author: ZULICK, /.,

text:
    Pocono Community Theater v. Monroe County Board of Assessment Appeals

      C.P. of Monroe County,
    No. 2530 CV 2014

      Mark Primrose, for petitioner.

      Jeffrey A. Durney, for respondent.

      Dec. 31, 2014
   ZULICK, /.,

The petition for review of a decision of the Monroe County Board of Assessment Appeals (Board) filed by Petitioner Pocono Community Theater (PCT) on April 2, 2014 is presently before the court. The board denied PCT’s application for exemption from payment of real estate taxes pursuant to 72 P.S. §5453.202. A status conference was held with counsel on May 22, 2014, and a discovery schedule was established. A hearing on the merits was held on September 30, 2014. Both parties appeared for the hearing and PCT presented testimony. A transcript of the notes of testimony was prepared and filed.

FINDINGS OF FACT

1. The property which is the subject of this appeal is a movie theater located at 88 South Courtland Street, East Stroudsburg, Pennsylvania. Petitioner’s Exhibit 2. PCT screens studio, independent and/or art house films nearly every day, and also hosts and supports a variety of community events. NT 17, Petitioner’s Exhibit 12.

2. The bylaws of PCT state “the purposes for which this non-profit corporation is organized is to provide independent and art films offering a unique cinematic experience that enlivens the human spirit and promotes learning; while promoting local visual artists on the stage and in exhibition.” Petitioner’s Exhibit 13.

3. PCT obtained title to the property on October 31, 2012. Petitioner’s Exhibit 5.

4. PCT has one full-time employee, Courtney Tolino, who is the theater’s general manager. NT 77.

5.PCT is managed by an unpaid board of directors. NT 79.

6. PCT’s application for exemption of real estate taxes states:

“(f)or 13 years prior, the theater was a for profit theater that established the market. Since 2008, PCT has been a non-profit that promotes the arts through independent art house and foreign films, live performances, and displaying local artists’ work in the gallery. PCT also has educational outreach programs. The proceeds from the theater cover expenses. Additional funds are used for education and cultural programming to benefit the community. PCT operates through limited part-time staff, one full-time staff member, and volunteer support, including the PCT board of directors.” Petitioner’s Exhibit 2.

7. PCT hosts and supports a number of community programs and events, donating marketing, theater space, and occasional educational programs. See Petitioner’s Exhibit 12; NT at 9. Their ongoing events include artist receptions, lectures and programs for members, community organizations and students. Petitioner’s Exhibit 12.

8. In fiscal year ending June 30, 2010, PCT’s total revenue was $481,110 (fundraising and contributions: $119,807; ticket sales: $309,573; memberships: $51,730). Total expenses were $431,905 and net revenue was $49,205. Total assets were $83,093, total liabilities were $37,193, and net assets were $45,900. Petitioner’s Exhibit 8.

9. In fiscal year ending June 30, 2011 total revenue was $472,065 (fundraising and contributions: $22,708; ticket sales: $395,080; memberships: $47,087; artists’ fees: $616; other: $6,566; investment income: $8). Total expenses were $500,072 and net revenue was ($28,007). Total assets were $48,801, total liabilities were $30,908, and net assets were $17,893. Petitioner’s Exhibit 8.

10. In fiscal year ending June 30,2012 total revenue was $565,740 (fundraising and contributions: $167,601; ticket sales: $268,487; memberships: $45,602; artists’ fees: $75; café: $80,828; theater rental: $3,137; investment income: $10.). Total expenses were $488,107 and net revenue was $77,633. Total assets were $135,215, total liabilities were $39,685, and net assets were $95,530. Petitioner’s Exhibit 9.

11. In fiscal year ending 2013, total revenue was $576,129 (fundraising and contributions: $263,989; ticket sales: $200,409; memberships: $43,140; artists’ fees: $237; other: $68,322; investment income: $32). Total expenses were $474,933 and net revenue was $101,196. Total assets were $637,158, total liabilities were $443,603, and net assets were $193,555. Petitioner’s Exhibit 10.

12. Courtney Tolino, PCT manager, testified that PCT makes donations to non-profits and in kind donations. NT 83. PCT made no in kind contributions in fiscal year ending June 30, 2010; in fiscal year ending 2011, 1.4% of expenses were in-kind donations. In fiscal year ending 2012, 2% of expenses were in-kind donations. In fiscal year ending 2013, 1.8% of expenses were in-kind donations. See Petitioner’s Exhibits, 8-10,12. In the 2013-14 fiscal year, PCT donated $2,455 to other non-profits and made $28,030 in-kind donations. Petitioner’s Exhibit 15. Ms. Tolino calculated that PCT volunteers contributed $140,000 worth of their time to PCT in the 2013/2014 fiscal year. Petitioner’s Exhibit 15.

13. PCT used grant funds to teach children from the YMCA writing skills. NT 13-14.

14. Mr. Scheetz testified that “ticket sales do not operate the theater. It’s the members that keep the theater open for various reasons, and the membership has grown and their interests because of all the programs we’re doing, including the performance on the stage, the plays, the book readings and so forth that we do. That’s what really attracts more and more members.” NT 26-27.

15. PCT is able to screen educational films that East Stroudsburg University is unable to legally screen due to copyright and licensing issues. NT 41.

16. PCT occasionally admits patrons who cannot afford the admission price, but it has no written policy addressing free or discounted admission, and no records of such admissions are kept. PCT’s studio contracts require PCT to pay the studios a percentage of the admission price for each person watching a film, so PCT must pay for patrons admitted free of charge. The PCT newsletter directs patrons to call Mr. Scheetz if they do not have means to pay, and decisions on discounts are made on an ad hoc basis. NT 49-50. PCT employees on occasion serve food in the café to people who cannot afford it. Id. Again, no written policy exists and no records are kept

17. Deborah Boyle, a certified public accountant who has prepared PCT’s tax returns, stated at trial concerning PCT’s net operating income, “honestly, it looks really swell, but it’s not — it’s paper. It’s numbers. It’s not cash...They are not operating on a cash basis.” Id. at 72. She further stated that PCT is operating at break even, including contributed monies. Id. at 73.

18. PCT is registered as a charitable organization with the Department of State’s Bureau of Charitable Organizations under the solicitation of funds for charitable purposes act, 10 P.S. §162.1 et seq. Petitioner’s Exhibit 6.

19. PCT is exempt from federal income tax as a public charity, pursuant to 26 U.S.C. §501(c)(3). Petitioner’s Exhibits 8, 9, 10.

20. PCT regularly presents community events. Most of these events are providing entertainment to members and the public or programs for non-profit groups. Many times the non-profit groups use the screening of a film for fundraising purposes. Petitioner’s Exhibit 12.

DISCUSSION

PCT seeks tax exempt status in this assessment appeal. The board ruled on April 2, 2014 that PCT did not qualify as a “purely public charity” and thus was not entitled to exemption from real estate taxes pursuant to 53 Pa.C.S. §8812(3). At the hearing held on September 30, 2014, Skip Scheetz, the president of PCT’s board of directors; Deborah Boyle, a certified public accountant; and Courtney Tolino, PCT’s only full-time employee, testified on behalf of PCT, and PCT introduced various records, letters, and tax returns. Petitioner’s Exhibits 1-17. The Board produced no evidence, but argued that PCT did not qualify as a charity under the Pennsylvania Constitution.

An institution seeking a real estate tax exemption bears a heavy burden of establishing its entitlement to such an exemption. Church of the Overcomer v. Delaware County Board of Assessment Appeals, 18 A.3d 386, 391 (Pa. Cmwlth.2011). A property owner’s entitlement to a tax exemption is a mixed question of law and fact. Id. at 388-89 n. 1.

