author: MOTTO, P.J.,

text:
    Kelly v. Young Galvanizing, Inc.

      C.P. of Lawrence County,
    No. 10480 of 2012, C.A.

      Peter D. Friday, for plaintiffs.

      Bruce E. Rende, for defendants.
    Sept. 16, 2014
   MOTTO, P.J.,

Before the court for disposition is the motion for summary judgment filed on behalf of defendant Young Galvanizing, Inc. (hereinafter “Young”), which argues that Young is not vicariously liable for plaintiff’s injuries because plaintiff is barred from recovery pursuant to the doctrine of assumption of the risk.

This action arises from a fall from a tractor trailer which occurred when plaintiff, Samuel J. Kelly, being concerned with the stability of a load his trailer, climbed onto the back portion of his trailer to inspect and secure the load. Plaintiff has been employed as a truck driver for 25 years and worked under a leasing contract with Mercer Trucking from 2000 up to the date of the accident. On November 16, 2010, at about 1:00 p.m., plaintiff drove his tractor trailer to the business premises of Young to pick up a load consisting of wooden posts and metal guardrails. According to the complaint, when plaintiff arrived at Young’s business premises he briefly spoke with the shipping supervisor for Young to verify the load he was to pick up. The shipping supervisor for Young directed plaintiff to drive his truck to the loading area and to wait inside his truck while the load of guardrails was loaded onto his truck. Two employees of Young came toward plaintiff’s truck with a forklift and loaded the guardrails onto the trailer. Subsequently, plaintiff exited his truck and walked toward the trailer to observe the loaded guardrails. Upon observing the load from where he stood on the ground next to the trailer, plaintiff became concerned with the stability of a curved guardrail section which was 12 feet in length and which was placed on the top of the load on the trailer. Plaintiff first walked toward the section of the trailer closest to the cabin of his truck and threw a strap over the curved guardrail in an attempt to secure it. Upon throwing the strap over the curved guardrail, plaintiff observed that it rocked back and forth. At that point, plaintiff observed that the curved section of the guardrail was unstable so he climbed onto the back side of the trailer to further observe and secure the load. After plaintiff climbed onto the trailer, he walked along a one and one half foot section on the left side of the trailer towards the front until he reached the curved guardrail which gave him cause for concern. Plaintiff noticed that the curved guardrail was not banded to the rest of the load and confirmed that the load was not stable. In an attempt to secure the load, plaintiff climbed the load and placed his hands along the guardrails so that he could get a closer view of the curved guardrail to confirm that it was unstable and not banded to the rest of the load. Upon touching the curved guardrail with his hand it pivoted and impacted the plaintiff, which caused him to fall off the trailer. As a result of the guardrail pivoting, plaintiff fell backwards off the trailer onto his back on the ground and hit his head on a pallet of steel plates located near the trailer. The plaintiff suffered injuries as a result of his fall.

On June 6, 2012 plaintiff Samuel J. Kelly and his wife, Rhonda Kelly, filed a two count complaint against defendant Young, alleging negligence-vicarious liability (Count I) and a claim for loss of consortium (Count II). In the complaint, plaintiff contends his injures are a direct and proximate result of the negligence and carelessness of Young’s employees in loading the metal guardrails onto plaintiff’s trailer in an improper fashion.

Young has now filed this motion for summary judgment arguing that it cannot be held liable under a theory of vicarious liability because plaintiff knowingly and voluntarily assumed the specific risk of his own injuries and there was no recognizable duty owed to plaintiff by Young; therefore, plaintiff is barred from recovery against Young pursuant to the doctrine of assumption of the risk.

The purpose of the summary judgment rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after the relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). Any party may move for summary judgment in whole or in part as a matter of law whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report or if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa.R.C.P. No. 1035.2.

Summary judgment may be granted only in cases where it is clear and free from doubt that there is no genuine issue as to any material fact and that the moving party is entitled to a summary judgment as a matter of law. Kafando Erie Ceramic Art Co., 764 A.2d 59, 61 (Pa. Super. 2000)(citing Rush v. Philadelphia Newspapers, Inc., 732 A.2d 648, 650-651 (Pa. Super. 1999)). A material fact, for summary judgment purposes, is one that directly affects the outcome of the case. Gerrow v. Silicones, Inc., 756 A.2d 697 (Pa. Super. 2000).

When determining whether to grant a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Hughes v. Seven Springs Farm Inc., 563 Pa. 501, 752 A.2d 339 (2000); Dean v. Commonwealth Department of Transportation, 561 Pa. 503, 751 A.2d 1130 (2000). Summary judgment is proper only when the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. P.J.S. v. Pennsylvania State Ethics Comm’n, 555 Pa. 149, 153, 723 A.2d 174, 175 (1999); Basile v. H&R Block, 761 A.2d 1115 (Pa. Super. 2001); Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000); Stevens Painton Corporation v. First State Insurance Company, 746 A.2d 649 (Pa. Super. 2000).

Only when the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment. Basile, supra. If there are no genuine issues of material fact in dispute or if the non-moving party has failed to state a prima facie case, summary judgment may be granted. Dudley v. USX Corporation, 414 Pa. Super. 160, 606 A.2d 916 (1992). Thus, a proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense. Rauch v. Mike-Mayer, 783 A.2d 815 (Pa. Super. 2001). The trial court must confine its inquiry when confronted with a motion for summary judgment to questions of whether material factual disputes exist. Township of Bensalem v. Moore, 152 Pa. Cmwlth. 540, 620 A.2d 76 (1993). It is not the function of the court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Pennsylvania Securities Commission, 143 Pa. Cmwlth. 494, 579 A.2d 1358 (1990).

It is well settled in Pennsylvania that the doctrine of assumption of the risk is a viable defense to a cause of action sounding in negligence. Whitley v. Philadelphia Transportation Co., 211 Pa. Super. 288, 234 A.2d 922 (1967). Under the doctrine of assumption of the risk, a defendant is relieved of its duty to protect a plaintiff where the plaintiff has voluntarily and deliberately proceeded to face a known and obvious risk and therefore is considered to have assumed the liability for his own injuries. The Pennsylvania Supreme Court has on occasion affirmed a lower court’s decision that as a matter of law, a plaintiff voluntarily proceeded in the face of a known risk and absolved the defendant from responsibility for the injuries sustained. Howell v. Clyde, 533 Pa. 151, 620 A.2d 1107 (1993). However, the determination that the plaintiff has assumed the risk of his injuries such that recovery is prevented should occur only where it is beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition. Struble v. Valley Forge Military Academy, 445 Pa. Super. 224, 665 A.2d 4 (1995) citing Long v. Norriton Hydraulics, Inc., 443 Pa. Super. 532, 662 A.2d 1089 (1995). The crux of the assumption of the risk defense centers on whether, before a plaintiff suffered injury, he intelligently acquiesced in a known danger and abandoned his right to complain, but afterwards, seeks to assert the claim he had waived. Handshschuh v. Albert Development, 393 Pa. Super. 444, 574 A.2d 693 (1990). Pursuant to the Restatement (Second) of Torts, §496D, the basis of assumption of risk is the plaintiff’s consent to accept the risk and look out for himself. Therefore, he will not be found, in the absence of an express agreement, to assume any risk unless he has knowledge of its existence. This means that he must not only be aware of the facts which create the danger, but must also appreciate the danger itself and the nature, character and extent which make it unreasonable. The standard to be applied is a subjective one, of what the particular plaintiff in fact sees, knows, understands and appreciates. Restatement (Second) of Torts §496D.

In recent decisions, the assumption of the risk doctrine has been applied narrowly as it is a drastic measure to find that despite the possible presence of negligence, the plaintiff should be estopped from holding that party liable because the plaintiff’s actions are such that they are viewed as having abandoned any right to complain. Thus, there is a reluctance to find assumption of the risk applicable unless it is quite clear that the specific risk that occasioned injury was both fully appreciated and voluntarily accepted. In order for the doctrine of assumption of the risk to apply the risk must be perceived and the risk must be faced voluntarily. Barrett v. Fredavid Builders. Inc., 454 Pa. Super. 162, 685 A.2d 129 (1996).

