author: HODGE, J.,

text:
    Wynder v. Wynder

      C.P. of Lawrence County,
    no. 11380 of 2004, C.A.

      Anthony Piatek, for plaintiff.

      Shawn A. Sensky, for defendant.
    March 1, 2011
   HODGE, J.,

The plaintiff and defendant have presented exceptions to the report of the master relative to the economic claims attendant to the parties’ divorce action.

The parties were married on May 14, 1994 and separated on September 22,2004. Plaintiff presented seven exceptions for review: 1) the master erred in failing to award plaintiff/wife 65 percent of the marital assets; 2) the master erred in failing to award plaintiff/wife 65 percent of the marital portion of husband’s pension plan; 3) the master erred in failing to award plaintiff/wife 65 percent of the marital portion of the 401k plan; 4) the master erred in failing to require defendant/husband to pay 100 percent of plaintiff/wife’s attorney’s fees; 5) the master erred in failing to require defendant/husband to pay 100 percent of the master’s fees; 6) the master erred in failing to require defendant/husband to pay 100 percent of the QDRO preparation fee; and 7) the master erred in failing to value the defendant/husband’s 1999 Toyota Tacoma at $8,000.

The defendant presented nine exceptions for review: 1) the master erred in awarding plaintiff/wife 57.5 percent percent of the marital assets; 2) the master erred in requiring defendant/husband to pay $1,800 of plaintiff/wife’s attorney’s fees 3) the master erred in requiring defendant/ husband to pay two-thirds of the QDRO preparation fee; 4) the master erred in requiring defendant/husband to pay two-thirds of the master’s fees; 5) the master erring by using the full value of defendant/husband’s 401k plan for the purposes of equitable distribution; 6) the master erred in not giving defendant/husband credit in equitable distribution for making payments in the sum of $5,360.00 towards a $30,000 loan on defendant/husband’s 401k plan; 7) the master erred in not giving defendant/husband credit in equitable distribution for payments defendant/ husband made on a loan associated with a 1999 Dodge Caravan in the amount of $2,756.05 and payments made on a master card in the amount of $824.08;8) the master erred in valuing the Husqvrana Zero Turn riding mower at $2,000 and the Honda push mower at $200; and 9) the master erred in valuing the $30,000 401k plan loan payoff amount at $28,973.63.

In disposing of these exceptions, the court observes that while a master’s report is advisory only, it is to be given great deference. Fiorelli v. Fiorelli, 195 A.2d 369 (Pa. Super. 1964), Morschhauser v. Morschhauser, 516 A.2d 10 (Pa. Super. 1986). A reviewing court has a duty to make a complete and independent review of the proceeding below. Rollman v. Rollman, 421 A.2d 755 (Pa. Super. 1980).

In reviewing master’s considerations, however, the report should be given “fullest consideration” particularly on issues of credibility. Kohl v. Kohl, 564 A.2d 222 (Pa. Super. 1989). The review is' intended to discover inherent improbabilities in the stories of the witnesses, inconsistencies and contradictions, bias, interest, and opposition to incontrovertible physical facts by which credibility may be ascertained. Rollman, supra. However, because the master is the person hearing the testimony and observing the demeanor and appearance of the witness, any issue of credibility must be resolved by giving the master’s findings the fullest consideration. Rorabaugh v. Rorabaughu, 448 A.2d 64 (Pa. Super. 1982). With this standard in mind, the following is a discussion and disposition of the parties’ exceptions.

PLAINTIFF’S EXCEPTION 1

The master erred in failing to award plaintiff/wife 65 percent of the marital assets.

In her first exception, wife contends that the master erred in failing to award her a greater portion of the marital assets. In support of her argument, wife asserts that due to the nature of the marital assets, the parties have a relatively small portion of funds available for immediate distribution. Wife further contends that based on the factors set forth in 23 Pa.C.S. §3502, she is entitled to a greater distribution of the marital property.

A trial court has broad discretion in fashioning equitable distribution awards. Isralsky v. Isralsky, 824 A.2d 1178,1184 (Pa.Super.2003). The Divorce Code further provides that a trial court

Shall...equitably divide, distribute or assign, in kind or otherwise, the marital property between the parties in such proportions and in such manner as the court deems just after considering all relevant factors....23 Pa.C.S. §3502(a).

Thus, the affirmed objectives of the Divorce Code are to “effectuate economic justice between the parties... and insure a fair and just determination of their property rights.” Anzalone v. Anzalone, 835 A.2d 773, 785 (Pa. Super. 2003). Moreover, a trial court has “the authority to divide the award as the equities presented in the particular case may require.” Drake v. Drake, 555 Pa. 481, 725 A.2d 717, 727 (1999).

The master specifically discussed each factor to the extent that they were applicable to the facts relative to this case. The master was aware of and commented, on each provision that resulted in wife being awarded a distribution fashioned in her favor. Specifically, the master addressed the parties’ current and future earnings, the difference in the parties’ retirement benefits, the difference in the parties’ health benefits, and the assets already obtained by each party. The court finds that the master did not abuse his discretion in his division of the marital assets. He effectuated economic justice by finding that the factors slightly favored wife over husband and, thus, recommended an appropriate division of the marital property.

Accordingly, plaintiff’s exception 1 is denied.

PLAINTIFF’S EXCEPTION 2

The master erred in failing to award plaintiff/wife 65 percent of the marital portion of husband’s pension plan.

For the reasons previously set forth in plaintiff’s exception 1, plaintiff’s exception 2 is denied.

PLAINTIFFS EXCEPTION 3

The master erred in failing to award plaintiff/wife 65% of the marital portion of the 401k plan.

For the reasons previously set forth in plaintiff’s exception 1, plaintiff’s exception 3 is denied.

Plaintiff’s Exception 4

The master erred in failing to require defendant/ husband to pay 100 percent of plaintiff/wife’s attorney’s fees.

Counsel fees are awarded based on the facts of each case after a review of all the relevant factors. These factors include the payor’s ability to pay, the requesting party’s financial resources, the value of the services rendered, and the property received in equitable distribution. Perlberger v. Perlberger, 626 A.2d 1186,1206-07 (Pa.Super. 1993). Moreover, “[cjounsel fees are awarded only upon a showing of need” and where specific circumstances warrant such an award. Harasym v. Harasym, 614 A.2d 742, 747 (Pa.Super. 1992); Johnson v. Johnson, 529 A.2d 1123 (Pa.Super. 1987).

Wife argues that the master should have required husband to pay 100 percent of he attorney’s fees, and bases her argument on the vast difference in the parties’ income and earning potential. Wife further argues that after these proceedings are completed, her ability to pay for her attorney’s fees will decrease, as her alimony pendent lite will terminate. Wife incurred a total of $6,044.51 in attorney’s fees; this figure does not include costs for litigation involving custody. Husband was required to pay $1,800.00 towards this amount. Although the court agrees that wife’s income and earning potential is not on par with husband’s, wife did testify that she has been making monthly payments towards her attorney’s fees. The court therefore finds that the master appropriately factored wife’s ability to pay and her current and future financial position in requiring husband to pay almost 30 percent of wife’s attorney’s fees relating to the divorce and support proceedings.

Plaintiff’s exception 4 is therefore denied.

PLAINTIFF’S EXCEPTION 5

The master erred in failing to require defendant/ husband to pay 100 percent of the master’s fees.

Plaintiff’s fifth exception basically contends that the master erred by requiring her to pay a portion of the master’s fees. Wife’s argument is based on the same assertions set forth in her fourth exception; specifically that the vast difference in the parties’ income and earning potential results in the master’s division of responsibility for the master’s fees being unfair.