For real estate tax exemption as a purely public charity, the petitioner must first meet the five-part test detailed in Hospital Utilization Project v. Com., 487 A.2d 1306 (Pa. 1985)(hereinafter HUP) in order to qualify under the Pennsylvania Constitution. An entity must possess all of the following characteristics:

(a) Advances a charitable purpose;
(b) Donates or renders gratuitously a substantial portion of its services;
(c) Benefits a substantial and indefinite class of persons who are legitimate subjects of charity;
(d) Relieves the government of some of its burden; and
(e) Operates entirely free from private profit motive.

Hospital Utilization Project, 487 A.2d at 1317.

If an entity meets the HUP test and qualifies as a purely public charity under the Pennsylvania Constitution, then it must also meet the statutory definition enumerated in the institutions of purely public charity act. 10P.S. §375 (Act 55). The “prior jurisprudence [In HUP] sets the constitutional minimum for exemption from taxes; the legislation may codify what is intended to be exempted, but it cannot lessen the constitutional minimums by broadening the definition of ‘purely public charity’ in the statute.” Mesivtah Eitz Chaim of Bobov, Inc. v. Pike County Board of Assessment Appeals, 44 A.3d 3, 5 (Pa. 2012).

The public charity act includes standards similar to the HUP test, including requiring the entity to meet the criteria of advancing a charitable purpose, operating entirely free from private profit motive, donating a substantial portion of its services, benefiting a substantial and indefinite class of persons who are legitimate subjects of charity, and relieving the government of some burden. 10P.S. §375(b)-(f). However, unlike the HUP test, the statute includes specific sub-criteria under each categoiy with which the entity must comply. If the entity fails to meet any one of the criteria, the entity will not be tax exempt as a purely public charity. Guthrie Clinic, Ltd. v. Sullivan Cnty. Bd. of Assessment Appeals, 898 A.2d 1194 (Pa. Cmwlth. 2006). Finally, an entity’s status as a charity or non-profit for federal income tax purposes does not have any effect on the analysis under state law. Hospital Utilization Project, 487 A.2d at 1316.

PCT presents independent, foreign, art house and studio films at its theater, and the theater is open year round. PCT contends here however that it is not a commercial movie theater. Rather, it argues that it is a purely public charity entitled to a tax exemption for real estate taxes under 53 Pa.C.S.A. §8812(3). To begin this discussion, the evidence established that PCT’s main business offering to the community is as a movie theater. As Deborah Boyle candidly testified:

Q: (Mr. Dumey) Would the theater be able to continue to operating without showing movies?
A: (Ms. Boyle) Well, I mean — you know, let’s get basic here. It’s a theater. I mean, that’s what it does. It runs movies. It wouldn’t be that if it didn’t run movies. Do you see what I’m saying?
I mean to say it runs without the movies, no, but you know, I think if you are asking the question, could they actually get grants and stuff, take away the movies, get grants to do what they are doing and just be a theater? Probably not. I mean, I think, you know, to some extent, the way they are able to do for the community what they do is because they make a buck with the memberships and at the box office. NT 75-76.

However, PCT also uses its facilities for films and events benefitting area non-profits, governmental and educational institutions. Skip Scheetz, president of PCT’s board, testified that PCT offers its facilities to the Pocono Medical Center for programs to the public on medical subjects, such as depression and diabetes. NT 14, 16, 44. PCT used a grant from Best Buy to host a YMCA latchkey program where children were taught how to write screenplays and use clip art. NT 13-14. The Stroudsburg Area Regional Police Department has presented a film on drug abuse and alcoholism NT 9. Classes from the East Stroudsburg and the Stroudsburg Area School Districts and East Stroudsburg University have presented film programs. NT 10. PCT hosts the Gay Straight Alliance group from Stroudsburg High School once per month, NT 10 and PCT provides a movie at no cost to the students.

Petitioner’s Exhibit 12 described community events that have been held at the PCT since 2010. Many of these events involved the screening of films by community organizations. In 2010, there were 19 events held. These included lectures, documentary screenings and panel discussions, an evening with Bob Dorough, book readings, film festivals, Pocono Animal Rescue’s fundraising benefit, and poetry readings. One event involved an educational purpose, the Silence Not, A Love Story production by the ESU Theater Department. Petitioner’s Exhibit 12.

In 2011, there were 16 community events held. These included film premieres and festivals, poetry slam fests, lectures, documentaries and local films. Three of these events involved an educational purpose. One was the East Stroudsburg South’s Performance Club presenting a program on teen identity; another was a fundraiser for East Stroudsburg South students and an anti-bullying seminar presented by the Department of Education. Id.

In 2012, there were nine community events. These included film premieres, a benefit show for the American Cancer Society, film festivals, a benefit for the Stroudsburg Little League, an AA documentary, and a fundraiser for the International Brotherhood of Magicians. One of these events involved an educational purpose, a film and panel discussion on bullying open to students and teachers.

In 2013, there were 27 community events. These included film premieres, documentaries, film festivals, live performances, poetry slamfests and an AA documentary. Of these seven were educational or charitable in nature. They included a two days of YMCA film camp, a concert benefitting the East Stroudsburg Methodist Church, a Northampton County Community College screening of “The Great Gatsby,” the same screening for East Stroudsburg High School students, a Lyme disease symposium, and a Pocono Medical Center screening of “Silver Linings Playbook” as part of its Depression Awareness week. Id.

In 2014, there were 28 community events. These included music festival events, documentaries, film festivals, a League of Women Voters discussion following a film on fracking, a Patti Lupone concert, a script reading, a book signing, live performances, and book readings. Of these, five were educational or charitable in nature. These included two films sponsored by the ESU English and Writing Studio, “Robin and Marian”, and “The Hunchback of Notre Dame”; a documentary, “Why We Ride” benefitting the animal league, a screening of an Asian film by an ESU history class, a performance by local high school students of numbers from “Carousel”, a screening of a documentary “Coming Clean” hosted by the Stroud Area Regional Police Department. Id.

As can be seen from the review of PCT’s community event offerings over the past four years, most of them involve entertainment events that have a laudable purpose for the community, but are not in and of themselves charitable or educational events.

Amongst these offerings, PCT does meet the first prong of the HUP test. It is advancing a charitable purpose, although that is clearly secondary to its business as a movie theater. Besides its movie business, PCT presents primarily the entertainment offerings of community groups who use the facility for presentations or fundraising. Because some of these offerings benefit area non-profit groups and high school and college classes, it is assisting groups which are the subject of charity.

PCT also meets the second prong of the HUP test in that its efforts benefit a substantial and indefinite class of persons who are legitimate subjects of charity. The programs offered by PCT at reduced cost to area educational and non-profit institutions.

PCT’s business is entirely free from the profit motive. The testimony in this case described a committed group of volunteers that devotes many unpaid hours to maintaining PCT’s offerings to their community. The income from business operations is not sufficient to keep the doors of the movie theater open, and the board has had to rely on donations from members and grants to keep the theater functioning. If profit were the motive, volunteers, member donations, grants and contributions would be non-existent. PCT meets the fifth prong of the HUP test.