In Bullman v. Giuntoli, 761 A.2d 566 (Pa. Super. 2000), the court set forth the factors to be considered for granting summary judgment on the basis of assumption of the risk. The court stated that in order to grant summary judgment of the basis of assumption of the risk:

it must first be concluded, as a matter of law, that the party consciously appreciated the risk that attended a certain endeavor, assumed the risk of injury by engaging in the endeavor despite the appreciation of the risk involved and that the injury sustained was, in fact, the same risk of injury that was appreciated and assumed... Even if it is assumed that there is an assumption of the risk component to one’s actions, it does not necessarily follow that any type of injury suffered in that endeavor becomes immune from suit. Logically speaking, the injury sustained must be the result of the same risk appreciated and assumed.

Id. at 573.

In Bullirían, the plaintiff entered the home of an acquaintance, which was under construction, by traversing a plank approximately one foot wide. Id. The plank bridged an open ditch of six to eight feet and reached over an unfinished porch area that was covered with insulation boards. Plaintiff began to enter the house by stepping onto the board and began crossing the board towards the entrance to the house. Plaintiff safely traversed the excavation ditch and was over the unfinished porch area when the board moved causing her to lose her balance. As she lost her balance she stepped onto the flooring of the porch in an effort to regain stability but the insulation board was not able to sustain her weight and she fell though the insulation board into the basement. As a result of the fall plaintiff sustained severe injuries. Id. Plaintiff filed suit alleging a cause of action in negligence. Defendant filed a motion for summary judgment asserting that plaintiff voluntarily assumed the risk of the injury sustained. The trial court granted defendant’s motion on the basis of assumption of the risk. Plaintiff appealed.

The Pennsylvania Superior Court overturned the trial court’s decision to grant summary judgment on the basis of assumption of the risk because the risk that plaintiff assumed was limited to the risk that she might naturally lose her balance while crossing the plank and fall into the excavation ditch. The excavation ditch was an open and obvious and the peril of crossing a one foot wide plank is well understood by all individuals of adult age. Id. at 573. However, plaintiff’s testimony indicated that she had no appreciate of a risk of falling through what proved to be insulation board covering the porch. Her testimony indicated that she observed the porch area to be covered with what she thought was wood. Thus, considering the knowledge in her possession, plaintiff could only be found to have assumed the risk of falling into the excavation ditch. Once she safely traversed that section, the risk she had assumed had ended. Despite the fact that there were other obvious perils still around her, they were not fully appreciated and thus they could not be voluntary assumed. Id. at 573-574. Since the assumption of the risk required a subjective appreciation of risk, plaintiff could not have assumed the risk that she did not ascertain, even if the injury actually sustained is similar to the risk assumed. Thus, the court found that the granting of summary judgment on the basis of the assumption of the risk doctrine was in error. Id.

Similarly, in Struble v. Valley Forge Military Academy, 445 Pa. Super. 224, 665 A.2d 4 (1995), the issue was whether a student of the academy, who was injured when a ceremonial cannon loaded with blanks discharged while the student was located in front and slightly to the side of the cannon’s mouth, fully appreciated and accepted the risks of his actions. The court found that an assumption of the risk defense was not supported by the facts despite the student’s testimony that he was aware that he should not stand in front of the cannon while he was being discharged and that the student himself was the one who caused the cannon to discharge when he pulled on the lanyard attempting to dislodge it. Id. at 572, 665 A.2d at 7. In reaching this conclusion the court concentrated on the fact that the student had indicated that he was unaware that the cannon being loaded with blanks could cause the type of injury he sustained and also that the cannon had always required considerably more pressure upon the lanyard to discharge it than the student had applied that day. Id.

Moreover, the Pennsylvania Superior Court in Barrett v. Fredavid Builders, Inc., supra., reversed the finding of assumption of the risk where an installation installer working on two foot stilts slipped on a discarded piece of vinyl siding. Vital to the decision was the fact that the plaintiff did not see the specific piece of vinyl siding which he stepped on and caused him to fall. Id. 454 Pa. Super. at 167, 985 A.2d at 131. The court reasoned that the mere fact one engages in an activity that has some inherent danger does not mean that one cannot recover from a negligent party when injury is subsequently sustained. Plaintiff clearly had an appreciation of a certain amount of risk in the venture. Working on stilts certainly is more dangerous than working while standing on firm ground. Additionally, he had taken time to clear a path where he would be working from debris in order to prevent an accident. However, the appreciation of a general risk was not sufficient to prevent the case from going to the jury. Id.

Similarly, in Long v. Norriton Hydraulics, Inc., 443 Pa. Super. 532, 662 A.2d 1089 (1995), the Pennsylvania Superior Court reversed an order granting summary judgment in favor of several defendants on the basis of assumption of the risk. A worker was injured when he slipped on hydraulic fluid and fell while trying to avoid being struck by a hydraulic lift that suddenly shifted downward towards him. in its motion for summary judgment on the basis of assumption of the risk, defendant cited to the fact that the hydraulic lifts had “shifted” quite a few times and also that the lifts had been leaking hydraulic fluid for some time and that plaintiff was aware of both of these facts. The court found that the evidence did not establish the essential elements of the assumption of the risk doctrine, namely that the risk of injury from the transaction that actually took place was so immediately apparent as to be equivalent to an appreciation and acceptance of that risk and a relinquishment of the right to complain. Id. at 537, 662 A.2d 1091.

A similar result was reached in Handschuh v. Albert Development, 393 Pa. Super. 444, 574 A.2d 693 (1990), where the court upheld a denial of a request for a juiy instruction on assumption of the risk in an action involving the death of a plumbing contractor who sustained injuries when a trench in which he was laying pipe collapsed. The court recognized that the plaintiff was cognizant of the general risk of collapsing ditches and it was understood that the particular job would be “delicate.” Id. at 445, 574 A.2d at 694. Plaintiff’s fatal injury occurred when a seam developed in the trench, causing the dirt to collapse and the dirt to hit him causing fatal injuries. The court found that although the job contained a definite element of risk that was appreciated, the risk was not so imminent as to constitute a waiver of the right to complain. Thus, application of assumption of the risk was not implicated. Id.

In the instant case, Young contends that plaintiff assumed the risk of falling off the back of his trailer when he made the decision to step up on to the flatbed and inspect and secure the unsteady guardrail. Young contends that plaintiffs’ deposition testimony establishes all of the following: (1) while standing on the ground plaintiff observed that the curved guardrail which had been loaded onto his trailer was unstable; (2) plaintiff failed to contact any employee, agent or servant from Young upon observing the unstable guardrail pursuant to the safety protocol he was to follow; (3) plaintiff proceeded to climb onto his trailer despite knowing at that time that such conduct was risky and contrary to the safety protocol he was to follow; (4) plaintiff walked toward the unstable guardrail located at the front of his trailer despite knowing that such conduct created a fall risk given his training and prior fall of 2004; (5) upon observing, again, that the curved guardrail in question was unstable, plaintiff did not climb down from his trailer to notify employees, servants or agents of Young as he was required to pursuant to safety protocol; (6) plaintiff proceeded to climb on the load and observed that the curved guardrail was indeed unstable; (7) upon confirming that the guardrail was, in fact, unstable, plaintiff did not get off his trailer to notify Young’s agents; and (8) plaintiff proceeded in the face of danger to touch the unstable curved guardrail which caused him to fall.

Young contends that on the day of the incident plaintiff was subjectively aware of and had knowledge of a known risk and proceeded in the face of this risk contrary to the safety protocols put in place by Mercer trucking company prior to plaintiffs ’ fall. Young contends that plaintiff’s duties and responsibilities as a tractor trailer operator included driving his truck, supervising the loading and unloading of material onto his truck and performing maintenance on his truck. Upon working with Mercer Trucking, plaintiff was required to complete a training which instructed him as to Mercer Trucking’s safety policy regarding the loading and unload of material on flatbed trucks as well as other safety precautions. Plaintiff completed the safety orientation classes on an annual basis between 2000 and 2010 at Mercer Trucking’s principal place of business.

Plaintiff testified that he was required to follow Mercer Trucking’s safety protocol on the date of the incident. Specifically, whenever plaintiff arrived at a business establishment to pick up a load of material he was required to meet with someone at the establishment and then properly position his truck for the load and complete all the necessary paperwork. With regard to heavy material loads, plaintiff was required to direct the agents or employees of each business where each load was to be placed on plaintiff’s truck to ensure proper weight distribution. During the loading process, plaintiff acknowledged that he was fully aware of the risks involved during the loading and securing of material onto his tractor trailer. Additionally, plaintiff acknowledged that during the loading process for each trucking run plaintiff was required to stand at a safe distance and observe the material being loaded onto his trailer. Plaintiff acknowledged that he was to required to oversee the loading process and inform the business establishments’ employees or agents to move the material if plaintiff believed the material was loaded in an unstable manner onto his trailer.