Areview of the master’s recommendation indicates that the total balance due for master’s fees is $2,375.00. Of this amount, husband was required to pay 66 2/3 percent or $1,583.33. Wife was required to pay 33 1/3 percent or $79L67. The master explained that, “[b]ased upon all considerations of equitable distribution and costs analysis, the Master recommends husband shall be responsible for 66 2/3 % of the [remaining] fee..., and wife shall be responsible for 33 1/3 % of the remaining fee.”

The court finds that in lieu of the favorable equitable distribution award to wife and having considered the minimal costs incurred by wife for the master’s fee, the master’s distribution of costs for his services was appropriate. Plaintiff’s exception 5 is therefore denied.

PLAINTIFF’S EXCEPTION 6

The master erred in failing to require defendant/husband to pay 100 percent of the QDRO preparation fee.

Plaintiff’s sixth exception also alleges that the master erred by requiring her to pay a portion of the QDRO preparation fee.

Wife’s argument is based on the same assertions set forth in her fourth and fifth exceptions, which consistently argue that the vast difference in the parties’ income and earning potential results in the master’s division of responsibility for the QDRO preparation fee being unfair.

A review of the master’s recommendation and the applicable record indicates that husband’s employer will charge $300.00 to review a qualified domestic relations order. Consequently, the master portioned the responsibility of this cost in the same manner in which the master’s fees were allotted. Specifically, husband is responsible for $200, and wife is responsible for $100. In making this recommendation, the master’s rationale was consistency with the apportionment of the master’s fees.

The court finds this distribution of costs to be appropriate for the reasons set forth in plaintiff’s exception 5. Plaintiff’s exception 6 is therefore denied.

PLAINTIFF’S EXCEPTION 7

The master erred in failing to value the defendant/ husband’s 1999 Toyota Tacoma at $8,000.

Plaintiff’s last exception takes issue with the valuation of a 1999 Toyota Tacoma purchased by the parties prior to separation. Husband retained possession of the Tacoma after separation and sold it shortly thereafter; the money received for the Tacoma was used by husband to purchase a 2002 Toyota Tundra. At the master’s hearing, husband was unable to recall the specific amount he received for the Tacoma, but testified that he financed $8,500 for the remaining balance on the Tundra. The master concluded that the Tacoma had a marital value of $5,000.

Wife asserts that during the master’s hearing, the only evidence presented in regards to the value of the Tacoma came from wife. Wife testified that within months of husband purchasing the Tacoma, he listed it for sale for the amount of $16,500. Wife argues in her exception that if husband was seeking $16,500 for the Tacoma, and he only financed $8,500, the remaining balance of $8,000 must have come from the sale of the Tundra.

During the master’s hearing, wife’s counsel tried to present this same argument by way of wife testifying to the facts set forth above. (N.T. Oct. 28, 2010, pps 145-146) Although the master allowed the testimony to come in over the objections of husband’s counsel, the master clearly indicated that wife’s testimony regarding the listed sale price of the Tundra was “not dispositive” of the Tacoma’s actual value. (N.T. Oct. 28, 2010, p. 146.)

The master’s indication is correct. Although there is no specific method for valuing marital assets, a trial court is free to accept all, none or portions of testimony presented by the parties regarding the value of marital property. 23 Pa.C.S. § 3501(c); Verholek v. Verholek, 741 A.2d 792 (Pa. Super. 1999).

The court finds that wife’s argument presents no real evidence for this court to circumvent the findings of the master. The fact that husband listed the Tundra for $16,500 is not dispositive of the actual amount he received for the Tacoma, even if this court considers the amount needed to finance the remaining balance. For instance, it could have been husband’s intention to list the Tundra for a higher value than he was willing to receive to allow for room to bargain. Additionally, no evidence was presented as to the amount husband actually received for the Tacoma.

In accordance with the discussion set forth above, plaintiff’s exception 7 is denied.

DEFENDANT’S EXCEPTION 1

The master erred in awardingplaintiff/wife 57.5 percent of the marital assets.

Husband’s first exception argues that the master erred in not giving the appropriate weight to various facts such as the custody arrangement between.the parties, wife’s current earning potential and employment status, prior distributions of assets made to the parties, and husband’s age and medical needs.

The Domestic Relations Code does not dictate the weight to be placed on each of the criteria set forth in 23 Pa.C.S. §3502, which is within the sole discretion of the trial court. Sergi v. Sergi, 506 A.2 928 (Pa.Super. 1986). The court finds that the master specifically addressed these factors in his report and recommendations. Furthermore, the court finds the master’s review and discussion of each of the statutory factors to be an appropriate and accurate review of the circumstances pertaining to this case. The Domestic Relations Code does not dictate the weight to be placed on each of the criteria set forth in 23 Pa.C.S. §3502, which is within the sole discretion of the trial court. Sergi v. Sergi, 506 A.2 928 (Pa.Super. 1986).

Additionally the court notes that there is no presumption of an equal 50/50 distribution of marital property. In fact, a court may not use 50/50 as a starting point for its analysis, as doing so requires a court to make improper presumptions outside of its discretion. Frataneelo v. Fratangelo, 520 A.2d 1195 (Pa.Super.1987).

For the reasons previously set forth above, defendant’s exception 1 is denied.

DEFENDANT’S EXCEPTION 2

The master erred in requiring defendant/husband to pay $1,800 ofplaintiff/wife’s attorney’s fees.

The court’s discussion of defendant’s exception 4 is primarily set forth in plaintiff/wife’s exception 4. Additionally, however, the court would like to address a portion of husband’s exception 4, which argues that wife’s award of alimony pendent lite was significant and more than enough to cover the $6,044.51 in attorney’s fees incurred by wife.

In disposing of this portion of husband’s exception, the court notes that wife paid additional attorney’s fees for litigation surrounding custody of the parties’ children and divorce proceedings. During argument on exceptions from the report of the master, husband contended that it was improper for the master to require husband to pay any portion of wife’s attorney’s fees as this cost was sufficiently covered by her alimony pendete lite award. Considering that the APL award was surely utilized for all litigation initiated by the parties, and not just the equitable distribution proceedings, the court finds husband’s argument to be without merit.

Defendant’s Exception 2 is therefore denied.

DEFENDANT’S EXCEPTION 3

The master erred in requiring defendant/husband to pay two-thirds of the QDRO preparation fee.

Defendant’s third exception contends that the master erred by requiring husband to pay two-thirds of the master’s fees. Husband’s argument is based on his assertion that the master’s overall division of marital assets is inequitable. Husband further argues that a more appropriate equitable distribution should reflect a 50/50 division of marital assets.

The court will again remind husband that it is improper to presume an equal 50/50 distribution of marital property. Fratangelo, supra. Additionally, the court believes husband’s exception to be without merit after considering the master’s overall recommendation and the fact that this court has determined said recommendation to be an appropriate and fair distribution of marital assets.

Defendant’s Exception 3 is therefore denied.

DEFENDANT’S EXCEPTION 4

The master erred in requiring defendant/husband to pay two-thirds of the master’s fees.

Defendant’s fourth exception contends that the master erred by requiring husband to pay two-thirds of the master’s fees. Husband’s argument again correlates with his assertion that the master’s overall division of marital assets is inequitable and that a more appropriate equitable distribution should reflect a 50/50 division of marital assets.

As previously stated in plaintiff’s Exception 5, the master’s recommendation indicates that the total balance due for master’s fees is $2,375.00. Husband was required to pay 66 2/3 percent or $1,583.33. Wife was required to pay 33 1/3 percent or $791.67. The master recommended this division of costs “[b]ased upon all considerations of equitable distribution and costs analysis.”

The court finds the master’s distributions of the master’s fees to be appropriate and well reasoned.

Defendant’s Exception 4 is therefore denied.