Where PCT has failed to meet its burden of proof is in the fourth element of the HUP, in that it does not relieve the government of some of its burden. PCT relies upon the supreme court’s decision in Unionville-Chadds Ford School District v. Chester County Board of Assessment Appeals, 714 A.2d 397 (Pa. 1998) for support. There the supreme court upheld the tax exemption of Longwood Gardens. The court’s holding was later explained by the superior court as follows:

[UJnionville-Chadds Ford concerned Longwood Gardens, a world-renowned public garden, which includes an arboretum, conservatory and greenhouse complex, architectural displays, water gardens, fountains, an open air theater, meadow and forest land, wildlife habitats, walking trails, picnic areas and a variety of educational and research facilities. 552 Pa. at 215, 714 A.2d at 398. Longwood Gardens hosts hundreds of performing arts events a year, conducts workshops and lectures and has donated $2 million dollars to the surrounding community for local road improvement and additional money to schools and the local fire and rescue squads. In Unionville-Chadds Ford, our Supreme Court found that although the government did not have a constitutional or statutory obligation to provide public gardens, this is not determinative as to whether an entity relieves the government of some of its burden. 552 Pa. at 220, 714 A.2d at 401. Our Supreme Court concluded that:
the government has long provided support for public parks and recreation areas as well as for cultural institutions, including museums, libraries, etc. Longwood’s public park and cultural facilities fall clearly within the scope of burdens that are routinely shouldered by government. Hence, this element of the HUP test was properly found to be met.

Camp Hachshara Moshava of New York v. Wayne County Bd. for Assessment and Revision of Taxes, 47 A.3d 1271, 1278 (Pa. Cmwlth. 2012).

As has been stated, the Unionville-Chadds Ford case does support the “charitable purpose” and “relieving the government of a burden” aspects of PCT’s case to the extent that it is providing charity or an educational benefit. However, the HUP decision places the burden on PCT to show that it is donating a substantial portion of its services to its charitable undertakings. The testimony and exhibits clearly showed that the bulk of PCT’s services is screening movies to the public for an admission fee and allowing community groups to present films and programs for entertainment or fundraising purposes.

The board argues that PCT’s activities do not relieve the government of a burden, because there is no obligation on the part of the government to show films or provide film camps. See Camp Hachshara Moshava of New York v. Wayne County Board, 47 A.3d 1271, (Pa. Cmwlth. 2012), appeal denied, 69 A.3d 603 (Pa. 2013). The board is correct as far as PCT’s entertainment offerings are concerned, which is the bulk of its programs. Although PCT has provided educational programs for high school students, ESU students, the Stroud Area Regional Police Department and the Pocono Medical Center, these programs are not a significant portion of PCT’s efforts. Clearly, PCT focuses first on its movie theater business and secondly on the use of films and its theaters for general use by non-profit community groups. Supporting local non-profit groups is an honorable undertaking, but it is not relieving the government of its burden in a significant way. The government has no obligation to present entertainment, and it likewise has no obligation to support non-profit fundraising.

Whether PCT donates a substantial portion of its services to relieving the government’s burden is based upon “the totality of circumstances surrounding the organization: and the word ‘substantial’ does not imply a magical percentage.” HUP at 1316.fn. 9. However, here PCT has failed to meet its burden of proof. There simply are not enough charitable or educational offerings to support a granting of an exemption under the HUP test.

PCT likewise does not qualify for an exemption under the statute. First, in order to be free from private profit motive, the entity must adopt “as part of its articles of incorporation or, if unincorporated other governing legal documents a provision that expressly prohibits the use of any surplus funds for private inurement to any person in the event of a sale or dissolution of the institution of purely public charity.” 10 P.S. §375(c)(4). As PCT did not include its Articles of Incorporation among its exhibits, this is impossible to determine. Second, PCT does not meet section (d) Community service:

(a) Community service. —
(1) The institution must donate or render gratuitously a substantial portion of its services. This criterion is satisfied if the institution benefits the community by actually providing any one of the following:
i. Goods or services to all who seek them without regard to their ability to pay for what they receive if all of the following apply:
1. (A) The institution has a written policy to this effect.
2. (B) The institution has published this policy in a reasonable manner.
3. (C) The institution provides uncompensated goods or services at least equal to 75% of the institution’s net operating income but not less than 3% of the institution’s total operating expenses.
ii. Goods or services for fees that are based upon the recipient’s ability to pay for them if all of the following apply:
1. (A) The institution can demonstrate that it has implemented a written policy and a written schedule of fees based on individual or family income. An institution will meet the requirement of this clause if the institution consistently applies a formula to all individuals requesting consideration of reduced fees which is in part based on individual or family income.
2. (B) At least 20% of the individuals receiving goods or services from the institution pay no fee or a fee which is lower than the cost of the goods or services provided by the institution.
3. (C) At least 10% of the individuals receiving goods or services from the institution receive a reduction in fees of at least 10% of the cost of the goods or services provided to them.
4. (D) No individuals receiving goods or services from the institution pay a fee which is equal to or greater than the cost of the goods or services provided to them, or the goods or services provided to them, or the goods or services provided to the individuals described in clause (B) are comparable in quality and quantity to the goods or services provided to those individuals who pay a fee which is equal to or greater than the cost of the goods or services provided to them.
iii. Wholly gratuitous goods or services to at least 5% of those receiving similar goods or services from the institution.
iv. Financial assistance or uncompensated goods or services to at least 20% of those receiving similar goods or services from the institution if at least 10% of the individuals receiving goods or services from the institution either paid no fees or fees which were 90% or less of the cost of the goods or services provided to them, after consideration of any financial assistance provided to them by the institution.
v. Uncompensated goods or services which in the aggregate are equal to at least 5% of the institution’s costs of providing goods or services.
vi. Goods or services at no fee or reduced fees to government agencies or goods or services to individuals eligible for government programs if any one of the following applies:
1. (A) The institution receives 75% or more of its gross operating revenue from grants or fee-for-service payments by government agencies and if the aggregate amount of fee-for-service payments from government agencies does not exceed 95% of the institution’s costs of providing goods or services to the individuals for whom the fee-for-services payments are made.
2. (B) The institution provides goods or services to individuals with mental retardation, to individuals who need mental health services, to members of an individual’s family or guardian in support of such goods or services or to individuals who are dependent, neglected or delinquent children, as long as the institution performs duties that would otherwise by the responsibility of government and the institution is restricted in its ability to retain revenue over expenses or voluntary contributions by any one of the following statutes or regulations or by contractual limitations with county children and youth offices in this Commonwealth:...
vii. Fundraising on behalf of or grants to an institution of purely public charity, an entity similarly recognized by another state or foreign jurisdiction, a qualifying religious organization or a government agency and actual contribution of a substantial portion of the funds raised or contributions received to an institution of purely public charity, an entity similarly recognized by another state or foreign jurisdiction, a qualifying religious organization or a government agency.

10 P.S. §375(d).

PCT has not donated or rendered gratuitously a substantial portion of its services. It has no written policy pursuant to §375(d)(l)(i) and (ii), and, because its in-kind donations of services amount to between 1% and 2%, it does not meet §375(d)(l)(v).

The board was warranted in refusing to grant tax exemption status to PCT.

ORDER

And now, this 31st day of December, 2014, following a hearing on the merits, it is ordered that the appeal from the decision of the Monroe County Board of Assessment filed by Pocono Community Theater is denied.

      . Article 8, section 2(a)(v) of the Pennsylvania Constitution states, “[t]he general assembly may by law exempt from taxation...[institutions of purely public charity, but in the case of any real property tax exemption only that portion of real property of such institution which is actually and regularly used for the purposes of the institution.”


source: Caselaw Access Project

author: STEINBERG, J.,

license: Public Domain

text:
    Commonwealth v. Lagreca

      C.P. of Lehigh County,
    Nos. CR-2243-2014; 3164 EDA 2014

      Heather Gallagher, for Commonwealth.

      Michael Brunrtabend, for appellant.
    Jan. 8, 2015
   STEINBERG, J.,

On October 16, 2014, after a trial without jury, the appellant, Jerome Lagreca, was found guilty of harassment. He was sentenced the same date to pay the costs of prosecution and pay a fine in the sum of one hundred ($100) dollars. The testimony at the non-jury trial revealed that the appellant contacted ManorCare, a nursing home/rehabilitation facility where his parents were receiving care, and threatened a nurse’s aide who spoke with him.