In his deposition testimony, plaintiff acknowledged that Mercer Trucking’s safety protocol on November 16, 2010 required him to observe whether the load of guardrails was unstable and then immediately inform Young’s employees if he believed the load was unstable. Plaintiff also acknowledged that Mercer Trucking’s safety protocol further required him to never step onto his trailer if he believed the load of guardrails was unstable. Young argues that plaintiff was fully aware of the risks involved with the loading of guardrails as he had been involved in a prior fall from his trailer in 2004 when he attempted to secure an unstable load of pipe at a job site by himself which caused him to fall off the back of his trailer and sustain injuries.

Young contends the facts of this case are analogous to the case Metzger v. Yale Material Handling Corp, 6 Pa.D.& C.4th 289 (Pa. Com. Pl. 1989), which applied the doctrine of assumption of the risk in dismissing a plaintiff truck driver’s negligence claim. In Metzger, plaintiff was a forklift driver who sustained injuries while he attempted to move a load which had been placed on a forklift. At the time of his injury plaintiff was unloading a pallet with a load on it. While unloading the pallet, forks were placed under the pallet and the load shifted, requiring plaintiff to climb up on the forks to adjust the load. While standing on the forks the right fork shifted and caused plaintiff to fall from the forklift. Plaintiff commenced causes of action in negligence and strict liability. Id. at 290. During plaintiff’s deposition, he acknowledged that prior to the accident he had operated a forklift daily for four years and knew the forked he was operating on the day he fell had a warning decal on the mast of the forklift which specifically cautioned against standing on the forks. Moreover, plaintiff testified that he “knew better” than to stand on the forks. Id. at 291.

Consequently, defendant argued that plaintiff was barred from recovery because he voluntarily assumed the risk of injury. Id. in response, plaintiff argued that the only risk of injury, if any, he assumed was that he might slip off the forks to the ground. Plaintiff contended that he did not assume the risk of the defective design of the forklift allowing an allegedly secure fork to move laterally off the forklift; therefore, assumption of the risk was not a defense because he was not warned of the possibility of sudden lateral displacement. The court in Metzger found that plaintiff was barred from recovery due to his assumption of the risk. The court found:

Although the plaintiff in this case did not realize the specific defect of lateral displacement, he knew that there was danger involved in standing on the forks. He was warned not to stand on the forks. We find that plaintiff’s knowledge of the danger is enough for assumption of the risk to bar his recovery.

Id. at 293.

Young contends Metzger is analogous to the instant case because the plaintiff in Metzger openly agreed that he had proceeded in the face of a known danger just as the plaintiff in this case acknowledged he was aware of the prescribed safety protocol and still made the decision to climb onto the back of his trailer and touch the unstable load. Just as in Metzger, the plaintiff in this case acknowledged that based upon the explicit safety protocol he was to follow, as well as his prior experience as a truck driver, that he was never to stand on his trailer to attempt to correct a load which he believed to be unstable.

Young contends based onplaintiff’s testimony there is no genuine issue of material fact that plaintiff appreciated the risk of the unstable load and failed to follow the prescribed safety protocol to remedy the situation and then proceeded in the face of such danger without notifying anyone from Young and touched the unstable guardrail which caused him to fall. Thus, plaintiff’s testimony establishes that he appreciated and voluntarily assumed the risk of the injury he sustained by climbing onto the back of his trailer and touching the unstable guardrail. Therefore, similar to the court’s holding in Metzger, this court should hold that plaintiff is barred from recovery against Young based upon the assumption of the risk doctrine.

In response to Young’s motion for summary judgment, plaintiff contends that he did not appreciate the specific risk of the curved guardrail falling, therefore, summary judgment is not appropriate as there is a question of material fact on the issue of his assumption of the risk. Plaintiff testified at his deposition:

Q: You proceeded to move forward and attempted to touch the guardrail?
A: To see what I had to do to get it secure.
Q: Even though you knew the risks involved at that point?
A: I didn’t know it was going to slip like that. If I thought that was a possibility-I never thought-I hadn’t hauled curved [guardrails] like that. I didn’t realize they were so unstable like that. They are very unstable. I have been real cautious since then, because that is a lesson learned. It should have never been placed on there to begin with like that.
***
Q: As you said previously in your experience as a truck driver, you understood that unstable loads on your flatbed were risk?
A: Yes.
Q: You understand that they had the possibility of moving or falling off the flatbed truck, I take it?
A: Well, when they moved like that, maybe I guess there was a possibility of it falling. I didn’t really think it was going to fall. I thought there would be a band. A lot of times they band the metal like that. It will still move but its okay. I wanted to see if it was banded or not.

(Plaintiff’s deposition testimony, 1/16/04, pgs.85-86.)

Plaintiff argues that because he was not aware of the specific risks involved in attempting to secure the curved guardrail on his trailer it cannot be said as a matter of law that he assumed the risk of the curved guardrail moving and causing him to fall off the trailer. While the plaintiff stated that he was aware that unstable loads on flatbeds were a risk, he was unaware of the specific risk of a piece of curved guardrail moving and knocking him off the trailer.

In Struble v. Valley Forge Military Academy, Supra., the court found there was no assumption of the risk when a student indicated he was unaware that the cannon being loaded with blanks could cause the type of injury sustained and also that the cannon had always required considerably more pressure upon the lanyard to discharge it than the student had applied that day. Id. The court reasoned that the student did not assume the specific risk of the cannon discharging even though he was aware that he should not stand in front of the cannon while it was being discharged. Id. 445 Pa. Super, at 227, 665 A.2d at 5. Here, like in Struble, the plaintiff contends he was aware of the general risk of standing on flatbeds, but unaware of the specific risk involved in attempting to secure the curved guardrail.

The court finds before the doctrine of assumption of the risk can be applied to prevent recovery, the evidence must establish conclusively that plaintiff was subjectively aware of the risk. Here, plaintiff was in the course and scope of his employment as a truck driver when he fell from the flatbed. Furthermore, plaintiff contends that part of his duties as a truck driver is to strap down the load. Plaintiff stated in his deposition:

Q: You would agree with me as you stood three there was risk involved with regard to the loading of those guardrails on your flatbed truck on that date?
A: Always is a risk.
Q: Even though you knew it was unstable you decided to get on the flatbed truck yourself?
A: It is my responsibility to made sure they are secure, yes. I had to get up to make sure that it was, you know, in that it was secure enough to strap. You can’t have anything moving like that, or it will cut the strap and you will lose the load. If you strap it like that and it doesn’t fall off then, going down the road you lose the whole thing. You have to make sure they are stable.

(Plaintiff’s deposition testimony, 1/16/04, p. 87.)

Where an employee is required to encounter a risk in order to perform his job, reasonable minds could disagree as to whether the employee deliberately and with awareness of the specific risk inherent in the activity nonetheless engaged in the activity that produced the injury. See Staub v. Toy Factory, Inc., 749, A.2d 522, 530 (Pa. Super. 2000). Because plaintiff’s duties as a truck driver involve an inherent risk, reasonable minds could differ as to whether the plaintiff deliberately and with awareness encountered the specific risks involved. Id. at 529-530. See also Handschuh v. Albert Development, Supra. 393 Pa. Super, at 447, 574 A.2d at 696 (finding that although plaintiff’s job contained a definite element of risk that was recognized, the risk was not so impending as to constitute a waiver of the right to complain).

In the instant case, plaintiff could not see nor appreciate the specific risk of attempting to secure the curved guardrail until it was too late. Plaintiff stated that part of his job duties included making sure the load was stable before placing straps over the load to secure it. According to plaintiff, it is common practice in the trucking industiy for guardrails to be held down by steel bands when they are loaded onto a truck. Plaintiff stated that he climbed up onto the flatbed to ascertain whether the guardrail was held down by metal bands before he put the straps on to secure the load. Just as the plaintiff in Barrett v. Fredavid Builders, Inc., Supra. 454 Pa. Super. at 167, 685 A.2d at 131, did not see not appreciate the specific risk of the vinyl siding on the ground, the plaintiff here did not see nor appreciate the potential harm the totally unsecured guardrail imposed. Plaintiff testified that he was not aware the guardrail was not secured before he stepped up onto the flatbed truck. Because the assumption of the risk defense requires a subjective appreciate of the risk, a plaintiff cannot be said to assume a risk they did not know existed.