DEFENDANT’S EXCEPTION 5

The master erring by using the full value of defendant/ husband’s 401k plan for the purposes of equitable distribution.

Marital property means all property acquired by either party during the course of marriage and prior to the date of final separation. 23 Pa.C.S. §3501(a). There is a presumption that property acquired by either party during the marriage is marital property, unless it is proved by a preponderance of evidence that the property is excluded under §3501(a). 23 Pa.C.S. §3501(b); Drake v. Drake, 555 Pa. 481, 725 A.2d 717 (Pa. 1999); Mackalica v. Mackalica, 716 A.2d 653 (Pa.Super. 1998).

Husband’s 401k plan had a value of $78,361.54 at separation. The master used this figure for the purposes of equitable distribution. The court is inferring from husband’s fifth exception that husband contends a portion of this amount is non-marital because husband opted into the pension plan prior to being married. Evidence was presented at the master’s hearing to establish that husband has been employed by First Energy since October 16, 1991. Husband admits, however, that he did not initially contribute to the 401k plan, as doing so was optional, he opted into it “a year or two after I was employed there.” N.T. Oct. 28, 2010, pps 126. The court can infer from husband’s testimony that he began contributing to his 401k plan some time between October of 1992 and October of 1993, approximately one to two years before the parties were married on May 14, 1994. However, husband has failed to present any evidence to support his assertion.

The court determines that the master properly used the sum of $78,361.54 for equitable distribution. Husband has not established a specific date that both the master or the court can use to establish what portion of the 401k plan is marital property, and the court finds that any amount, which husband may have contributed to the 401k plan prior to the parties being married, is de minimus.

Defendant/husband’s exception 5 is therefore denied.

DEFENDANT’S EXCEPTION 6

The master erred in not giving defendant/husband credit in equitable distribution for making payments in the sum of $5,360.00 towards a $30,000 loan on defendant/ husband’s 401kplan.

The basis of husband’s sixth exception relates to a loan obtained from husband’s 401k plan in the amount of $30,000. The parties used this loan towards a down payment for a residence at 313 North Market Street, New Wilmington, Pennsylvania in July of 2003. The parties lived together at this residence until January 2005, when husband moved out. Shortly thereafter, in August, wife left the residence and husband subsequently moved back in.

The residence was later sold on August 12, 2008. The proceeds from the sale, $70,119.50, were placed in escrow with PNC Bank. The proceeds were escrowed in their entirety because wife objected to husband satisfying the remaining balance of the $30,000 loan from his 401k. Consequently, husband was forced to continue making weekly payments of $46.61, for a total of $5,360.00.

Husband now asserts that the master erred in his determination that due to the date used for purposes of valuation of husband’s 401k, it was not necessary to credit husband with $5,360.00 for payments he made on the 401k loan. A review of the master’s report indicates that any payments made to the 401k loan, including interest, are directly credited to husband’s 401k plan, and the principle value of the plan subsequently increases. The master assessed the value of husband’s 401k from the date of separation and determined it to be worth $49,387.91. The master determined that if the date of separation was used for assessing the marital portion of husband’s 401k, husband would receive the benefit of any subsequent payments made by him, specifically the $5,360.00, as any post separation payments would subsequently increase the non marital portion of the 401k, which was not used for the purposes of equitable distribution. Additionally, the master required that the outstanding loan balance be repaid resulting in husband’s 401k increasing in portion to the loan balance. The amount owed on the loan, $28,973.63, was also determined from the date of separation.

In disposing of husband’s sixth exception, the court notes that a trial court may grant full credit, partial credit, or no credit at all for a spouse’s post-separation payments of joint debts if the payment is made voluntarily from his or her income or separate assets. Diament v. Diament, 816 A.2d 256 (Pa. Super. 2003)(contrast with Duff v. Duff, 510 Pa. 251, 507 A.2d 371 (Pa. 1986), holding that a spouse is entitled to full credit for his or her post-separation payment of joint debt, if the payment is made from marital funds) (emphasis added).

Two figures were utilized to determine the marital portion of husband’s 401k: 1) the balance as of the date of separation, $49,387.91; and 2) the balance of the loan as of the date of separation, $28,973.63. The two figures amount to a total valuation of $78,361.54. Husband argues that he was not given credit for payments made to the 401k loan after the parties separated; the court, however, disagrees. The master required that the balance of the loan at the time of separation be paid off. This action results in husband retaining any value contributed to his 401k after separation including the $5,360.00. Any subsequent payments by husband are secured in the non-marital portion of his 401k and not subject to equitable distribution.

Defendant’s Exception 6 is therefore denied.

DEFENDANT’S EXCEPTION 7

The master erred in not giving defendant/husband credit in equitable distribution for payments defendant/ husband made on a loan associated with a 1999 Dodge Caravan in the amount of $2,756.05 and payments made on a Master Card in the amount of $824.08.

Areview of the master’s recommendation indicates that the master assessed the Dodge Caravan a marital value of $3,500. Wife retained the Caravan after separation although husband paid off the balance of the vehicle in the amount of $2,756.95. Husband believes that the master failed to give him credit for paying the remaining balance on the vehicle.

The court finds husband’s complaint to be without merit. In 2009 the value of the Caravan was $1,200. When wife later traded in the Caravan towards the purchase of a newer vehicle, she received $700. Master, however, valued the Caravan at $3,500 and credited this amount to wife’s portion of marital assets previously distributed. It is the determination of this court that master, in assessing the Caravan at a considerably higher value than its actual value and assigning the increase in value to wife’s distribution amount, did in fact give husband credit for the $2,756.95 he expended towards paying of the vehicle. If the court subtracts $700 (actual value) from $3,500 (value assessed by master) the balance is $2,800. If the court would evaluate these figures in a very precise matter, the result would be that husband actually received an additional credit of $43.05 that he was not owed.

The second portion of husband’s seventh exception argues that the master failed to credit husband with payments made by husband on a Master Card in the amount of $824.08. On page 33 of the master’s report it indicates that, “[t]he master acknowledges that husband has made the payments of marital property expenses following separation.” Included in the list is husband’s payment of $824.08 for the Master Card. The master further notes that this payment was considered in setting the recommended award to wife of 57.5 percent, “as opposed to a greater percentage.” Id. The court finds that the master did properly consider the payments made by husband, and husband received credit in this respect.

Defendant/husband’s Exception 7 is therefore denied.

DEFENDANT’S EXCEPTION 8

The master erred in valuing the Husqvrana zero turn riding mower at $2,000 and the Honda push mower at $200.

Husband’s eighth exception contends that the master erred in his valuation of lawn equipment purchased by the parties prior to separation. Husband first avers that the Husqvrana zero turn riding mower (hereinafter “riding mower”) is more properly valued at $1,100.00, as this was the amount he received when he sold it after the parties were separated.

The Divorce Code does not contain a specific method for valuing marital assets (with the exception of defined benefit retirement annuities). 23 Pa.C.S. § 3501(c). A trial court may consider estimates, inventories, records of purchase price and appraisals submitted by the parties, and a court is free to accept all, none or portions of the testimony regarding value. Verholek v. Verholek, 741 A.2d 792 (Pa.Super. 1999). Additionally, it is not outside a court’s discretion to average values given by the parties or their appraisers. Aletto v. Aletto, 537 A.2d 1383 (Pa. Super. 1988).

The parties purchased the riding mower in 2003 for $4,300.00; husband later sold the riding mower for $1,100.00. Although the measure of personal property is typically fair market value in most divorce cases, using such a value is more appropriate where neither a buyer nor a seller is under a compulsion to buy or sell the property in lieu of the ongoing circumstances relating to individual cases. Husband testified that he sold the riding mower because he needed the money. (N.T., Oct. 28, 2010 p. 104) In light of these circumstances, the court finds that the master did not err in valuing the riding mower at a higher value than what it was sold for by husband. The court believes that the master’s value is a more accurate reflection of the riding mower’s fair market value.