A notice of appeal was filed on November 14, 2014. Pursuant to this court’s Pa.R.A.P. 1925(b) directive, counsel filed a timely “concise statement of matters complained on appeal” (hereinafter concise statement) on December 24, 2014. It is alleged that the evidence was “insufficient to support the verdict and/or the verdict was against the weight of the evidence” to support the harassment verdict. It is also alleged that it was error to permit Jenayra Quinones, the nurse’s aide, to refresh her recollection with the written statement she provided to Officer Keith Fryslin of the Bethlehem Police Department.

Background

On April 19, 2014, Jenayra Quinones was working as a nurse’s aide at HCR ManorCare on Westgate Drive in Bethlehem. She was working the 7:00 a.m. to 3:00 p.m. shift, and shortly after lunchtime she was collecting trays. While doing so, she went to check on Mary Lagreca, the appellant’s mother, because the “light” to her room was illuminated, which indicated a request for assistance. When Ms. Quinones entered the room, which was occupied by both of appellant’s parents, Mrs. Lagreca asked her to speak with the appellant who was on the phone.

Mrs. Lagreca told Ms. Quinones that her son was upset, and wanted to speak to someone about his parents’ care. When Ms. Quinones answered the phone, the appellant identified himself, and went into a thirty (30) to forty-five (45) minute tirade about his parents’ care and highlighted his displeasure with their care by using expletives. He also angrily explained that if the staff did not do their job correctly that “he would come in there and raise hell and show us how to do our job physically...he would physically push us in the room and show us how to do our care.” In a further effort to emphasize whatever point he was trying to make about his intentions, the appellant, at least three times, mentioned a shooting in Allentown. Ms. Quinones explained that the defendant was speaking about “violent stuff,” and also stated that he would come to the facility and “raise hell.” The appellant’s rant took a more serious turn when he mentioned “shooting up [or] in the place.” He also spoke about harming someone in the facility with a “gun.” The appellant’s latter comments upset Ms. Quinones, and she reported it to her supervisor and later to Officer Fryslin.

Officer Fryslin responded to the ManorCare that afternoon and spoke with the floor supervisor, Ms. Shea. He then spoke with Ms. Quinones, and asked her to provide a written statement about the appellant’s alarming statements. Later that afternoon, the appellant responded to the Bethlehem Police Department at Officer Fryslin’s request. The appellant acknowledged making the phone call, but initially said he was speaking to his mother, and Ms. Quinones may have overheard his conversation. When Officer Fryslin told him that his mother confirmed that she handed the phone to Ms. Quinones, he admitted that he spoke to Ms. Quinones about his parents’ treatment. He denied making threats, and provided a somewhat lame explanation about the shooting in Allentown. Specifically, that people get shot over money, but that “he’s not that type of person.”

The appellant, who was 53 at the time of trial, resided with his parents until their admission to ManorCare. Both parents, who were in their eighties, were admitted to that facility in April, 2014 for rehabilitation services. The appellant was not satisfied with the quality of their care.

The appellant testified that on April 19, 2014, he attempted to call his parents, but initially was unsuccessful. He then attempted to reach the front office on three occasions to check on his parents’ welfare. He testified that he eventually spoke to his mother and Ms. Quinones, but provided a completely different version of their conversation. He denied ever threatening to shoot-up or bring a gun to ManorCare. He also estimated the entire conversation as lasting no more than “three, four minutes.”

Discussion

A. Sufficiency and Weight of the Evidence

Challenges to the sufficiency and the weight of the evidence are distinct legal concepts. Commonwealth v. Davis, 799 A.2d 860, 864 (Pa. Super. 2002). A claim challenging the sufficiency of the evidence requires all the evidence admitted at trial to be viewed in the light most favorable to the verdict winner, who is also entitled to all reasonable inferences in its favor. Commonwealth v. Burkett, 830 A.2d 1034, 1037 (Pa. Super. 2003). In doing so, there must be “sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt.” Commonwealth v. Palo, 24 A.3d 1050, 1054 (Pa. Super. 2011) quoting Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007). However, the application of this test does not permit the evidence to be weighed nor is the judgment of the fact-finder substituted. “Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.” Id. at 1054-1055.

The appellant’s alternative argument that the verdict is against the weight of the evidence, is addressed to the discretion of the trial court. Commonwealth v. Chine, 40 A.3d 1239, 1241 (Pa. Super. 2012); Commonwealth v. Bozic, 997 A.2d 1211, 1233 (Pa. Super. 2010). A claim of this type “concedes that there is sufficient evidence, but nevertheless contends that the trial judge should find the verdict so shocking to one’s sense of justice and contrary to the evidence as to make the award of a new trial imperative.” Commonwealth v. Robinson, 834 A.2d 1160, 1167 (Pa. Super. 2003). See also Chine, 1243-1244 quoting Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003)(“the evidence must be ‘so tenuous, vague and uncertain that the verdict shocks the conscience of the court.’”); Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa. Super. 2003).

Trial judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit as the thirteenth juror. Rather, the role of the trial judge is to determine that ‘notwithstanding all of the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.’

Commonwealth v. Widmer, 744 A.2d 745, 752 (Pa. 2000).

The appellant contends that the Commonwealth failed to demonstrate that the “defendant acted with the intent to harass, annoy, or alarm [Ms. Quinones], but rather acted under the influence of transitory anger.” In other words, even though the appellant spent thirty (30) to forty-five (45) minutes hurling invectives, it was not intended to harass Ms. Quinones. Instead, it merely represented passing anger generated by the treatment of his parents at ManorCare.

Harassment is defined in pertinent part as follows:

(a) Offense defined — A person commits the crime of harassment when, with the intent to harass, annoy or alarm another, the person
(1) strikes, shoves, kicks or otherwise subjects the other person to physical contact, or attempts or threatens to do the same.

18 Pa.C.S. § 2709(a)(1) (emphasis added).

The appellant, by his threats to “shoot-up” the facility, not only upset Ms. Quinones, but her supervisors were alarmed enough to seek police intervention. He also threatened to “physically push [staff]” into his parents room to show them how to provide care to his parents. All of the facts demonstrate that staff at ManorCare were alarmed, and the appellant was threatening to either mortally wound them or subject them to physical contact. 18 Pa.C.S. § 2709(a)(1).

The defense contends that there was no intent to “harass, annoy, or alarm” Ms. Quinones or other staff at ManorCare. In order to be guilty of harassment, the statute “requires the fact finder to infer a specific intent, and it specifies that the conduct must be of a non-legitimate nature — conduct which is not constitutionally protected.” Commonwealth v. Miller, 689 A.2d 238, 242 (Pa. Super. 1997). Counsel attempts to analogize the crime of harassment to those terroristic threats cases which interpreted that statute as not created to penalize “spur-of-the-moment threats” which result from transitory anger. Commonwealth v. Reynolds, 835 A.2d 720, 730 (Pa. Super. 2003); Commonwealth v. Anneski, 525 A.2d 373, 376 (Pa. Super. 1987). Those cases also recognize that “[b]eing angry does not render a person incapable of forming the intent to terrorize.” Reynolds, 835 A.2d at 730 quoting In re J.H., 797 A.2d 260, 263 (Pa. Super. 2002). In In re B.R., 732 A.2d 633, 638 (Pa. Super. 1999) “spur of the moment” statements were those that were “the product of a heated exchange between parties made out of hysteria or anger that do not trigger foreseeable immediate or future danger....” Id.