Moreover, the court finds that the decision in Metzger is not binding on this court because central to the court’s reasoning in Metzger was that the plaintiff stated that he was previously warned about and was aware of the danger in standing on the forks. Id. 6 Pa.D.& C.4th at 293. Here, plaintiff stated that he was unaware that the guardrails were not banded together when he stepped onto the flatbed and that this was his first time hauling a load with curved guardrail. Additionally, plaintiff testified that it was part of his job duties to make sure a load was secure and strapped down before leaving business. In Metzger, the forklift driver testified that he was previously warned not to stand on the forks, unlike here where the plaintiff testified that he was never warned of the specific dangers of hauling curved guardrail and it was part of his job duties to secure and strap down a load before leaving a facility. See Id. at 293. Thus, this court cannot find as a matter of law that plaintiff is barred from recovery against Young based upon the assumption of the risk doctrine. Whether plaintiff’s actions and thoughts were reasonable involve negligence principles for the jury to resolve.

For the foregoing reasons, defendant Young Galvanizing Inc.’s motion for summary judgment on the issue of plaintiff’s assumption of the risk is denied.

ORDER OF COURT

And now, this 16th day of September, 2014, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered, adjudged and decreed that the motion for summary judgment of defendant, Young Galvanizing, Inc., is denied.


source: Caselaw Access Project

author: MCINERNEY, J,

license: Public Domain

text:
    Bochetto & Lentz P.C. v. WFIC, LLC

      C.P. of Philadelphia County,
    April Term 2014,
    No. 1010

      George Bochetto and John A. O’Connell, for plaintiff.

      Arthur W. Lefco, Aaron E. Moore, Brian P. Flaherty, Stephen A. Cozen and Matthew L. Bleich, defendants.
    Sept. 22, 2014
   MCINERNEY, J,

This is a wrongful use of civil proceeding action filed by plaintiff Bochetto & Lentz, P.C. (hereinafter “Bochetto & Lentz”) against defendants Michael Trachtman, Esquire, Benjamin Anderson, Esquire and Powell Trachtman Logan Carrie & Lombardo, P.C. (hereinafter “attorney defendants”) and WFIC, LLC, Ace American Insurance Company and West Chester Fire Insurance Company (hereinafter “corporate defendants”) for initiating and continuing the action captioned WFIC v. LaBarre, et. al., September Term No. 3183 (“the underlying action”). Presently before the court are defendants’ respective preliminary objections.

I. Martin v. Turner Action

Defendants Ace American Insurance Company and West Chester Fire Insurance Company insured and represented attorney Alan Turner, Esquire (“Turner”) in a legal malpractice action brought by Larry Martin (“Martin”) in Federal Court and captioned Martin v. Turner, docket no. 2:10-cv-01874 (E.D. Pa.)(“Martin Action”). (Com. ¶ 5, 24). The attorney defendants were hired by Ace American Insurance Company and West Chester Fire Insurance Company to represent Turner in the Martin Action. (Com. ¶33).

In the Martin Action, Martin alleged that Turner failed to renew a UCC-1 filing statement concerning Martin’s $1.4 million loan to Polymer Dynamics, Inc. (“PDI”). (Com. ¶ 25). Between October 1, 1998 and March 25, 1999, Martin made three loans to Polymer Dynamics, Inc. (“PDi”) totaling $ 1,400,000.0o. PDI defaulted on the loans and on June 28, 2001, Martin confessed judgment against PDI in the amount of $ 1,404,999.31

On October 24, 2001, PDI and Martin entered into a settlement agreement wherein PDI executed and delivered a promissory note in favor of Martin in the amount of $1,730,147.95. To secure the promissory note, on October 25,2001, PDI executed and delivered to Martin a Collateral Assignment and security agreement which gave Martin a first position security interest, after satisfaction of PDI’s attorneys’ fees and tax liens, in the proceeds derived from a lawsuit filed by PDI against Bayer Corporation (Bayer lawsuit). In the Bayer lawsuit, PDI alleged that Bayer machinery malfunctioned causing PDI to become insolvent. On October 26,2001, Turner, Martin’s attorney filed a UCC-1 financing statement regarding the security interest in the Bayer proceeds. In 2006, Turner failed to renew Martin’s UCC-1 against PDI and another creditor of PDI, PAFCO Investments, LLC took priority over Martin and Martin received nothing from PDI. (Com. ¶ 26-27).

Turner’s defense in the Martin action was that Martin’s loan to PDI was a “payment intangible” that did not rely for its priority on a UCC-1, but was automatically perfected. (Com. ¶ 28). Prior to trial, the Martin v. Turner case settled. Defendant Ace Insurance Company tendered Turner’s entire policy amount, $1,000,000.00, in return for a complete release from Martin and an assignment of Martin’s remaining rights in the PDI v. Bayer litigation. (Com. ¶ 29). Turner and Insureds assigned Martin’s remaining rights in the PDI v. Bayer litigation to WFIC, an entity which did not exist at the time of the settlement in Martin v. Turner. (Com. ¶ 32). Upon the Martin v. Turner settlement, the corporate defendants retained the attorney defendants to initiate a civil action on behalf of WFIC against PDFs various creditors. Those creditors included Bochetto & Lentz who were paid by PDI based upon the assignment received from the Martin v. Turner settlement. (Com. ¶ 35).

II. Bochetto & Lentz’s Involvement and the Underlying Action.

In 2009, PDI had retained Bochetto & Lentz to prosecute a claim against its trial counsel in the PDI v. Bayer case, Bruce McKissick. (Com. ¶ 44). On October 22, 2009, one of PDFs attorneys, Donald LaBarre, Esquire paid $100,000 from his attorney escrow account to Bochetto & Lentz as a retainer. Bochetto & Lentz represented PDI and incurred fees in excess of $100,000. (Com. ¶ 45).

On September 19, 2011 defendant attorney Anderson forwarded a letter to Bochetto & Lentz informing it that suit would be instituted against it to recover the $100,000 paid to it for the legal services rendered to PDI. (Com. ¶ 50). On September 27, 2011, after an exchange of correspondence between defendant attorneys and Bochetto & Lentz, a complaint was filed captioned WFIC, LLC v. LaBarre, et. al. September term 2011 no. 3183 (“the underlying action”). (Com. ¶ 54). The underlying action was filed against numerous creditors of PDI including Bochetto & Lentz seeking to recoup moneys allegedly paid to them. The underlying action alleged claims for conversion, civil conspiracy, tortuous interference with contract and unjust enrichment. (Com. ¶ 56). Bochetto & Lentz filed preliminary objections to WFIC’s complaint which were overruled by the court.

The Hon. Gary S. Glazer held a “bifurcated trial” in the underlying matter and framed the relevant legal issues as follows: (1) Whether Larry Martin perfected a security interest in the proceeds of the Bayer litigation and if so, was that security interest superior to all other security interests in the proceeds of the Bayer litigation at the time it was perfected; (2) If the answer to question 1 is yes, whether that security interest thereafter continued to be superior to all the security interests in the proceeds of the Bayer litigation; and (3) whether the assignment of Martin’s rights to the proceeds of the Bayer litigation from Martin to WFIC was a valid assignment capable of being enforced by the court. (Com. ¶ 65-66).

Each party briefed the issues and on November 7, 2013, the Hon. Gary S. Glazer issued his order and opinion holding that Martin’s alleged interest in PDFs anticipated judgment was not an automatically perfected payment intangible. (Com. ¶ 67-69). Bochetto & Lentz filed a motion for summary judgment on the basis of the November 7,2013 order and opinion. (Com. ¶ 71). WFIC did not contest the motions for summary judgment and on February 28, 2014, the court granted Bochetto & Lentz’s motion for summary judgment. (Com. ¶ 72,74). In April 2014, Bochetto & Lentz commenced this action against the attorney defendants and the corporate defendants for wrongful use of civil proceedings for initiating and continuing the underlying matter.