With respect to the defendant’s contention that the master erred in his valuation of the Honda push mower at $200. Testimony was presented at the equitable distribution hearing established that the push mower, which is not currently running, was recently valued at $125.00. The push mower would be worth $250.00, however, if it were operating. The court finds that the master’s valuation is appropriate because, although the push mower is currently not operable, it has the ability to be repaired (at some cost to husband). The court determines that the master correctly factored in the approximate costs of repairs and decreased the push mower’s value accordingly.

In accordance with the discussion set forth above, defendant’s exception 8 is denied.

DEFENDANT’S EXCEPTION 9

The master erred in valuing the $30,000 401kplan loan payoff amount at $28,973.63.

Husband’s last exception asserts that the master erred in valuing the $30,000 loan payoff amount at $28,973.63. In his brief to the court, husband argued that evidence was presented at the equitable distribution hearings, that as of June 11, 2010, the payoff value was $22,848.21.

The court finds husband’s last argument to be without merit. The master properly selected the date of separation for determining the balance owed on the $30,000 loan from husband’s 401k. The court believes that, consistent with the court’s discussion and disposition of defendant’s exception 6, using the date of separation to determine the balance of the 401k loan is necessary to effectuate an equitable distribution of this specific marital asset.

Defendant’s exception 9 is therefore denied.

ORDER OF COURT

And now, March 1, 2011, with this matter being before the court on February 15, 2011 for argument on exceptions to the master’s report and recommendations filed on behalf of each party, and with Anthony S. Piatek, Esquire, appearing and representing the plaintiff, Sharon A. Wynder and with Shawn A. Sensky, Esquire, appearing and representing the defendant, Wilbur H. Wynder, III, and the cojurt having fully considered the arguments presented by counsel and having completed a thorough review of the record in this case, it is hereby ordered and decreed as follows:

1. Plaintiff’s exception 1 is denied.
2. Plaintiff’s exception 2 is denied.
3. Plaintiff’s exception 3 is denied.
4. Plaintiff’s exception 4 is denied.
5. Plaintiff’s exception 5 is denied.
6. Plaintiff’s exception 6 is denied.
7. Plaintiff’s exception 7 is denied.
8. Defendant’s exception 1 is denied.
9. Defendant’s exception 2 is denied.
10. Defendant’s exception 3 is denied.
11. Defendant’s exception 4 is denied.
12. Defendant’s exception 5 is denied.
13. Defendant’s exception 6 is denied.
14. Defendant’s exception 7 is denied.
15. Defendant’s exception 8 is denied.
16. Defendant’s exception 9 is denied.
17. The court hereby adopts and incorporates herein all provisions of the proposed order of court as contained in the master’s report filed December 8, 2010.
18. The court retains jurisdiction to enforce this order and to effectuate justice between the parties.
19. The prothonotary shall properly serve notice of this order upon counsel of record for the parties.


source: Caselaw Access Project

author: FOX, J.,

license: Public Domain

text:
    Philadelphia Public School Notebook v. School District of Philadelphia

      David D. Lapp, for plaintiff.

      Kara H. Goodchild and Miles H. Shore, for defendant.
    March 2, 2011
   FOX, J.,

The Philadelphia Public School Notebook, (“Notebook”) appeals the Office of Open Record’s (“OOR”), decision of the January 20, 2010 whereby the OOR dismissed as moot Notebook’s appeal of the Philadelphia School District’s (“District”) denial of access to certain resolutions presented at the September 23, 2009 planning meeting of the School Reform Commission (“SRC”) which had been requested by the Notebook pursuant to Pennsylvania’s Right to Know Law (“RTKL”), 65 P.S. § 67.101 et seq. After reviewing briefs and hearing oral argument, this court grants the Notebook’s appeal and reverses the OOR.

FACTS AND PROCEDURAL HISTORY

The facts of this case are not in dispute. The Notebook is a non-profit news service devoted to reporting on the Philadelphia public schools. On October 7, 2009, Paul Socolar, editor of the Notebook, submitted a request for documents pursuant to the RTKL. Specifically, the request was for “copies of the following full resolutions that were presented to a quorum of the SRC at the September 23, 2009 commission meeting: A-16, A-17, A-18, A-19, B-14, [and] B-15.”

The SRC holds two regularly scheduled public meetings per month. The first is designated by the SRC as a “planning” meeting, and is held on the second week of every month. The “planning meeting” is defined by the SRC as a meeting at which no formal action is taken, but where individual commissioners review and deliberate on resolutions submitted by the school district in anticipation of taking a formal action at a later date. Roughly one to two weeks after the “planning” meeting, the SRC holds a “voting” meeting, at which formal action is taken by commissioners and resolutions voted upon. On September 23, 2009 the SRC held a monthly “planning” meeting attended by Paul Socolar. At this meeting, the district presented resolutions to the SRC “for review prior to formal action being taken.” Sometime between this “planning” meeting and the scheduled September 30th “voting” meeting, the district withdrew from consideration resolutions A-16, A-17, A-18, A-19, B-14, and B-15 (“Resolutions”). As a result, the resolutions were not voted on at the September 30, 2009 “voting” meeting.

On October 7, 2009, the Notebook filed its request under the RTKL. Two days later, on October 9, the district responded that the request required legal review and an answer would not be forthcoming until on or before November 9. Subsequently, the district reinstated the six proposals at issue, for passage at the SRC’s October 21 “voting” meeting. All six resolutions were duly passed. On November 4, 2009, the district denied the Notebook’s request via letter. The district took the position that full texts of the six resolutions from the September 23 “planning” meeting were “internal predecisional deliberations of an agency”; and were “draft[s] of a...resolution” and thus exempt from disclosure under the RTKL. (See district’s letter)

Notebook appealed the district’s denial to the OOR. The OOR denied Notebook’s appeal and found that since the text of the resolutions were ultimately passed at the October 21 “voting” meeting, Notebook had in fact received the information it sought and therefore its claim was now moot. Notebook appealed the OOR’s decision to this court.

DISCUSSION

As a preliminary matter this appeal presents two separate issues: 1) whether the district’s eventual disclosure of the text of the resolutions rendered Notebook’s appeal to the OOR moot, and, if not, 2) whether the RTKL required the district to disclose the full text of the six resolutions at issue as presented at the September 23 “planning” meeting.

I. Mootness

This matter is not moot because it falls under an exception to the mootness doctrine. Generally, moot cases are not justiciable in Pennsylvania. Pap’s AM. v. City of Erie, 571 Pa. 375, 388, 812 A.2d 591, 599 (Pa. 2002); Pa.R.A.P. 1972(4). An issue is moot when there is no longer an actual controversy between the parties sufficient to “affectf ] another in a concrete manner so as to provide a factual predicate for reasoned adjudication.” Mistich v. Pa. Bd. of Prob. and Parole, 863 A.2d 116, 119 (Pa. Commw. 2004). Here, the parties do not dispute that, once the district disclosed the full text of the six resolutions at issue, there was no longer a sufficient controversy. However, Pennsylvania recognizes an exception to the mootness doctrine when “the conduct complained of is capable of repetition yet likely to evade review.” Musheno v. Dep’t of Pub. Welfare, 829 A.2d 1228 (Pa. Commw. 2003). Following the analogous federal standard, Pennsylvania courts have held that an issue is “capable of repetition yet likely to evade review” when “(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration; and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.” Com. v. Buehl, 462 A.2d 1316, 1319 (Pa. Super. 1983) (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975). This is precisely the situation before this court.