Here, the appellant’s statements foretold of future actions on his part that would place staff at ManorCare in danger. The staff were aware of appellant’s familiarity with their facility, and Ms. Quinones was aware that the intensity and prolonged statements did not seem to be merely idle chatter. In this day and age, the appellant was fully aware how his statements would trigger action, and all the facts and circumstances demonstrate that it was his intention to do so.

In Commonwealth v. Hart, 559 A.2d 584 (Pa. Super. 1989) the evidence was sufficient to prove an “intent to harass” where the appellee left messages on the union’s answering machine which included “threats of death and destruction” to various members of the union. In so finding, the court stated the following:

The mere fact that appellee may have been upset at the union’s failure to assist him in obtaining employment does not negate his obvious intent to harass his listener. By the veiy nature of the language used, appellee no doubt knew, or should have known, that his messages would inflict terror on the listener as well as other members of the union. Any privilege enjoyed by appellee due to his recent difficulty in obtaining employment was lost the moment he began his tirade against union officials. To hold otherwise would render [the harassment statute] meaningless.

Id. at 587.

Furthermore, the appellant’s initial statements to Officer Fryslin that Ms. Quinones must have overheard his conversation with his mother were false and misleading, and could be considered as an attempt to divert suspicion. “[Fjalse or contradictory statements by the accused are admissible...[to] infer [] that they were made with an intent to divert suspicion...” Commonwealth v. Glass, 405 A.2d 1236, 1242 (Pa. 1979) quoting Commonwealth v. Bolish, 113 A.2d 464, 476 (Pa. 1955)(overruled on other grounds); see also Commonwealth v. Young, 748 A.2d 166, 180 (Pa. 1999) quoting Commonwealth v. Carbone, 574 A.2d 584, 589 (Pa. 1990)(the fabrication of false and contradictory statements by an accused may be used by the fact finder to infer that they were made with the intent to mislead authorities and are evidence of guilt); Commonwealth v. Lettrich, 31 A.2d 155, 156 (Pa. 1943); Commonwealth v. Donnelly, 653 A.2d 35, 37 (Pa. Super. 1995); Commonwealth v. Calloway, 459 A.2d 795, 798 (Pa. Super. 1983).

For all the foregoing reasons, the evidence was sufficient to sustain the verdict of guilt to harassment, and that verdict was not against the weight of the evidence.

B. Refreshing Ms. Quinones’ Memory With Her Written Statement To Police

Throughout her testimony, Ms. Quinones remembered most of the details of the appellant’s tirade. For example, she remembered that appellant threatened to “shoot-up the place,” and that he would physically push staff into his parents’ room. However, she could not recollect one relevant detail regarding appellant’s use of the word “gun.”

Ms. Quinones testified almost six (6) months after the events, and readily acknowledged that looking at her written statement would refresh her recollection of the appellant’s statements. She explained that the date of the offense, as well as other responsibilities at ManorCare, might have affected her ability to remember all of the details. She also testified that she was nervous and did not “feel comfortable” around the appellant. This court overruled defense counsel’s objection, and permitted Ms. Quinones to review page three of her written statement.

Pa.R.E. 612 states, in pertinent part, the following:

(a) Right to refresh memory. A witness may use a writing or other item to refresh memory for the purpose of testifying while testifying, or before testifying.

This rule preserves the common-law rules that a witness’s memory may be refreshed during testimony. Commonwealth v. Lamb, 455 A.2d 678, 685 (Pa. Super. 1983). “The proper procedure for a party to refresh his [or her] own witness’ recollection is to show the writing...to his witness and after the witness’ recollection is refreshed, to proceed with direct examination and have the witness testify from present recollection.” Id. (emphasis omitted).

A three part is used to determine if the recollection of a witness may be refreshed:.

To permit the use of a writing in order to refresh the memory of a witness, the proponent must show: (1) that the witness’ present memory is inadequate; (2) that the writing could refresh the witness’ present memory; and (3) that reference to the writing actually does refresh the witness’ present memory.

Id. quoting Commonwealth v. Proctor, 385 A.2d 383, 385 (Pa. Super. 1978); see also Commonwealth v. Montgomery. 687 A.2d 1131, 1137 (Pa. Super. 1996)(collecting cases).

The proper foundation was laid to permit the Commonwealth to refresh Ms. Quinones’ memory. Her memoiy regarding the gun was “inadequate,” her own statement could refresh her present memoiy, and her written statement did refresh her present memory. See Commonwealth v. Wilson, 442 A.2d 760, 764 (Pa. Super. 1982)(Proper to use reports to recollect exact words which officers did not recall.).

It was not an abuse of discretion to permit the use of a portion of Ms. Quinones’ written statement to refresh her recollection. Nonetheless, any error would be treated as harmless. Montgomery, 687 A.2d at 1137-1138.

For all the foregoing reasons, the judgment of sentence should be affirmed.

ORDER

And now, this 8th day of January, 2015, it appearing that on November 14, 2014, the appellant filed a notice of appeal in the above-captioned matter; it further appearing that on December 24,2014, counsel for the appellant filed a “concise statement of matters complained on appeal” pursuant to Pa.R.A.P. 1925(b); it further appearing that the attached opinion satisfies the requirements of Pa.R.A.P. 1925(a);

It is hereby ordered that the clerk of judicial records shall transmit the record in the above-captioned matter to the Superior Court forthwith;

It is further ordered that the clerk of judicial records shall include with the transmittal of the record the following documents:

1. Notes of testimony from the trial held on October 16, 2014.

      . 18 Pa.C.S. § 2709(a)(1).

      . Concise statement, ¶2.

      . Id. at ¶1.

      . Notes of Testimony, Trial (hereinafter N.T.T.), p. 22.

      . Id. at pp. 26-27, 48.

      . Id. at pp. 30, 37.

      . N.T.T. at pp. 31-32,45,49-51.

      . Id. at pp. 32-33, 37,45.

      . Id. at pp. 33-34, 52-53, 55, 75.

      . Id. at p. 45.

      . Id. at p. 72.

      . Id. at pp. 73-74.

      . Id. at pp. 79-82.

      . N.T.T. at pp. 85-87.

        .Id. at pp. 87-88.

      . Id. at p. 88.

      . Concise statement, ¶2.

      . N.T.T. at pp. 35-37.

      . N.T.T. at pp. 45-56, 51, 55.

      . Id. at pp. 36, 39,44.

      . N.T.T. at p. 38.

      . Defense counsel had a copy of Ms. Quinones’ written statement, and during cross-examination, used a transcript of a recording of the preliminary hearing in an effort to impeach Ms. Quinones about the use of the word “gun.”


author: ZULICK, J.,

text:
    Mauceri v. First National Bank of Pennsylvania

      C.P. of Monroe County,
    No. 7374 CV 2013

      Geoffrey S. Worthington, for plaintiffs.

      Kenneth M. Dubrow, for defendant.
    Jan. 12, 2015
   ZULICK, J.,

Plaintiffs Diana Mauceri and Carlo Sibilla have filed a motion for partial summary judgment. Mauceri and Sibilla initiated this quiet title action on August 29,2013, seeking declaratory judgment. The defendant, First National Bank of Pennsylvania, (First National) purchased a parcel of land known as Manor View Avenue, Mount Pocono, Pennsylvania, Tax Parcel 10/8/2/25 (the property), at a judicial sale held on May 2,2012. The owners of the property at the time of the judicial sale were Tyco Realty, Inc. and Tyco Homes, Inc. (the Tycos). Mauceri and Sibilla allege that they obtained default judgments in this court against Tyco Realty, Inc. on March 23, 2012 in the amount of $211,241.55 and against Tyco Homes, Inc. on the same date in the amount of $20,760.00.