DISCUSSION

To withstand a demurrer, the instant complaint must at least include the factual allegations required for wrongful use of process under the applicable law. Wrongful use of civil proceedings is a tort which arises when a party institutes a lawsuit with a malicious motive and lacking probable cause. The elements that must be established for a viable cause of action pursuant to the Dragonetti Act (“Act”) are as follows:

(a) Elements of action. — A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings:
(1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and
(2) The proceedings have terminated in favor of the person against whom they are brought.

Thus, in an action for wrongful use of civil proceedings, the Act requires Bochetto & Lentz to establish that (1) the attorney defendants procured, initiated or continued the underlying action against them, (2) the proceedings were terminated in Bochetto & Lentz’s favor, (3) the attorney defendants did not have probable cause for the underlying action, (4) the primary purpose for which the proceedings were brought was not that of securing the proper discovery, joinder of parties or adjudication of the claim on which the proceedings were based, and (5) Bochetto & Lentz suffered damages as set forth in § 8355 (damages).

Specifically at issue in these preliminary objections is whether the attorney defendants and the corporate defendants had probable cause to bring the underlying action. The act defines probable cause as it applies to the attorney defendants and the corporate defendants as follows:

A person who takes part in the procurement, initiation or continuation of civil proceedings against another has probable cause for doing so if he reasonably believes in the existence of the facts upon which the claim is based, and either:
(1) Reasonably believes that under those facts the claim may be valid under the existing or developing law;
(2) Believes to this effect in reliance upon the advice of counsel, sought in good faith and given after full disclosure of all relevant facts within his knowledge and information; or
(3) Believes as an attorney of record, in good faith that his procurement, initiation or continuation of a civil cause is not intended to merely harass or maliciously injure the opposite party.

The existence of probable cause is a matter of law for the court to decide.

Upon review of the complaint’s allegations as well as the existing case law, it is clear that Bochetto & Lentz failed to state a claim for wrongful use of civil proceedings. There is a lack of controlling case law in this jurisdiction and outside this jurisdiction on the issue of whether assignments of anticipated proceeds in litigation constitute a payment intangible subject to automatic perfection. Indeed, the court in the underlying action readily acknowledged a lack of relevant precedent in this jurisdiction on the issue. The attorney defendants and the corporate defendants cannot be deemed to have lacked probable cause to initiate and continue the underlying matter solely because the court in the underlying matter determined that the Martin assignment was not a payment intangible after reviewing conflicting case law.

Moreover, it is clear that the funds in dispute were not clearly protected by 13 Pa.C.S. § 9332 as suggested by Bochetto & Lentz. Bochetto & Lentz allege that the attorney defendants lacked probable cause to prosecute the underlying matter because they accepted the $100,000 payment for PDI as payment for legal services without knowledge of Martin’s alleged right to receipt of funds from the Bayer award, citing 13 Pa.C. S. §9332. Title 13 Pa.C. S. §9332 provides in relevant part are as follows:

(a) Transferee of money. — A transferee of money takes the money free of a security interest unless the transferee acts in collusion with the debtor in violating the rights of the secured party.
(b) Transferee of funds from deposit account. — A transferee of funds from a deposit account takes the funds free of a security interest in the deposit account unless the transferee acts in collusion with the debtor in violating the rights of the secured party.

In the case at bar section (a) does not apply since the funds received by Bochetto & Lentz do not constitute “money”. “Money” as defined by the UCC refers to currency. Bochetto & Lentz did not receive currency, it received funds. Therefore, section (a) does not apply.

Furthermore, section (b) does not apply. Section (b) only applies if Bochetto & Lentz received the funds from a deposit account. A deposit account is defined as a “demand, time, savings, passbook or similar account maintained with a bank. A deposit account does not include investment property or accounts evidenced by an instrument”. It is undisputed by the parties that the account from which Bochetto & Lentz received its $100,000 distribution was an escrow account set up and maintained by PDFs counsel, LaBarre. An escrow account, however, is not a deposit account and therefore reliance upon § 9332 (b) is misplaced to demonstrate lack of probable cause. Based on the forgoing, this court concludes there was probable cause to assert claims against Bochetto & Lentz in an effort to recover amounts paid to Bochetto & Lentz and therefore the preliminary objections are sustained.

Bochetto & Lentz also rely upon allegations it classifies as judicial admissions to support the lack of probable cause element. The alleged admissions are Martin’s statements in the underlying Martin action repudiating the payment intangible theory, attorney defendants’ statements in correspondence to Bochetto & Lentz that they lacked the requisite facts to impose liability upon Bochetto & Lentz under the UCC and the settlement in the Martin malpractice action. The court finds that these alleged admissions are insufficient to satisfy the requisite element of lack of probable cause.

First, the alleged judicial admissions in the Martin action regarding the viability of the payment intangible theory are conclusions of law which do not qualify as judicial admissions. Whether Martin’s interest in the litigation proceeds constituted a payment intangible is an issue of law. Admissions to legal conclusions are not judicial admissions. Similarly, the allegation that the Martin action settled is not a judicial admission and does not suggest a lack of probable cause to bring this action. Although, the defense in the Martin action was based on the payment intangible theory, said defense was never tested and the issue was never judicially resolved. For an averment to qualify as a judicial admission, it must be a clear and unequivocal admission of fact. Judicial admissions are limited in scope to factual matters otherwise requiring evidentiary proof, and are exclusive of legal theories and conclusions of law. Since the Martin action settled, it remains unclear and equivocal as to whether the theory would have been successful.

As for the alleged admissions in attorney defendants correspondence, attached as exhibits “C and E” to the complaint, said alleged admissions do not support the allegation that the attorney defendants lacked the requisite facts to impose liability upon Bochetto & Lentz. On the contrary, the reasonable inference one draws from the correspondence is that as the attorney defendants understood the law, after investigation and research, they had a reasonable belief that the action was valid under the clearly existing law.

The presence of probable cause, however, does not necessarily defeat the entire cause of action for wrongful use of civil proceedings, as “the clear language of Section 8351 permits a cause of action to be based on gross negligence or lack of probable cause.” Gross negligence is defined as the want of even scant care and the failure to exercise even that care which a careless person would use. Bochetto & Lentz rely on the same allegations used to allege probable cause, to support gross negligence. For instance, Bochetto & Lentz rely upon allegations of clearly established law on the issue of payment intangibles, the UCC, the settlement of the Martin action and the absence of WFIC’s verification to allege gross negligence. As discussed supra, said allegations are not sufficient to state a claim for wrongful use of proceedings based on lack of probable cause or gross negligence. As discussed above, there is a dearth of controlling case law on this complex issue and a failure to succeed on the underlying claim does not equate to gross negligence. Similarly, the settlement of the Martin action does not equate to gross negligence. Based on the forgoing, the attorney defendants and corporate defendants’ preliminary objections as to gross negligence are sustained.

CONCLUSION

Based on the foregoing, the attorney defendants and corporate defendants’ preliminary objections are sustained and the complaint is dismissed.

ORDER

And now, this 22nd day of September 2014, upon consideration of defendants preliminary objections to plaintiff’s complaint and all responses in opposition, it hereby is ordered as follows:

1. Defendants Michael Trachtman, Esquire, Benjamin Anderson, Esquire and Powell Tractman Logan Carrie & Lombardo, P.C. preliminary objections to plaintiff’s complaint are sustained.
2. Defendants WFIC, LLC, ACE American Insurance Company and West Chester Fire Insurance Co.’s preliminary objections are susatined.

It is further ordered that the complaint is dismissed against all defendants.

      . Exhibit “F” to the complaint-complaint filed in WEIC v. LaBarre, ¶ io.

        . Id. at ¶ 11.

      . Id at ¶ 12, 13).

      . A payment intangible is a subset of a general intangible under which the account debtor’s principal obligation is a monetary obligation. 13 Pa. C. S. § 9102. General intangibles are defined as any personal property, including things in action, other than accounts, chattel paper, commercial tort claims, deposit accounts, goods, instruments, investment property, letter-of-credit rights, letters of credit, money and oil, gas or other minerals before extraction. The term includes payment intangibles and software. Id. Title 13 Pa.C.S § 9309(2) provides that an assignment of a “payment intangible” is automatically perfected only if the assignment “does not by itself or in conjunction with other assignments to the same assignee transfer a significant part of the assignor’s outstanding.. .payment intangibles”.