The first element of the exception is met because of the manner in which the district and SRC conduct their meetings. Here, Notebook is seeking the full text of “planning” meeting resolutions. Since resolutions are generally proposed and considered at a “planning” meeting which precedes the “voting” meeting by one to two weeks, there is plainly not enough time to litigate the issue between the time resolutions are proposed and voted on. The district argues that since it is willing to disclose the text of the resolutions voted upon, and that the text is the same as the text considered at the planning meeting, Notebook can wait until the voting meeting to receive the resolutions. This court does not agree. It is unclear from the record whether the resolution texts as voted upon differ from the text of the resolutions submitted at the planning meeting. Further, in this case the resolutions were withdrawn between the “planning” meeting and “voting” meeting. Notebook’s sole purpose is to report to the public about the school district. Notebook’s purpose for requesting access to the text of the proposed resolutions submitted at planning meetings is to have them prior to the actual vote. The one or two week duration between the “planning meeting” and “voting meeting” is too short a duration for this issue to be litigated before its cessation. The first element of the exception is met. The second element of the mootness exception is met because there is a reasonable expectation that notebook will request the text of planning meeting resolutions in the future. While there are few Pennsylvania cases which explicitly discuss what constitutes a “reasonable expectation that the same complaining party [will] be subjected to the same action again,” analogous federal cases provide some guidance. Buehl, 462 A.2d at 1319 (looking to federal precedent when interpreting Pennsylvania mootness doctrine). In Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S.596 (1982), a newspaper challenged a court order excluding the press from a murder trial. The court order expired when the murder trial ended, and the controversy did not reach the court until roughly three years after the trial had ended. Id. While the active dispute between the parties ended with the trial, the court held that the case was justiciable because there was a reasonable expectation that the plaintiff, being a newspaper whose purpose it was to gather information for the public, would wish to attend a murder trial in the future and would be excluded therefrom. Id. at 603-604; see also Com. v. Genovese, 487 A.2d 364, 366 (Pa. Super. 1985) (finding a reasonable expectation that news media outlet would seek access to similar public information in the future). Similarly, it is reasonable to expect that Notebook, analogous to a media outlet, with its very purpose to gather information about the District and SRC proceedings, will again want access to the text of proposed resolutions prior to the voting meeting.

The district argues that there is no reasonable expectation that this issue will recur because it is “highly unlikely” that the district will again withdraw proposed resolutions after considering them at a planning meeting. This court disagrees. The gravamen of Notebook’s claim is that the district violated the RTKL by refusing to disclose the full text of resolutions proposed at SRC “planning” meetings. While the district’s subsequent withdrawal of those proposed resolutions may have provided the actual impetus for notebook to seek their disclosure, this is irrelevant to Notebook’s legal claim. Notebook might have any number of reasons to request the texts of the “planning” meeting resolutions rather than wait for the “voting” meeting. For example, it might request the “planning” meeting resolutions to ensure that they were the same or different from the “voting” meeting proposals; or to allow the public time to consider the actual proposed resolution before it is voted upon; or simply because they want to be able to timely publish resolutions considered by the SRC. In all cases the legal claim would be identical. The district’s withdrawal of the resolutions was not the circumstances for which there must be a reasonable expectation of recurrence. Notebook is reasonably likely to request the text of “planning” meeting resolutions in the future, and the short interval between “planning” meetings and “voting” meetings precludes full litigation of the issue. Notebook’s claim falls within an exception to the mootness doctrine.

II. RTKL Exemption

Notebook is entitled to the full text of resolutions proposed at SRC “planning” meetings because such resolutions are not “drafts” and therefore do not fall within the “predecisional deliberations” exemption in the RTKL. The RTKL requires that agencies like the district “provide public records.” 65 P.S. § 67.301. Exempted from the requirement are “draft[s] of a...resolution” and any “record which reflects...[t]he internal, predecisional deliberations between agency members.” 65 P.S. § 67.708(b)(9); 65 P.S. § 708(b)(10)(i)(A). There is an exception to this exemption however: predecisional deliberations are not exempt, if the record in question is “presented to a quorum for deliberation” pursuant to the Sunshine Act. 65 P.S. § 708(b)(10)(ii). The district argues that the resolutions considered at “planning” meetings are both “drafts” and “predecisional deliberations” and therefore exempt from the requirement to disclose. This court does not agree.

The resolutions at issue are not drafts within the meaning of 65 P.S. §67.708(b)(9), which are exempt from the RTKL and are defined as “the draft of a bill, resolution, regulation, statement of policy, management directive, ordinance or amendment thereto prepared by or for an agency.” Id. The district claims that because the resolutions were withdrawn from consideration prior to any formal action, the resolutions were drafts. The district claims that a document “subject to change or withdrawal” is a draft, and that a proposed resolution ceases to be a draft only when it is put up before the SRC for a final vote. This court does not agree. Most official documents go through some process of revision, and some documents — such as statutes — will always be susceptible of change or amendment. At some point however, any draft of an official document crosses a threshold and is no longer intended for “further or additional writing,” even though there is still some possibility that the document will still be changed or appended. In re Estate of Shelley, 950 A.2d 1021,1026 (Pa. Super. 2008). Here, the threshold is the point at which a resolution is proposed to the SRC at a “planning” meeting. It is at this point that the district, who is the originator of the resolutions, intends for the SRC to act on them. While the SRC may still alter the text of the resolutions before they are voted upon, the district has, by proposing them, indicated that it is satisfied with the form of the resolutions as drafted. Additionally, under the district’s argument, all documents hypothetically susceptible to alteration or emendation would be categorically exempt under the RTKL. Many kinds of documents, including minutes of meetings or reports, can be changed or amended at any time. The legislature clearly did not intend all of these type documents to be shielded from public view. For these reasons, the district’s claim must fail. The resolutions are not drafts under the RTKL.

The resolutions also do not fall under the “predecisional deliberations” exemption of the RTKL. The district argues simultaneously that the resolutions are part of “predecisional deliberations” exempt from the RTKL under 65 RS. § 708(b)(10)(i)(A); but also claims that they were not “presented to a quorum for deliberation” under 65 P.S. § 708(b)(10)(ii). This argument is unpersuasive. Even if this court accepts the district’s argument that the resolutions are predecisional deliberations under 65 P.S. § 708(b)(10)(i)(A), it is not in dispute that the resolutions at issue were submitted for consideration by the SRC at a public meeting held pursuant to the Sunshine Act. Therefore, the proposals would fall under the exception to the exemption under 65 P.S. § 708(b)(10)(ii).

The district tries to bolster its argument by urging that the word “deliberation”, has a different, more restrictive meaning when used in the “presented to a quorum for deliberation” exception to the exemption under 65 P.S. § 708(b)(10)(ii) than it does in the exemption. In support of this, the district cites case law which draws a distinction between “deliberations” and “informational discussions.” Sovich v. Shaughnessy, 705 A.2d 942, 945 (Pa. Commw. 1998). SRC “planning” meetings, the district argues, are mere “informational discussions” because no vote takes place at the conclusion of the meeting.

This court does not agree. While Pennsylvania courts have drawn this distinction when determining whether or not an agency can exclude the public from agency proceedings under the Sunshine Act, the question here involves interpretation of the word “deliberation” as used in the RTKL and not the Sunshine Act. There is no good reason to presume that the legislature, using the word “deliberation” twice within the same subsection of the same statute, intended that the word have a different meaning each time.