Mauceri and Sibilla contend that First National bought the property subject to these two judgments. They argue that their liens survived the judicial sale because they were not given proper notice of the sale. Their action to quiet title seeks to establish that their judgments continue to be valid liens on First National’s property. First National argues that the plaintiffs’ judgments did not become liens against the property because the Tycos did not have legal title to the real estate at the time the judgments were entered. First National contends that when the property was exposed to upset tax sale on September 14,2011, and was not purchased, the Monroe County Tax Claim Bureau (MCTCB) became the legal owner of the property.

Mauceri and Sibilla filed a partial motion for summary judgment on October 31, 2014. First National filed a response to plaintiff’s motion on November 24, 2014. Both parties briefed their positions, and both matters were argued before the court on December 1, 2014.

DISCUSSION

“Summary judgment is only appropriate in cases where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Gleason v. Borough of Moosic, 15 A.3d 479, 484 (2011). A material fact is one that directly affects the outcome of the case. Bartlett v. Bradford Publ’g, Inc., 885 A.2d 562, 568 (Pa. Super. 2008). A court must view the evidence in the light most favorable to the nonmoving party, and all doubts as to a genuine issue of material fact must be resolved against the moving party. Gleason, 15 A.3d at 484 (citing Fine v. Checcio, 870 A.2d 850 (2005)). When the moving party satisfies its initial burden, the nonmoving party may not simply rest upon the allegations or denials contained in the pleadings; instead the nonmoving party must show there is a genuine issue for trial. Preferred Fire Prot., Inc. v. Joseph Davis, Inc., 984 A.2d 20, 24 (Pa. Super. 2008). A nonmoving party’s failure to adduce sufficient evidences on an issue essential to the case establishes that no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. Ario v. Ingram Micro, Inc, 965 A.2d 1194, 1207 n.15 (Pa. 2009).

The parties do not dispute the facts necessary to decide the question before the court. Mauceri and Sibilla concede that the MCTCB attempted to sell the property at the upset tax sale on September 14, 2011, but was unsuccessful. The Tycos have never contested the upset sale or the later judicial sale. The MCTCB filed a petition on December 28, 2011 requesting leave to conduct a judicial sale of properties which included the Tycos’ property. A hearing was held on the petition on March 20,2012. First National concedes that the plaintiffs obtained judgments in this court against the Tycos that were entered of record on March 23, 2012. The MCTCB did not serve the plaintiffs with notice of the March 20, 2012 hearing, because their liens were not of record until after that date. Both parties agree that First National then bought the property at the May 2, 2012 judicial tax sale.

First National contends that the Tycos lost legal title to their property following the unsuccessful September 14, 2011 upset tax sale. It relies upon the holding in Commonwealth v. Sprock, 795 A.2d 1100 (Pa. Cmwlth. 2003) for this proposition. In Sprock, the owners’ property was exposed for sale at an upset tax sale, but was not purchased. The bureau maintained the property in its inventory of unsold property, but did not seek to sell the property at judicial sale. Ten years later, the owners’ were cited under a local ordinance for failure to maintain their property. They defended on the basis that they did not own the property, the Somerset County Tax Claim Bureau did. The Sprock court stated:

Sections 608 and 615 of the Law [72 P.S. §§5860.608, 5860.615] instruct that the deed to a tax delinquent property sold at an upset sale shall be conveyed by the bureau as trustee, which is a person or entity holding legal title to property for the benefit of another. Thus, it is clear that a tax claim bureau must become trustee of a property at the moment it concludes the upset sale, that is, when the property is struck down, and legal title to the tax delinquent property passes to the tax claim bureau, as trustee, at that time, which is the most appropriate time for that to happen because the owner’s right of redemption at that time is extinguished.

Id. at 1103.

“[A]t an upset sale, where there are no bids of the upset sale price, all rights in the property, i.e., legal title, are transferred from the owners of the property to the tax claim bureau, as trustee, by operation of law.”

Id. at 1103, n.9.

Thus, First National contends that the Mauceri and Sibilla judgments did not attach to the Tycos property because the Tycos were not the legal owners of the property at that time; the MCTCB was the legal owner, as trustee, by operation of the Real Estate Tax Sale Law (RETSL).

Mauceri and Sibilla argue that they were lien creditors of the Tycos as of March 23, 2012 when their judgments were docketed. RR.C.R 3023 provides that:

Except as provided by subdivision (b), a judgment when entered in the judgment index shall create a lien on real property located in the county, title to which at the time of entry is recorded in the name of the person against whom the judgment is entered.

P.R.C.P. 3023(a).

The RETSL provides in 72 P.S. §5860.610 that when the upset price is not bid at the upset sale, the TCB may petition to sell the property at judicial sale:

...Upon the presentation of such petition, accompanied with searches, showing the state of the record and the ownership of the property and all tax and municipal claims, liens, mortgages, ground rents, charges and estates against the same, the court shall grant a rule upon all parties thus shown to be interested to appear and show cause why a decree should not be made that said property be sold, freed and cleared of their respective tax and municipal claims, liens, mortgages, charges and estates, except separately taxed ground rents. The rule shall be made returnable in not more than thirty (30) days from the date the petition was presented or as otherwise determined by the court.

72P.S. §5860.610.

Thus, the statute requires notice to lienholders of the petition to schedule a judicial sale when an upset sale is unsuccessful. Due process requires that notice of the judicial sale be given to all parties with a property interest, including lienholders. See Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983); First Pa. Bank, N.A. v. Lancaster Cnty. Tax Claim Bureau, 470 A.2d 938 (Pa. 1983).

The Commonwealth Court considered a situation where a lien holder did not receive notice of a judicial sale in Muhlenberg Tp. Authority v. Fisher, 503 A.2d 1022, 1024 (Pa.Cmwlth.1986). There a sewer authority had placed sewer liens upon a customer’s property. The property was exposed to upset tax sale but there were no bids. A judicial sale was then held and the property was sold. The sewer authority was not served with the petition for judicial sale. The court ruled that the sewer liens were not discharged. The court stated:

...the tax sale immediately and drastically diminished the value of the lien by granting the purchaser title free of all liens without an opportunity to be heard by the lienholder because of no notice.
Failure to give notice does not discharge the lien and purchasers take the property subject thereto. (Citation omitted.)

Id. at 1024.

The first question presented in this case is whether the Tycos had legal title to the property when the Mauceri and Sibilla liens were docketed. The Muhlenberg Township case does not answer this question because the timing of the entry of the sewer liens cannot be determined from reading that opinion. Counsel have not cited any cases involving judgment liens docketed after the upset sale. However, there is no question here that the Tycos were the record owners of the property when the judgment liens were entered. Under Pennsylvania law, these judgments attached to Monroe County real estate titled in the name of the judgment debtor at time of entry. See P.R.C.P. 3023(a). The protection provided to judgment creditors by P.R.C.P. 3023 is available against record owners. The Tycos were the record owners of the property when the judgments were docketed.

First National invites the court to overlook Rule 3023 based upon the Sprock decision and hold that even though the Tycos had record title, the judgments did not attach because legal title was held by a non-record trustee, the MCTCB. If First National’s argument is correct, the MCTCB would be legally responsible for hundreds of properties that it does not have possession of, with all of the consequences that would entail.

The Commonwealth Court addressed the status of legal title after an upset sale in Willard v. Delaware County Tax Claim Bureau, 921 A.2d 1273 (Pa. Cmwlth. 2007). There a property went through upset sale in 1996 with no bids. The Delaware County Tax Claim Bureau did not immediately petition for a judicial sale, and taxes became delinquent through 2005. On May 3, 2004, one of the owners of the property transferred his one-half interest in the property to his children by recorded deed. On March 3, 2005, the tax claim bureau petitioned for a judicial sale. The tax claim bureau did not give notice of the hearing on the petition to the new owners;

The Commonwealth Court affirmed the trial court’s order setting aside the sale. The court stated;

The tax claim bureau made no attempt to notify Harrison’s children, even though they were readily identifiable as the successors to their father’s interest. in the property by virtue of the deed of gift recorded in Delaware County on May 3, 2004, nearly one year before the judicial sale. fn7 Finally, Willard, Harrison and the Harrison children all testified that they were unaware of the judicial sale scheduled for May 25, 2005.
fnl. Neumann argues that the trial court erred by allowing the Harrison children to intervene in this matter. This argument is clearly without merit since they were the real parties in interest at the time of the 2005 judicial sale.

