under the pooling and servicing agreement dated 09/01/1999 series 1999-3, in the amount of $17,648.22.

      . The court recognizes that exhibit 2 provides an unsigned copy of the allonge, (assignment of the note). For our purposes, this fact is not relevant because plaintiff filed an action on the mortgage, not the note.

      . LaSalle Bank did not introduce evidence of the assignment of the mortgage from Public Savings Bank to Alliance Funding to show the proper chain of assignment of the mortgage. However, LaSalle Bank alleged that it was the legal holder of the mortgage on the property in question in paragraph 6 of the amended complaint. Defendants never filed an answer to the amended complaint, nor did they dispute the plaintiff’s standing to pursue this action at trial. Accordingly, the court will not dismiss the action for the plaintiff’s failure to allege and prove standing. The court notes that pursuant to Rule 201 of the Pennsylvania Rules of Evidence, the court could also take judicial notice of the assignment of the mortgage from Public Savings Bank to Alliance Funding, which was recorded in the Recorder of Deeds Office of Beaver County at instrument no. 3049974 on November 22, 1999.

      . At trial and in their trial brief, the defendants maintain that exhibit 8 is hearsay and not admissible evidence. This court disagrees. Exhibit 8 falls within the business records exception to the hearsay rule, because it was kept in the ordinary course of business of LaSalle Bank. Although the document is admissible, the weight of the evidence can be disputed. The defendants challenged the weight of the evidence at trial by attempting to show that the payment history was “full of errors.” However, as the court noted, the defendants offered no testimony regarding their records or their estimation of the amount due under the mortgage.