Even if this court were to accept that planning meetings were “deliberations” under 65 P.S. § 708(b)(10) (i)(A) but not necessarily “deliberations” under 65 P.S. § 708(b)(10)(ii), the district’s argument would still be unpersuasive. The OOR has held that only proceedings held for the purpose of making a decision are “deliberative” within the meaning of 65 P.S. § 708(b)(10)(ii). Smith v. Quakertown Cmty. Sch. Dist., No. AP 2009-0256 at 7-8 (May 4, 2009) (holding that a meeting is deliberative when it is “for the purpose of rendering a decision”). The district believes that, because no decision was made at the “planning” meeting, the “planning” meeting cannot have been “deliberative.” It seems apparent however, that although no vote was taken at the planning meeting, the SRC was considering resolutions “for the purpose of rendering a decision” at the subsequent “voting” meeting. The mere fact that the SRC “votes” at a different meeting than a meeting wherein it considers and discusses proposals is a procedural technicality, and it does not somehow transmute the “planning” meetings into the kind of informal discussion that the district claims are not “deliberative” under 65 P.S. §708(b)(10)(ii). The SRC’s bifurcated meeting structure is not a totem by which it can ward off the influence of the RTKL. The district’s argument must fail. Therefore, for the foregoing reasons, this court enters the following order.

ORDER

And now, March 2,2011, this court reverses the OOR’s decision of January 10, 2010.

      . There is no dispute over whether notebook is entitled to resolutions voted on at the “voting” meetings.


author: PANEPINTO, J.,

text:
    Howard v. SEPTA

      Jerry Lyons, for plaintiff.

      Joyce R. Deitch, for defendant.
    February 22, 2011
   PANEPINTO, J.,

This is an appeal from an order entered by this court on November 22, 2010, in which the court granted the motion for summary judgment filed by defendant SEPTA (“defendant”).

FACTUAL AND PROCEDURAL HISTORY

On August 4, 2009, the plaintiff John Howard (The plaintiff) commenced an action by complaint, alleging personal injuries sustained on August 27, 2007. At that time, the plaintiff alleged that he had been attempting to exit the R2 regional rail train at the Ridley Park SEPTA station. He was caused to fall when the defendant’s train conductor and/or driver and/or engineer failed to line up the steps from the train to the platform. The plaintiff alleged that the defendant’s negligence consisted of:

(a) failing to have the defendant’s train under proper and adequate control;
(b) positioning the train without due regard for the position and safety of the plaintiff;
(c) operating and positioning the train in a dangerous and unsafe manner;
(d) failing to stop the train so that the steps of the train would line up with the station platform;
(e) failing to align the train with the platform when defendant knew or should have known that in not doing so, the aforesaid accident would occur;
(f) being negligent and careless as a matter of law by operating, moving and stopping the train in a careless manner; and
(g) failing to see and have due regard for plaintiff, while operating, moving and functioning the train and/ or other parts thereof.
See complaint at paragraph 5.

On September 16, 2009, the defendant filed its answer with new matter. That responsive pleading asserted inter aliathe defense of sovereign immunity as a Commonwealth party, pursuant to Article 1, Section 11 of the Pennsylvania Constitution and 42 Pa.C.S. §8521 et seq.

After the close of pleadings and the conclusion of discovery, the defendant eventually filed a motion for summary judgment on August 31, 2010. Relying on the deposition testimony of the plaintiff, the defendant argued that the alleged facts failed to fall within the “motor vehicle” exception to immunity set forth in 42 Pa.C.S. §8522(b)(l).

The court granted the defendant’s motion for summary judgment. This appeal followed.

ALLEGATIONS OF ERROR

Pursuant to Pa.R.A.P. 1925(b), the appellant has filed a statement of matters complained of on appeal. This statement of matters is as follows:

1. The trial court erred in granting the defendant’s motion for summary judgment, because the defendant’s real estate had a defective condition which caused the plaintiff’s personal injury.
2. The trial court erred in granting the defendant’s motion for summary judgment, because the negligent act of the train engineer in operating the train while stopping cause personal injury to the plaintiff.

DISCUSSION

The defendant, SEPTA, is an agency of the Commonwealth of Pennsylvania. As a Commonwealth agency, the sovereign immunity statute, 42 Pa.C.S. §8522 et seq., applies to it. Feingold v. SEPTA, 512 Pa. 567, 578, 517 A.2d 1270,1275-76 (Pa. 1986). Under this statute, a Commonwealth party may only be held liable for negligence if it is shown that the acts of the agency fall within one of the nine narrow, enumerated exceptions to immunity as set forth in §8522(b).

Here, the only possibly applicable exceptions to immunity are the “vehicle” exception or the “real estate” exception:

(1) Vehicle liability. - The operation of any motor vehicle in the possession or control of a Commonwealth party.
[...]
(4) Commonwealth real estate, highways and sidewalks. - A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of a Commonwealth agency and Commonwealth-owned real property leased by a Commonwealth agency to private persons, and highways under the jurisdiction of a Commonwealth agency
[•••]•

Id.

First, it should be noted that the complaint failed to allege any defect in any Commonwealth real estate. To be sure, the plaintiff has not raised such issue prior to the filing of his 1925(b) statement of errors. Therefore, this court’s inquiry was limited to an analysis of 42 Pa.C.S. §8522(b)(l).

The Commonwealth Court has previously held that for a Commonwealth agency’s negligence to qualify under the vehicle liability exception, the negligence must be within the operation of the vehicle. The term “operation” as used in this exception has been interpreted as meaning that the vehicle must actually be in motion at the time of the incident and that the motion must be the cause of the plaintiff’s injury. Rubinstein v. SEPTA, 668 A.2d 283 (Pa. Commw. 1995). Alighting from or boarding a stopped vehicle is not within the motor vehicle exception, nor does the mere act of stopping resulting in a finding of “operation.” Id.

Plaintiff testified at his deposition that he had been a passenger on SEPTA’s R2 train and was exiting the train at the Ridley Park station when he stepped off the last step of the train and fell from the last step of the train onto the blacktop because the train was not lined up with the wooden platform, and therefore instead of stepping from the steps onto a wooden platform, he stepped onto the blacktop. See plaintiff’s deposition: def. motion for summary judgment at Ex. “C”, pp. 24-25. The plaintiff further testified that no one else exiting the train fell in a similar manner. Id. He testified that nothing about the blacktop itself caused his fall. Id. at p. 65. The train was at a complete stop, and the train doors were open and did not close on him. The train itself did not hit him, nor did any moving part of the train injure him in any way. Id. at pp. 24-28.

Based on the foregoing, this court determined that summary judgment in the defendant’s favor was appropriate as a matter of law, because the plaintiff was unable to establish that any of the exceptions to sovereign immunity applied under the facts alleged.

CONCLUSION

Accordingly, for the aforementioned reasons, this appeal should be denied.


author: FORD, J.,

text:
    FPM Development LLC. v. Borough of Coopersburg

      C.P. of Lehigh County,
    no. 2007-C-0468.

      Patrick J. Reilly, for plaintiff.

      Christopher W. Gittinger, for defendant Borough of Coopersburg.

      Frank G. Procyk, for defendant Coopersburg Municipal Authority.
    March 10, 2011
   FORD, J.,

Pa.R.A.P. 1925(a) OPINION

The plaintiff, FPM Development, LLC, has filed a notice of appeal from an order of this court filed December 15,2010. In that order, I sustained a statutory preliminary objection of the defendants, the Borough of Coopersburg (“Coopersburg”) and the Municipal Authority of the Borough of Coopersburg (“Coopersburg Authority”), to the plaintiff’s petition for appointment of a board of viewers and dismissed the petition. ■

In the petition, plaintiff claimed that certain actions of the defendants had made development of plaintiff’s property located in Coopersburg impossible. Plaintiff asserted that defendants’ actions amounted to a de facto taking for which plaintiff was entitled to compensation. As I explain in this opinion prepared pursuant to Pa.R.A.P. 1925(a), the actions of the defendants did not constitute a de facto taking. For this reason, I acted properly in sustaining defendants’ preliminary objection and dismissing the plaintiff’s petition.