        . Shaffer v. Stewart, 326 Pa. Super. 135, 473 A.2d 1017(1984).

      . Hart v. O’Malley, 781 A.2d 1211, 1219 (Pa. Super. 2001).

      . 42 Pa.C.S.A. § 8351.

      . 42 Pa C. S. § 8352. Section (1) and (3) apply to attorney defendants and section (2) applies to corporate defendants.

        . Gentzler v. Atlee, 443 Pa. Super. 128, 660 A.2d 1378 (1995).

      . Judge Glazer relied upon a 9th Circuit Court of Appeal opinion, In re Cohen, 305 B.R. 886 (9th Cir. 2004) when he held Martin’s assignment was not an automatic payment intangible.

      . 13 Pa. C.S.A. § 9332.

      . Official comment to 5(a) to 13 Pa. C. S. A. § 9103 (definitional section).

      . 13 Pa. C.S.A. § 9102.

      . Exhibit “G” to plaintiff’s complaint.

      . See, In re Quaker Distributors, Inc., 189 B.R. 63,72 (Bankr. E.D. Pa. 1995) aff’d in part, 207 B.R. 82 (E.D. Pa. 1997).

      . The court is not persuaded by plaintiff’s argument that since attorney defendants counsel herein argued “vociferously” for another defendant in the underlying matter against the merits of the payment intangible theory that such is sufficient to allege lack of probable cause. Arguments against the theory do not equate to lack of probable cause. Just because someone loses its argument does not justify an action for wrongful use of civil process. In an attempt to elevate form over substance, Bochetto & Lentz rely upon the verification attached to the WIFC complaint to dispel probable cause. The court finds the verification argument to be misplaced since the law is at issue not the facts. Moreover, plaintiff’s allegation characterizing the assignment to WFIC as champertous is not relevant in determining the existence of probable cause to bring the underlying matter.

      . Cogley v. Duncan, 32 A.3d 1288, 1292 (Pa. Super. 2011).

      . See exhibits “C” (“However, under the law as we understand it, all recipients of those payments that should have been paid first to WFIC’s assignor, in accordance with the priority of his security interest, are deemed to have converted the funds they received.”) and “E” (“We have investigated and researched this matter very carefully.”)

      . Buchleitner v. Perer, 794 A.2d 366, 378 (Pa. Super. 2002) (quoting Bannar v. Miller, 701 A.2d 242, 249 (Pa. Super. 1997)) (emphasis added).

      . Hart v. O’Malley, 781 A.2d 1211, 1218 (Pa. Super. 2001). Keystone Freight Corp. v. Stricker, 31 A.3d 967, 973 (Pa. Super. Ct. 2011).

      . Since this court finds that the elements of probable cause and gross negligence have not been pled, the remaining objections are moot.


author: ZULICK, J.,

text:
    Infante v. Bank of America, N.A.

      C.P. of Monroe County,
    No. 2209 CV 2012

      Daniel L. Lyons, for plantiff.

      Michael P. Coughlin, for defendant.
    Sept. 24, 2014
   ZULICK, J.,

FINDINGS OF FACT

1. Matthew Infante (Matthew), a single man, purchased a lot comprised of 1.121 acres at 837 Molasses Valley Road on December 23, 2003 for $35,000.00.

2. Matthew obtained a construction loan in the original principal amount of $157,500.00 from Countrywide Home Loans, Inc. (Countrywide). He gave a mortgage on January 16, 2004 to Countrywide to secure that loan. The mortgage was recorded on January 20, 2004 in the Recorder of Deeds Office (Recorder’s Office) In Record Book volume 2179, page 7715.

3. Matthew and Therese Infante (Therese) were married on February 13, 2004.

4. Matthew transferred title to the property to himself and Therese as tenants by the entireties on February 24, 2004. The deed is recorded in Record Book volume 2182, page 7201 in the Recorder’s Office.

5. The Infantes constructed two houses on the property and took possession on July 16, 2004.

6. One of the two houses is a colonial-style home and the other is a Cape Cod style home. They are connected by a shared laundry room. The Infantes occupied the colonial-style home, and their daughter’s family currently resides in the other.

7. Matthew handled the Infantes’ financial affairs.

8. On January 7, 2008, Matthew obtained a loan from Countrywide in the amount of $200,200.00. The loan was secured by a mortgage (the mortgage) that was recorded in the Recorder’s Office in Record Book volume 2325 page 4786. The loan proceeds were used in part to satisfy the existing mortgage with Countrywide, which had a balance at that time of $152,503.93. Joint exhibit 7, Settlement Sheet, Line 104. The loan was also used to pay off Michael’s credit card debts with Chase ($9,309), WFF National Bank ($2,433), Chase ($8,941), and Sovereign Bank ($16,882). Joint exhibit 7, lines 1302-1305. It also satisfied a loan secured by his Kia Sorrento automobile.

9. Therese had no credit cards in her name in January, 2008.

10. Although Countrywide intended to obtain a first mortgage on the Infante property to secure the new loan, Countrywide only required Matthew to sign the note and mortgage.

11. Service Link, a title agency, handled the title work and conducted the settlement of the loan.

12. Matthew signed a Countrywide loan application in which he acknowledged and agreed that the “loan requested pursuant to this application...will be secured by a mortgage or deed of trust on the property described in this application.”

13. Countrywide issued settlement instructions to Service Link, requiring that “all persons on title” sign the mortgage and that the mortgage constitute a valid, “first position” mortgage against the property. Defendant’s exhibit 3.

14. Matthew completed and signed a “Borrower agreement and certification” at Countrywide’s behest at the time of closing. That document disclosed to Countrywide the following information:

1. List all property owners who are applicants for this loan:
Matthew V. Infante (handwritten)
2. List all other owners:
Therese A. Infante (handwritten)
3.1/We hold the property as:
Husband and wife (handwritten checkmark)
...Note: If holding title as a married person(s), civil union partner(s) or domestic partner(s) please indicate whether you have divorced, separated or have been widowed since the date you acquired the Property as indicated above. Yes _x_No (No was hand-checked)
Plaintiff’s exhibit 5.

15. The mortgage names Matthew V. Infante as “Borrower.” Next to his name on the mortgage, “A SINGLE INDIVIDUAL” is crossed out, and “a married man” is handwritten in its place. Joint exhibit 4.

16. The mortgagee of the mortgage loan was Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for Countrywide.

17. MERS assigned the Infante Mortgage to Bank of America (BOA) on September 13, 2011. The assignment is recorded in the Recorder’s Office at Record Book volume 2391, page 5316. Joint Exhibit 5.

18. Therese began assisting her husband in paying bills in 2009 after he became ill. From that year until May 8, 2011, Therese paid the monthly mortgage payment to Bank of America.

19. Therese was not aware that Matthew had refinanced the mortgage in 2008.

20. Matthew died on May 8, 2011.

21. Therese was made aware of the refinanced mortgage in Matthew’s name alone by her attorney after her husband’s death.

22. Therese stopped paying the Mortgage after May 9, 2011.

DISCUSSION

Therese Infante has filed an action for declaratory judgment requesting the court to declare that the mortgage dated January 7, 2008 between Matthew V. Infante and Countrywide Bank, FSB was never a valid lien against property Therese and Matthew owned at 837 Molasses Valley Road, Kunkletown, Pennsylvania. BOA responded to the suit with a counterclaim, seeking reformation of the mortgage; declaratoiy relief that the Countrywide Mortgage is a valid lien on the Therese Infante property; a finding of equitable subrogation or unjust enrichment; and the imposition of an equitable lien. A non-jury trial was conducted on the parties’ claims September 3,2014 and the parties have filed briefs.

BOA’s first argument is that Therese Infante ratified the mortgage when she paid the mortgage payments from 2009 through May 2011. Therese responds that this defense was not raised in the pleadings. Affirmative defenses not raised in new matter in accordance with Pa.R.C.P. 1030 are waived pursuant to Pa.R.C.P. 1032. Rule 1030 lists but does not limit what is includable as new matter. In essence, new matter is anything other than a denial, setoff, or counterclaim. Anderson, Pennsylvania Civil Practice § 1030.4 (1969), Lorfida v. Mary Robert Realty Co., Inc., 539 A.2d 383, 386 (Pa. Super. 1988). Although ratification is not a listed affirmative defense in Pa.R.C.P. 1030, it is not a denial, setoff or counterclaim and it requires proof of facts independent of the plaintiff’s claim. It should have been raised in new matter.