Id. at 1280.

The Commonwealth Court found that the record owner had the authority to deed his interest in the property to his children after the upset sale, and also found that the children were entitled to notice of the judicial sale petition as “the real parties in interest.” No suggestion was made that the tax claim bureau was the legal owner, or that the post-upset sale transfer of record ownership was in any way invalid.

The Willard case does not answer the final question presented here, however. The Mauceri and Sibilla judgments were not entered until March 23, 2012, three days after the hearing held on the MCTCB petition to schedule the judicial sale. Of course the MCTCB gave no notice of the hearing on the judicial sale petition to Mauceri and Sibilla because they had no lien on the property on that date. Did the MCTCB have an obligation to provide notice to them as later-appearing creditors in order for the sale to be valid? There does not seem to be a reported case on this issue.

The case of Citimortgage, Inc. v. KDR Investments, LLP, 954 A.2d 755 (Pa. Cmwlth. 2008) is instructive. There the Dauphin County Tax Claim Bureau sent certified mail notice of a tax sale addressed to the owner of the property on July 17, 2006. The tax sale notice was returned to the bureau and marked “return to sender, unclaimed, unable to forward.” In the meantime, Citimortgage was foreclosing on that owner, and obtained a recorded sheriff’s deed on July 27, 2006. The tax claim bureau then mailed a second notice of tax sale by first class mail, this time to Citimortgage, as the owner of record.

The upset tax sale was held, the property was purchased, and afterwards, Citimortgage petitioned to overturn the sale. Both the trial court and the Commonwealth Court ruled that the sale was invalid. The Commonwealth Court stated that because of due process concerns, the “[n]otice provisions of the [tax sale] law are to be strictly construed, and there must be strict compliance with such provisions to guard against deprivation of property without due process of law,” citing Ali v. Montgomery County Tax Claim Bureau, 124 Pa. Cmwlth. 557, 562, 557 A.2d 35, 37 (1989), Id. at 759.

The court emphasized its holding:

...the notice requirement is absolute. A property that changes owners one day before a scheduled tax sale must be delisted in order to give the new owner at least 30 days advance notice, by certified mail, of the impending tax sale.
In sum, a property may not be sold at a tax sale unless the one who owns the property on the day of the sale is given notice by certified mail of an impending tax sale at least 30 days prior to the sale. The bureau must be able to produce evidence that it gave this notice to the one who owns the property on the day of the tax sale. If the bureau cannot produce this proof, the tax sale is invalid. Because the bureau did not send notice to Citimortgage by certified mail, 30 days before its property was sold, the trial court correctly set aside the tax sale.

Id. at 760.

Here the RETSL statute, 72 P.S. §5860.610, addresses the due process concerns for a judicial sale by requiring the court to grant a rule upon all interested parties to “appear and show cause why a decree should not be made that said property be sold, freed and cleared of their respective... liens....” Similar to the Citimortgage situation cited above, the Mauceri and Sibilla liens appeared of record after the MCTCB attempted to give notice to interested parties. However, their liens were on public record well before the sale, for all to see, including the MCTCB and First National. Mauceri and Sibilla were entitled to notice and an opportunity for a hearing before their lien was eliminated.

Our Pennsylvania Supreme Court has stated:

We hold, therefore, that tax sales are proceedings which may deprive judgment creditors of property rights, and hence, notice and hearing must measure up to the standards of due process. When the judgment creditors is identified in a judgment that is publicly recorded, constructive notice by publication must be given and supplemented by notice mailed to the judgment creditor’s last known available address, or by personal service as is the case for mortgagees....
Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable.

In re Upset Sale, Tax Claim Bureau of Berks County, 479 A.2d 940, 946 (Pa. 1984).

If providing notice to Mauceri/Sibilla meant that the Tyco properties would have to be removed from the 2012 sale, that is the directive suggested by the Citimortgage holding.

The motion for partial summary judgment did not address the notice issues in the case, because they involved testimonial affidavits. The motion for partial summaiy judgment will be granted as far as the question of whether the Mauceri/Sibilla liens attached. I find that they did and that notice and an opportunity for a hearing had to be given to the judgment creditors for those liens to be discharged. A final hearing will be scheduled to address the remaining issues in this action to quiet title.

ORDER

And now, this 12th day of January, 2015, following argument on plaintiffs’ partial motion for summaiy judgment, it is ordered as follows:

1. The motion is granted.

2. A hearing on the merits of this case to resolve remaining issues of notice of sale is scheduled for the 29th day of January, 2015, at 9:00 o’clock a.m. in Courtroom No. 5, Monroe County Courthouse, Stroudsburg, Pennsylvania.


author: WILLIAMSON, J.,

text:
    Mount Pocono Motel Inc. v. Tuscarora Wayne Insurance Co.

      C.P. of Monroe County,
    No. 9534 CV 2013

      Mark A. Primrose, for plaintiffs.

      Alan S. Battisti, for defendant.
    Jan. 13, 2015
   WILLIAMSON, J.,

This matter comes before us on a motion for summary judgment filed by Tuscarora Wayne Insurance Company, (hereafter “defendant Tuscarora”) on October 30, 2014. On November 25, 2014, Mount Pocono Motel, Inc. and Mobashar Zafar (hereafter “plaintiffs”) filed an answer to defendant Tuscarora’s motion for summary judgment. On November 25, 2014, plaintiffs also filed a brief in opposition to defendant Tuscarora’s motion for summary judgment.

BACKGROUND

This action arises from an underling complaint in the Monroe County Court of Common Pleas filed by Luis Noriega against Mount Pocono Motel, Inc. and Mobashar Zafar (the plaintiffs herein this declaratory judgment action). Plaintiff Mount Pocono Motel, Inc. is a domestic corporation engaged in the business of operating a motel and renting rooms to its customers. Plaintiff Mobashar Zafar is an owner of the real property comprising the Mount Pocono Motel pursuant to an installation agreement of sale.

On September 9, 2010, Mr. Noriega filed a complaint against Mount Pocono Motel, Inc. and Mobashar Zafar alleging he sustained injuries and damages sustained due to the presence of mold in the room he had been renting. Mr. Noriega began renting Room #129 in 2004, and thereafter continuously until April 11, 2009. Additionally, plaintiffs claim that Mount Pocono Motel Inc. employed Mr. Noriega to perform maintenance work on the real property during the same time period.

In the complaint, Mr. Noriega alleged that, shortly after moving into the apartment, he began to suffer flu like symptoms, was constantly sick, and began to suffer from chest and breathing problems. On or about March 2008, Mr. Noriega discovered mold growth in the crawl space behind his room that was permeating through the walls of his room and that the walls had been painted in his room to hide the mold growth. On March 20,2008, Mr. Noriega claims to have had an air quality test conducted which reflected high mold content. Mr. Noriega alleged that he contacted Mount Pocono Motel, Inc. and Mobashar Zafar and informed them of the mold; however, they failed to investigate or remediate the mold problem.