PROCEDURAL HISTORY

On February 9, 2007, plaintiff filed the petition for appointment of a board of viewers pursuant to 26 Pa.C.S. § 502. In the petition, plaintiff averred that the defendants, through their actions, denied plaintiff all reasonable use of property it owns in Coopersburg, Lehigh County. On February 14, 2007, the Honorable J. Brian Johnson entered an order appointing a three-person board to review plaintiff’s claim of a de facto taking.

In March of 2007, both defendants filed preliminary obj ections to plaintiff’s petition for appointment of a board of viewers. On April 19, 2007, the plaintiff answered the preliminary objections. Through an order dated June 29, 2007, the Honorable Barry McAndrews vacated the court’s order of February 14, 2007, and disbanded the board of viewers pending resolution of the preliminary objections.

On August 24, 2010,1 conducted an argument on the defendants’ preliminary objections. The parties engaged in discovery to develop a factual record for the disposition of the preliminary objections. (Defendants attached to their supplemental brief in support of the preliminary objections a factual record which contained Exhibits A through Q. Plaintiff stipulated that Exhibits A through I constituted the factual record. However, plaintiff did not stipulate that Exhibits J through Q were part of the record. Thus, in addressing defendants’ preliminary objections, I considered only Exhibits A through I.)

On December 15, 2010,1 entered an order sustaining the defendants’ preliminary objection to plaintiff’s petition based on the argument that the defendants’ actions did not amount to a de facto taking of plaintiff’s property. (I dismissed all of the defendants’ other preliminary objections as moot.) Based on this ruling, I dismissed plaintiff’s petition.

On December 27,2010, plaintiff filed post-trial motions requesting that the court reverse its order of December 15, 2010.1 denied plaintiff’s post-trial motions by order filed on January 11, 2011.

On January 13, 2011, plaintiff filed the current notice of appeal to the Commonwealth Court. In the appeal, plaintiff challenges my December 15, 2010 order sustaining defendants’ preliminary objection and dismissing plaintiff’s petition for appointment of a board of viewers.

In response to an earlier order, plaintiff filed its “concise statement of matters complained of on appeal” (concise statement) under Pa.RA.P. 1925(b) on January 28, 2011.

FINDINGS OF FACT

From the evidentiary record stipulated to by the parties, I made the following findings of fact and relied on these findings in ruling on the defendants’ preliminary objections.

1. Plaintiff, FPM, is a Pennsylvania limited liability corporation with its address at 33 South Seventh Street, Allentown, Pennsylvania. Plaintiff is owned exclusively by Fred Derby, Patrick Reilly and Mark Ford.

2. Defendant Coopersburg is a Pennsylvania municipality with a mailing address of 5 North Main Street, Coopersburg, Pennsylvania.

3. Coopersburg Authority is a municipal authority established by defendant Coopersburg with a mailing address of 5 North Main Street, Coopersburg, Pennsylvania.

.4. Decades ago, Coopersburg created the Coopersburg Authority and granted that body responsibility for the building and construction of a sanitary sewer within the borough. Coopersburg Authority then constructed a sewer system in the borough.

5. Coopersburg leases the sewer system to Coopersburg Authority which is responsible for operating, maintaining and repairing the system.

6. Property owners within Coopersburg who wish to connect to the borough’s sewer system must submit a permit request to Coopersburg.

7. On October 15, 1970, Coopersburg and Coopersburg Authority entered an agreement with Upper Saucon Township (“Saucon Township”) and Upper Saucon Township Municipal Authority (“Saucon Authority”). Under the agreement, Saucon Township and Saucon Authority allowed Coopersburg and Coopersburg Authority to connect their sewer system to the Saucon sewer system. Saucon Township’s sewer system has a sewage collection component and a sewage transfer and disposal component. Under the agreement, sewage and waste collected in the Coopersburg sewer system was to be discharged into the Saucon Township sewer system for treatment and then disposal. The agreement set limits on the amount of sewer inflow from Coopersburg into Saucon Township’s sewer system during peak flow conditions.

8. On February 22, 1996, Saucon Authority imposed a moratorium on all new sewer connections within Coopersburg. Saucon Authority imposed the moratorium because the inflow from the Coopersburg sewer system into the Saucon sewer system regularly exceeded the maximum amount of inflow allowed under the 1970 agreement.

9. Under the terms of the 1970 agreement, Saucon Township sought arbitration to address its dispute with Coopersburg over the sewer inflow problem.

10. An arbitration panel comprised of Donald H. Lipson, Dennis E. Harman and Michael S. Moulds issued an award on May 8, 2003. The arbitrators’ award was confirmed by court order dated September 24, 2003, in Lehigh County case number 2003-C-2267. Under the arbitrators’ award, Coopersburg was required to use good faith and to take all appropriate steps to accelerate the elimination of excess infiltration and inflow from the Coopersburg sewer system into the Saucon sewer system. The award required that Coopersburg complete its remedial efforts by the end of 2004. This deadline was based on the arbitration testimony of William A. Erdman, a Coopersburg engineer. Mr. Erdman testified before the arbitration panel that the inflow and infiltration issues would be corrected by 2005.

11. In June of2003, shortly after the arbitrators ’ award, plaintiffpurchased an 8.5970 acre tractwithin Coopersburg with the intent to create a residential development at this site.

12. On June 11, 2002, prior to plaintiff’s purchase of the property, the previous owner of the property, McQuiddy Family Properties, Inc. (“McQuiddy”), obtained conditional final approval from Coopersburg to construct 27 single homes on the lot. Plaintiff intended to cany out this development on the property.

13. As part of the conditional final approval previously obtained by McQuiddy, plaintiff had to obtain permits from Coopersburg to connect the homes in the proposed development to the Coopersburg sewer system.

14. When plaintiff purchased the property in 2003, its three owners knew of the moratorium on sewer connections within Coopersburg. However, plaintiff’s owners were also aware of the arbitration award which required that repairs to the Coopersburg sewer system be completed by the end of2004. Based on this consideration, plaintiff’s owners believed that Saucon Township would remove the moratorium on sewer connections within Coopersburg by 2005. They intended to start construction of the development at that time.

15. Based on the estimates of its realtor, Jasper Torchia, plaintiff’s owners anticipated profits of 1.6 to 2.7 million dollars from sales of homes in the development.

16. Through July of 2009, Coopersburg spent approximately $800,000 in attempting to correct the inflow problem with its sewer system. For each of the past several years, these appropriations on repairs to the sewer system have accounted for 30 to 35 percent of Coopersburg’s annual budget.

17. In attempting to repair its sewer system, Coopersburg has submitted numerous Corrective Action Plans (“CAP”) to the Pennsylvania Department of Environmental Protection (“DEP”). The most recent CAP was submitted to the DEP on October 31, 2006. The DEP approved this CAP, but Saucon Township appealed the approval.

18. Since the entry of the arbitration award, Coopersburg and Coopersburg Authority have made good faith efforts to alleviate the excess infiltration and inflow from the Coopersburg sewer system into the Saucon sewer system. Specifically, defendants have repaired numerous main and lateral sewer lines and manholes within the sewer system. For an extensive itemization of repairs to the Coopersburg sewer system as of July 31, 2006, see Appendix 7B of the most recent Coopersburg CAP, which is attached to the deposition of Mr. Erdman (Exhibit E of defendants’ supplemental brief) as Erdman Exhibit No. 1.

19. In spite of their efforts, Coopersburg and Coopersburg Authority have been unsuccessful in eliminating the inflow problem with the Coopersburg sewer system. Thus, Saucon Authority has not yet removed the moratorium on sewer connections in Coopersburg.