The ratification defense is not applicable here in any event. BOA argues that Therese Infante ratified the debt when she made payments on the loan from 2009 through May of 2011 when her husband was ill. BOA cites Allegheny Gas Co. v. Kemp, 174 A. 289 (Pa. 1934) in support of its argument. There the Kemps owned a farm as tenants by the entirety. The husband agreed to sell the farm to his nephew in a written agreement of sale. The wife did not sign the agreement but was aware that her husband was selling the farm. The wife later signed a written demand that the buyer pay the balance due on the property or forfeit it. The court found that the Kemps and their buyer had entered into a civil conspiracy to deprive the plaintiff of gas rights to the land. The court also found that the wife had ratified the agreement when she made a demand that the buyer comply with the agreement of sale. When the wife attempted to enforce the agreement, the court found that she consented to be bound by it. “(T)hey can no longer treat it as a nullity, for that would be to maintain a contradiction, or to justify at the same time, two repugnant claims, both the nullity and the validity of the contract.” Id. at 293.

Allegheny Gas Co. v. Kemp is not analogous to the facts in the present case. Here there was no showing that Therese Infante had anything to do with the negotiations or signing of the mortgage, or that she knew about it. She did not contact BOA about the mortgage and demand compliance, like the party in the above case. In fact, Therese did not contact the bank at all; she only paid her husband’s bills while he was ill. There is nothing about Therese’s conduct to suggest she ratified the mortgage. Her husband disclosed at the loan closing that he owned the property jointly with his wife. Paying her husband’s bills while he was ill did not make them her bills.

BOA also argues that it is entitled to equitable subrogation. BOA contends that should be subrogated to its rights under its 2004 mortgage that it satisfied in the 2008 refinancing transaction. This would give BOA a mortgage lien against the Therese Infante property in the amount it paid to satisfy the first mortgage lien in 2008, $152,503.93. BOA points out that at the time Therese took title, this mortgage was a valid lien on the property, and she took title under and subject to it.

BOA cites two decisions of the Pennsylvania Supreme Court in support of its argument. In Haverford Loan and Building Assoc. of Phila. v. Dougherty, 37 A. 179 (Pa. 1897), the borrower, Thomas Dougherty, believed that he held title to a property under his late wife’s will. He obtained a mortgage for $2,200.00 from Haverford Loan and Building Association of Philadelphia. The loan was to be secured by a first lien position against the property. At settlement, the loan proceeds were used in part to satisfy the existing first mortgage held by the Fire Association. After closing, Haverford learned that Dougherty was only a one-fifth tenant in common. The will had devised the property to Dougherty and his four children. Haverford sought equitable subrogation to the first mortgage rights of the Fire Association, whose lien it had satisfied.

The court allowed the subrogation, holding that:

‘Where money has been loaned upon a defective mortgage for the purpose of discharging a prior valid incumbrance, {sic} and has actually been so applied, the mortgagee may be subrogated to the rights of the prior incumbrancer whom he has thus satisfied, there being no intervening incumbrances.’ Sheld. Subr. § 8.
Haverford Loan & Building Ass’n of Philadelphia v. Dougherty, 37 A. 179, 181 (Pa. 1897).

A later decision of the Pennsylvania Supreme Court allowed equitable subrogation under similar circumstances. In Gladowski v. Felczak, 31 A.2d 718 (Pa. 1943), Polish Falcons, Nest No. 290 of Natrona, an unincorporated, subordinate lodge of the Polish Falcons of America, was the owner of a valuable clubhouse in Natrona that had suffered flood damage. The property was subject to a $3,000.00 mortgage. Nest No. 290 conveyed the property to the American Citizen Club, which then obtained a $6,000.00 mortgage. The proceeds from this mortgage paid off the $3,000 mortgage and were otherwise used to make repairs to the property. After the mortgage funds were disbursed, the deed from the Polish Falcons to the American Citizen Club was declared invalid because the local chapter did not have the necessary approval of the national organization to sell the property.

The new mortgagee did not have a valid first mortgage, because the deed to the American Citizen Club had been declared by a court to be invalid. The mortgagee brought an action seeking to impose its mortgage as an equitable lien. Our Supreme Court allowed the lien, citing the restatement of restitution:

‘Where a person lends money to another who contracts to use the money for the discharge of a lien upon property which the other represents as belonging to him and where the money so lent is used for the discharge of such lien, the lender is entitled to have the lien reinstated for his benefit if, unknown to him, the property was not owned by the other.
Gladowski v. Felczak, 31 A.2d 718, 720 (Pa. 1943), citing Restatement of the Law of Restitution, § 43(c).

Therese Infante has cited recent decisions of the Pennsylvania Superior Court which deny relief to a mortgagee like BOA which has paid an existing first mortgage but mistakenly did not obtain a first mortgage lien position. These cases consider a creditor who has paid a first mortgage lien in an attempt to obtain its own first mortgage position a “volunteer” and deny relief. The Superior Court discussed the doctrine of equitable subrogation in 1313466 Ontario, Inc. v. Carr, 954 A.2d 1, 4-6 (Pa. Super. 2008):

(W)e have recognized the doctrine of equitable subrogation. Id., see Public Service Mutual Ins. Co. v. Kidder-Friedman, 743 A.2d 485, 488 (Pa. Super. 1999). Like many other jurisdictions, we require four criteria to be met for equitable subrogation to apply. Heller, 863 A.2d at 1158. These four requirements are:
(1) the claimant paid the creditor to protect his own interests;
(2) the claimant did not act as a volunteer;
(3) the claimant was not primarily liable for the debt; and
(4) allowing subrogation will not cause injustice to the rights of others.
Id.
Examining the second requirement that the claimant did not act as a volunteer, in Home Owners’ Loan Corp. v. Crouse, 151 Pa. Super. 259, 30 A.2d 330 (1943), this court found that a creditor who had extended a loan, the proceeds of which were applied to previously secured liens, was a volunteer. We concluded that the creditor acted as a volunteer because the creditor was “an entirely voluntary agent with no interest in the property and at liberty to make its own bargain-agree or refuse to make the loan as it saw fit.” Id. at 332. Accordingly, we concluded that the creditor was not entitled to the relief of equitable subrogation because it had not met the second requirement of the doctrine...
Home Owners ’ reveals one important difference between Pennsylvania’s application of equitable subrogation and the application of the doctrine by the Restatement. Under Home Owners’, a creditor such as U.S. Bank is considered an “entirely voluntary agent with no interest in the property.” Id. at 332. However, the restatement does not adopt the “volunteer” rule but instead only requires that the subrogee paid the creditor to protect some interest. Heller, 863 A.2d at 1159 n. 9. Thus, under the restatement, a mortgagee pays off existing loans in order to protect its own interest in gaining the first priority lien position, and therefore would be entitled to the remedy of equitable subrogation. Id.
Another important difference between Pennsylvania law on equitable subrogation and the restatement’s approach is also illustrated in Home Owners ’. There, we explained that “the courts of equity will not relieve a party from the consequences of an error due to his own ignorance or carelessness when there were available means which would have enabled him to avoid the mistake if reasonable care had been exercised.” Id. at 332 (citing Felin v. Futcher, 51 Pa. Super. 233, 1912 WL 4727 (Pa. Super. 1912)). We went on to conclude that the creditor’s mistake “can be attributed only to its own negligence in failing to search or discover what clearly appeared on the public records.” Id. The Restatement, on the other hand, says that “subrogation can be granted even if the payor had actual knowledge of the intervening interest; the payor’s notice, actual or constructive, is not necessarily relevant.” Restatement (Third) of property, mortgages, § 7.6 cmt. e (1997). Instead, what is relevant under the restatement is “whether the payor reasonably expected to get security with a priority equal to the mortgage being paid.” Id. In fact, the Restatement declares that a refinancing mortgagee should be presumed to have this expectation, even if they are aware of a remaining lien, unless there is affirmative proof that the mortgagee intended to subordinate its mortgage to the remaining interest. Id.
Despite the differences in the restatement’s application of equitable subrogation and in Pennsylvania’s application of the doctrine, Home Owners ’ has not been overruled, and as such, it remains binding precedent on this court. Heller, 863 A.2d at 1159-60. Thus, in Heller, we concluded that, “While we find the logic of the restatement to be compelling and very persuasive, we are bound by principles of stare decisis and accordingly, must find the trial court properly determined appellant is not entitled to the remedy of equitable subrogation.” Heller, 863 A.2d at 1157-58. Similarly, we must also follow the precedent set by Home Owners’ and Heller. As we find no facts that distinguish the instant case from Home Owners ’ or Heller, we conclude that the denial of U.S. Bank’s petition to intervene was proper because U.S. Bank is not a party entitled to relief. Heller, 863 A.2d at 1160. Accordingly, this appeal must be quashed.
Id.