On March 9, 2009, Mr. Noriega claimed to have had a more extensive investigation completed by ARM Environmental, LLC which reflected physical mold observed throughout Room #129 and the presence of high levels of toxic mold. Finally, Mr. Noriega alleged that after notifying Mt. Pocono Motel and Mobashar Zafar of the presence of toxic mold, and their failure to correct the problem, he was forced to leave his residence at Mt. Pocono Motel Room #129 and secure alternative housing.

The present action was brought to determine if defendant Tuscarora may have a duty to defend and, if necessary, to indemnify plaintiffs. Defendant Tuscarora has disclaimed coverage under the policy. Defendant Tuscarora issued a Commercial Line Policy, which provided in part, general liability coverage, to plaintiffs for property located 25 Knob Road, Mount Pocono, Pennsylvania, with a relevant policy period of July 1, 2008, to July 1, 2009. The policy includes an exclusion stating that this insurance does not apply to: “fungi or bacteria.” The “fungi or bacteria” exclusion provides that there is no coverage for bodily injury or property damage caused by fungi or bacteria. Mold is included in the definition of fungi given within the exclusion language. Plaintiffs claim that the testing was limited to mold and the presence of additional contaminants would likely fall outside of the coverage exclusion and thus trigger coverage.

DISCUSSION

Summary judgment may be granted pursuant to Pennsylvania Rule of Civil Procedure 1035.2 where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 468-69 (Pa. 1979). Summary judgment is properly entered where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law. Pa. R.C.P. 1035(b); Cosmas v. Bloomingdales Bros., Inc., 660 A.2d 83, 85 (Pa. Super. 1995).

Summary judgment may be granted only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co., Inc., 562 A.2d 279, 280 (Pa. 1989). The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Davis v. Pennzoil Co., 264 A.2d 597 (Pa. 1970). Moreover, the burden is on the moving party to prove that no genuine issue of material fact exists. Long v. Yingling, 700 A.2d 508, 512 (Pa. Super. 1997). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson, 412 A.2d at 469.

In response, the non-moving party may not rest upon the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. Phaff v. Gerner, 303 A.2d 826 (Pa. 1973). The court may also accept as true all well-pled facts contained in the non-moving party’s pleadings. Mattia v. Employment Mut. Cos., 440 A.2d 616 (Pa. Super. 1982); Ritmanich v. Jonnel Enters, Inc., 280 A.2d 570 (Pa. Super. 1971). A general denial is unacceptable and deemed an admission where it is clear that the non-moving party has adequate knowledge and that the means of information are within the control of the non-moving party. Elia v. Olszewski, 84 A.2d 1889 (Pa. 1951).

The instant motion for summary judgment requires us to determine whether, at this stage of the proceedings, defendant Tuscarora can deny coverage to plaintiffs for injuries sustained by Luis Noriega in the underlying complaint currently pending with this court. Defendant Tuscarora argues that summary judgment should be granted as a matter of law because the “fungi or bacteria” exclusion, found in the insurance contract between defendant Tuscarora and plaintiffs, applies to bar coverage for the claims alleged by Mr. Noriega in the underlying cause of action.

Without making factual determinations regarding the allegations raised by Mr. Noriega in the underlying cause of action, we agree in part with defendant Tuscarora in its motion, and grant summary judgment with respect to the “fungi or bacteria” exclusion barring coverage for injuries sustained by Mr. Noriega due specifically to the presence of mold.

In making the above determination, we are instructed by the Pennsylvania Supreme Court that the “primaiy goal in interpreting a policy, as with interpreting any contract, is to ascertain the parties’ intentions as manifested by the policy’s terms. When the language of the policy is clear and unambiguous, [we must] give effect to that language.” Kvaerner Metals Division of Kvaerner U.S., Inc. v. Commercial Union Insurance Co., 908 A.2d 888, 897 (Pa. 2006). Further, we are told that where a provision in the policy is ambiguous, “the policy is to be construed in favor of the insured to further the contract’s prime purpose of indemnification and against the insurer, as the insurer drafts the policy, and controls coverage.” Id.

The Pennsylvania Supreme Court has also stated that in a declaratory action to determine if a claim made by an insured is covered, it is the court which determines the question of coverage. American and Foreign Insurance Co. v. Jerry’s Sport Center, Inc., 2 A.3d 526, 542 (Pa. 2010). Specifically, we are instructed by the court that it is this court’s role to resolve questions regarding coverage and to eliminate the uncertainty of such coverage. Id. In expounding on this position, the court has held that “if the insurer is successful in the declaratory judgment action, it is relieved of the continuing obligation to defend. The court’s resolution of the question of coverage does not, however, retroactively eliminate the insurer’s duty to defend the insured during the period of uncertainty.” Id. The court has cautioned insurance providers that where a claim “potentially may become one which is within the scope of the policy, the insurance company’s refusal to defend at the outset of the controversy is a decision it makes at its own peril.” Id.

With these principles in mind, and in reviewing the terms of the Commercial Line Policy applicable to the matter at hand, we first find that defendant Tuscarora is entitled to summary judgment with respect to the “fungi or bacteria” exclusion found within the policy in question. We find the language in the exclusion to be clear and unambiguous in nature. The exclusion specifically states in Paragraph 2, Exclusions of Section I-Coverage A-Bodily Injury and property damage liability, that the insurance does not apply to:

“‘Bodily injury’ or ‘property damage’ which would not have occurred, in whole or in part, but for the actual, alleged or threatened inhalation of, ingestion of, contact with, exposure to, existence of, or presence of, any ‘fungi’ or bacteria or within a building or structure, including its contents, regardless of whether any other cause, event, material or product contributed concurrently or in any sequence to such injury or damage.”

Def. Tuscarora Wayne Ins. Co. Mot. for summ. j. Ex. B.

Further, the following definition is added to the definitions section of the exclusion: “‘fungi’ means any type or form of fungus, including mold or mildew and any mycotoxins, spores, scents or by products produced or released by fungi.” Id. (emphasis added).

This language clearly expresses the intent of defendant Tuscarora to exclude coverage for bodily injury or property damage as the result of fungi or bacteria found in the covered property. As such, we grant summary judgment in favor of defendant Tuscarora, and find that defendant Tuscarora has no duty to defend or indemnify plaintiffs with respect to allegations concerning bodily injury or property damage resulting from fungi or bacteria. This same language bars recovery for damages under either of the theories raised by Mr. Noriega in his complaint because the causation is the same: presence of mold.

Additionally, this court previously entered an order of court and opinion on July 8, 2014, granting defendant Tower Insurance Company of New York’s motion for

summary judgment relying on the same underlying claim by Mr. Noriega and essentially identical “fungi or bacteria” exclusion language in their policy. See Mt. Pocono Motel v. Tuscarora Wayne Ins. Co., No. 9534-CV-2013 (C.P. Monroe Co. July 8, 2014 Williamson, J.) We incorporate the factual allegations of Mr. Noriega in his complaint as set forth in footnote number one of our opinion dated July 8, 2014.

In granting summary judgment in favor of defendant Tuscarora, we do not dismiss the possibility that defendant Tuscarora may be required to defend and indemnify plaintiffs with respect to bodily injury sustained by Mr. Noriega resulting from other contaminates present in Mr. Noriega’s room during the time in which he resided there. However, at this time, there are no allegations in the underlying complaint filed by Mr. Noriega beyond his claim of injury and damages due to the presence of mold. There are no claims of other contaminants or causes of injury in the underlying complaint. Therefore, there are no other theories of recovery alleged for which the insurance policy issued by Tuscarora would cover.

ORDER

And now, this 13th day of January, 2015, upon motion of defendant Tuscarora for summary judgment, it is ordered and decreed as follows:

1. Summary judgment due to the “fungi or bacteria” exclusion is granted.

2. This matter is dismissed as between plaintiffs and defendant Tuscarora Wayne Insurance Company.