20. Recently, Coopersburg and. Saucon Township entered an agreement which established deadlines for Coopersburg to complete the corrective measures set forth in the CAR The parties agreed that the necessary repairs to the Coopersburg sewer system should be completed by the occurrence of 10 significant storm events that produce peak flows in excess of 1.4 million gallons per day at Coopersburg’s metering station, or by December 20, 2011, whichever is later. This agreement does not address the question of when Saucon Township would lift the moratorium on Coopersburg sewer connections.

Pursuant to this agreement, Saucon Township withdrew its appeal of the DEP’s approval of Coopersburg’s most recent CAP.

21. Mr. Erdman, in his deposition, testified that he did not know when, if ever, Saucon Township will agree that the inflow and infiltration issues have been addressed to the point where there can be new connections to the Coopersburg sewer system.

DISCUSSION AND CONCLUSIONS OF LAW

In its concise statement, plaintiff contends that this court erred in concluding that the actions of defendants did not constitute a de facto taking of plaintiff’s real property. Specifically, plaintiff asserts that this court “inappropriately relied on Appeal of Jacobs, 423 A.2d 442 (Pa. Commw. 1980), in holding that the harm to [plaintiff] was not a result of the ‘purposeful and deliberate’ action of [defendants], but was instead akin to the shortcomings of the government entity in appeal of Jacobs.” Plaintiff further contends that this court erred in concluding that defendants made a good faith effort to abide by the terms of the arbitrators’ award and correct the water inflow problem in the Coopersburg sewer system. Finally, plaintiff argues that this court should have analyzed this case under the precedent of Greger v. Canton Township, 399 A.2d 138 (Pa. Commw. 1979).

Contrary to the contentions of the plaintiff, I properly analyzed this case under the binding precedent of Appeal of Jacobs. Further, all of my factual determinations are rooted in evidence found in the record as stipulated to by the parties.

Plaintiff, in its petition for appointment of a board of viewers, claimed that the actions of Coopersburg and Coopersburg Authority, in failing to correct the inflow problem, made development of plaintiff’s property impossible and amounted to a de facto taking. In paragraphs 11 through 14 of the petition, plaintiff specifically described the actions of defendants which allegedly led to the de facto taking:

11. The borough has failed to comply .with the decision and award of [the] arbitrators and the Coopersburg Sewer System remains non-operational.
12. The borough has failed to act diligently and in good faith to resolve the issues which cause the moratorium to remain in effect, by delaying, stalling and failing to undertake the work required to repair the Coopersburg Sewer System.
13. The Borough’s failure to remedy and make operational the Coopersburg Sewer System is unduly oppressive to [plaintiff], and forces it to bear a public burden which in all fairness and justice should be borne by the Borough as a whole. Such inaction by the Borough has had a significant impact on [plaintiff], and has interfered with its distinct investment-backed expectations.
14. As a direct and proximate result of the failure of the Borough to remedy and make operational the Coopersburg Sewer System, and thereby eliminate the moratorium on [sewer connections] in the Borough, and because the Borough does not permit on site septic systems, [plaintiff] has been deprived of all economically beneficial uses of its land. All of the damages sustained by [plaintiff] were due to the direct failure of the Borough to remedy and make the Coopersburg Sewer System operational.

A court may not dismiss preliminary objections to a petition for appointment of a board of viewers that alleges a de facto taking without first conducting an evidentiary hearing to determine whether a de facto taking has occurred. See Nether Providence Township v. Jacobs, 297 A.2d 550 (Pa.Commw. 1972). I read and used the stipulated factual record to decide if the actions of the defendants constitute a de facto taking of plaintiff’s property.

According to 26 Pa.C.S. § 502, a de facto taking occurs when the actions of any entity clothed with the power of eminent domain substantially deprive an owner of the use and enjoyment of his property. Lehigh-Northampton Airport Authority v. WBF Associates, L.P., 728 A.2d 981, 985 (Pa.Commw. 1999). A de facto taking occurs only where a governmental entity “either exercise[s] legislative or regulatory powers or engage [s] in activities that anticipate^ the acquisition or destruction of property for a public purpose.” Moore v. Department of Environmental Resources, 660 A.2d 677, 682 (Pa.Commw. 1995). There is no bright line test to determine when government action results in a de facto taking. Instead, each case must be examined and decided on its own facts. Id. at 680.

Where a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex of factors including the regulation’s economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action.... These inquiries are informed by the purpose of the takings clause, which is to prevent the government from “forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” (Citations omitted.) Nolen v. Newtown Township, 854 A.2d 705, 708 (Pa.Commw. 2004) (citing Palazzolo v. Rhode Island, 533 U.S. 606, 617-18 (2001)).

Whendeterminingwhetheradefactotakinghas occurred, a court must focus on the nature of the government action in question. Appeal of Jacobs, 423 A.2d 442, 443 (Pa. Commw. 1980). In Pennsylvania, courts are more likely to find a taking where the government action complained of is “purposeful and deliberate.” Id. Conversely, courts decline to find a taking where the harm to the property owner stems not from deliberate government action, but from negligence or shortcomings on the part of the government actor. For instance, in Appeal of Jacobs, the Commonwealth Court held that no de facto taking occurred when a property owner experienced flooding due to a township’s unlawfully issuing building permits, improperly approving a subdivision and wrongfully contributing to the design of a drainage plan. Id. In explaining its holding, the Commonwealth Court observed that the government actions in question “were in no way related or incidental to the Township’s condemnation power.” Id. at 443-44.

In the case at hand, the actions of defendants which plaintiff contends caused a de facto taking were not “purposeful and deliberate.” They were akin to the shortcomings of the government entity in Appeal of Jacobs. Here, defendants made good faith efforts to abide by the terms of the arbitration award and correct the water inflow problem with the Coopersburg sewer system. In attempting to address the problem, defendants submitted numerous CAPs to the DEP. Defendants also made repairs to many main and lateral sewer lines and manholes within the Coopersburg sewer system. Defendants spent approximately $800,000 on these corrective measures through July of 2009. Unfortunately, none of these efforts has alleviated the inflow problem so the moratorium on sewer connections in Coopersburg remains in place.

The moratorium harms plaintiff by preventing it from developing its land in Coopersburg. However, plaintiff’s harm did not result from any intentional act by defendants, such as the enactment of a new ordinance or the commencement of a new government project. On the contrary, plaintiff’s harm is an unintended consequence of defendants’ inability to adequately repair the Coopersburg sewer system despite its efforts. The defendants’ predicament is not related or incidental to its condemnation power. Under Appeal of Jacobs, the nature of the defendants’ actions prohibits a finding that a de facto taking of plaintiff’s property occurred.

I now briefly address plaintiff’s contention that this court erred by not analyzing this case under the precedent of Greger v. Canton Township, 399 A.2d at 138. In Greger, Canton Township proactively designed and constructed an ineffective drainage system that led to flooding on the property of the party claiming a de facto taking. Among other things, “Township Authorities actually dug or opened ditches to channel sewage effluent from adjoining properties...onto [the claimant’s] real estate.” Id. at 140. In the case at hand, defendants did not deliberately and proactively create a defective drainage plan. Instead, the defendants failed to adequately repair an already existing sewer system. Because the facts of the case at hand more closely resemble those of Appeal of Jacobs, this court acted properly in analyzing plaintiff’s claim for a de facto taking under that jurisprudence.

In sum, because defendants’ actions did not constitute a de facto taking of plaintiff’s property, I properly sustained the preliminary objection raising this issue and dismissed plaintiff’s petition for appointment of a board of viewers. Thus, plaintiff’s appeal should be dismissed.