The Ontario decision expressed the superior court’s reluctance to find that a mortgagee in a refinancing is acting as a volunteer in satisfying existing first mortgages. Obviously, the court agreed with the restatement position that a mortgagee must satisfy existing mortgages in order to perfect its own first lien position. First lien position is the cornerstone upon which residential mortgage lending is based. The superior court felt that it was bound by the precedent established in Home Owners ’ and therefore had to deny equitable subrogation.

BOA argues that seventy years of Superior Court precedent has ignored the law as applied by the Pennsylvania Supreme Court in the Haverford and Gladowski cases. The supreme court stated in Haverford:

In the present case the appellant was not a volunteer, but paid the first mortgage on the express direction of the debtor, and with the intention of both parties that the appellant should be secured by the land. ‘A person who has lent money to a debtor for the purpose of discharging a debt may be subrogated by the debtor to the creditor’s rights; and if the party who has agreed to advance the money for the purpose employs it himself in paying the debt and discharging the incumbrance on land given for its security, he is not to be regarded as a volunteer. He is not, after such an agreement with the debtor, a stranger in relation to the debt, but may, in equity, be entitled to the benefit of the security which he has satisfied with the expectation of receiving a new mortgager or lien upon the land for the money paid.’ Dix. Subr. 165. “When the holder of a junior mortgage discharges the lien of a senior incumbrance upon the property, he thereby becomes entitled to all the benefits of the security represented by the lien so discharged.’ Beach, Mod. Eq. Jur. § 804. ‘When on the foreclosure of a second mortgage it appears that the loan by the second mortgagee was made on an agreement with the mortgagor that it should be applied to extinguish the first mortgage, and that part of the loan was actually so applied, the second mortgagee is entitled to a decree subrogating him to the rights of the first mortgagee on payment of the balance due on the mortgage.’ Id. § 806. ‘Where money has been loaned upon a defective mortgage for the purpose of discharging a prior valid incumbrance, and has actually been so applied, the mortgagee may be subrogated to the rights of the prior incumbrancer whom he has thus satisfied, there being no intervening incumbrances.’ Sheld Subr. § 8. Haverford Loan & Building Ass’n of Philadelphia v. Dougherty, 37 A.179, 181 (Pa. 1897).

Almost fifty years later, in the Gladowski case the Supreme Court again allowed equitable subrogation where a mortgage was obtained on a defective title. Here the court cited the Restatement of Restitution in support of its ruling:

And in § 162 it is stated: ‘Where property of one person is used in discharging an obligation owed by another or a lien upon the property of another, under such circumstances that the other would be unjustly enriched by the retention of the benefit thus conferred, the former is entitled to be subrogated to the position of the obligee or lienholder.’ That the law in most jurisdictions is in accord with these statements is shown by the long list of authorities in support of them cited in Ingram v. Jones, 10 Cir., 47 F.2d 135, 140. That they have been accepted and followed by the appellate courts of our own State is established by cases in which they have been applied: Haverford Loan & Building Association v. Fire Association of Philadelphia, 180 Pa. 522, 37 A. 179, 57 Am. St. Rep. 657; Smith v. Smith, Jr., 101 Pa. Super. 545; see also General Casmir Pulaski Building & Loan Association v. Provident Trust Co., 338 Pa. 198, 12 A.2d 336. Gladowski v. Felczak, 31 A.2d 718, 720 (Pa. 1943).

It should also be noted that the rights of a third party lien creditor were directly involved in the decision in Home Owners’ Loan Corporation v. Crouse, et. al., 30 A.2d 330 (Pa. Super. 1943), which the Ontario court followed. There, Crouse was a judgment creditor behind the liens paid by Home Owners’ Loan Corporation. When Home Owners’ Loan Corporation paid off the senior liens, Crouse became a first lien holder. The Superior Court felt it was wrong after a significant passage of time, to deny Crouse his lien priority.

Here, there are no intervening creditors. Admittedly, Countrywide and its title company were negligent, perhaps grossly so. Countrywide requested a first mortgage position from Matthew, and required all owners to be on the mortgage in its loan instructions. Yet Matthew disclosed on his paperwork that Therese was a co-owner. The mortgage was hand corrected to state that he was a married man. Under these circumstances, BOA is not entitled to mortgage reformation. See Regions Mortgage, Inc. v. Muthler, 889 A.2d 39 (Pa. 2005). However, equitable subrogation to the 2004 mortgage Countrywide satisfied is not reformation. The Supreme Court decisions, Haverford and Gladowski, do not address whether the negligence of the creditor precludes subrogation.

There is no evidence here that Countrywide acted in bad faith. It loaned Matthew the money in 2008 and satisfied a mortgage that encumbered Therese’s title. No Intervening Creditors’ rights are involved, as in Ontario. Under the Haverford and Gladowski decisions, Countrywide did not act as a volunteer, as the mortgage was satisfied as a result of Matthew’s refinancing. Finally, Therese would be unjustly enriched if equitable subrogation were not allowed. After due consideration, I find that based upon the Haverford and the Gladowski rulings, BOA is entitled to equitable subrogation to its earlier mortgage, which it satisfied in 2008.

DECISION

And now, this 24th day of September, 2014, following a non-jury trial in this case and upon consideration of the parties’ briefs, it is ordered that:

1. Plaintiff Therese A. Infante’s request for declaratory judgment is granted in part and denied in part. Her request for a determination that the 2008 Countrywide mortgage may not be reformed to include her as mortgagor is granted. However, Bank of America, N.A. shall be equitably subrogated to the extent of its payment to satisfy the 2004 Countrywide mortgage, as set forth in the next paragraph.

2. Defendant Bank of America N.A.’s request for equitable subrogation to the 2004 Countrywide mortgage is granted, and an equitable lien is impressed, as of January 20, 2004 upon the property of Therese Infante in Eldred Township, Monroe County, Pennsylvania as is more particularly described in the deed from Michael V. Infante to Michael V. Infante and Therese Infante, his wife, recorded in the Office for the Recording of Deeds in and for Monroe County Pennsylvania in record Book volume 2182, page 7201 in favor of defendant Bank of America, N.A., in the amount of $152,503.93 together with interest on that sum from June 1,2011.

3. In all other respects, the counterclaim of Bank of America is denied.

      . The Superior Court concluded by saying that:
      In conclusion, we note that our decision here is guided not only by the principle of stare decisis, but also by the fact that it was U.S. Bank’s carelessness that brought about the pecuniary loss it is now facing. However, had U.S. Bank been aware of the mortgage held by Ontario, and Ontario refused to subordinate its mortgage to U.S. Bank’s new mortgage, then in all likelihood, U.S. Bank would not have extended a loan to Carr that would have permitted him to refinance his home loan. Moreover, under Pennsylvania’s interpretation of the doctrine of equitable subrogation, neither Carr nor U.S. Bank could effect this subordination through a process of equitable subrogation, thereby in all likelihood leaving Carr unable to refinance his existing loan. This scenario may be a frequent dilemma for homeowners amidst the current mortgage crisis, where 1.3 million housing properties were subjected to foreclosure activity in 2007, and estimates predict that capital losses in housing may reach into the trillions of dollars in the coming years. In Sight of the present situation, it is arguable that the issue of Pennsylvania’s application of equitable subrogation may be ripe for legislative review.

        1313466 Ontario, Inc. v. Carr, 954 A.2d 1, 4-6 (Pa. Super. 2008).

      . Therese Infante points out that my decision in America’s Wholesale Lender v. Ryan, et al., 10647 Civil 2011 supports denial of BOA’s claims. That decision was based upon America’s Miolesale Lender’s request to reform the mortgage to include wife’s interest, and was therefore controlled by the Regions Mortgage decision.