text:
    Meyer v. Meyer

      Angelo A. Papa, for plaintiff.

      Jonathan R. Miller, for defendant.

      E. Brandt Bythrow, for minor child.
    January 15, 2010
   PICCIONE, J.,

Before the court for disposition is the complaint for custody filed by Edward J. Meyer, the plaintiff (Father) against Patricia J. Meyer, the defendant (Mother). On June 17,2008, Father filed the complaint seeking custody of the parties’ two minor children, [ ] bom July 22, 1991 and [ ] bom April 26,1997. Subsequent to the filing of the complaint, [ ] has reached her maturity and is no longer a subject of these custody proceedings.

The parties were married on June 22,1990, resided in Lawrence County, Pennsylvania and separated on June 13, 2008. Subsequently, Mother remarried on October 23,2009 to James Smith. Father testified he is presently not married nor in any relationship.

Mother and her current husband reside in Lawrence County in the Wilmington Area School District in a three-bedroom, two-bathroom home, which sits on a one and one-fourth acre lot. Father resides in the Wilmington Area School District in Lawrence County in a two-bedroom, one-bathroom apartment. The apartment is rented by Father’s mother who is currently residing in a nursing home.

The minor child, [ ], is currently in the seventh grade having attended the Wilmington Area School District. Presently, the child is enrolled in cyberschool.

The parties’ other child, [ ], resides with Father and is presently attending Penn State University — Shenango Campus and working part-time at Taco Bell. She testified that she has no relationship with Mother.

The court heard testimony from Amy Pidro, guidance counselor of the Wilmington Area School District, who testified that she has had contact with the minor child and did not recommend enrollment of the minor child in cyberschool. The court also considered testimony of James Smith, Mother’s present husband, James Meyer, (age 21), Mother’s son with Mr. Smith, Sandy Copper, Lawrence County Children and Youth Services Administrator, Jeff Sunderman, counselor at Clover Psychological Association, Father, Susan Rizzo, the minor child’s paternal aunt, and Mother. The court also heard testimony in chambers, with counsel present, from the minor child.

Father works at King’s Auto Sales with working hours of 7:30 a.m. until 5 p.m. Monday through Friday, 7:30 a.m. to 8 p.m. on alternate Mondays and one weekend per month on Saturday from 9 a.m. until 1 p.m. Mother is currently unemployed, in good health and has a Social Security case pending due to an injury to her leg. Father describes his health as excellent.

Both parties have attempted to portray the other party as having engaged in conduct that has placed the minor child at risk; however, the court finds that, though both parties may be deficient in some aspect of their parenting skills, both parents do indeed love the minor child.

The court received testimony regarding the parties’ marriage. Mother testified that Father was physical with Mother, hit her, belittled her and engaged in name calling. The parties presented a history of protection from abuse filings during their marriage, including a protection from abuse brought by Mother on behalf of the minor child against Father. Sandy Copper, Lawrence County Children and Youth Services, testified that she knows Mother and testified as to an incident on or about November 2008 where she was contacted by the Northwest Regional Police Department regarding problems Mother was experiencing because of the child’s visit with Father. She reported that Mother was upset because at the weekend visit, the children had gotten into a fight over socks and the minor child was hit. The child reportedly stated that Mother told her that Father did not love her and was only taking her because he did not want to pay child support. Ms. Copper further testified that Mother became boisterous with her when confronted with this information.

The court also heard testimony from Jeff Sunderman, counselor with Clover Psychological Association, and from James Smith, Mother’s current husband. The court concludes from this testimony that so long as James Smith abides by the recommendations of Clover Psychological Association and the terms and provisions of the residential contract and expectations signed by Mother and James Smith on December 8, 2008, are adhered to, James Smith does not pose an exceptional risk to the health and safety of the minor child.

Mother testified that Father has had in the past and currently continues to have a problem with alcohol. Father has two prior driving under the influence violations, but denies any current alcohol consumption. Father further denies use of any non-prescriptive drugs or controlled substances.

The minor child testified in chambers before the court with all counsel present. The court finds the child to be alert, coherent and aware of her surroundings and situation. The court also believes that the child has been negatively impacted by the conduct of her parents toward one another and within the family relationships. Specifically, it was difficult for the child to maintain focus, and was restless when answering the court’s questions about her schooling. The child was somewhat evasive and unclear regarding cyberschool. However, her remarks about attendance at public school seemed to focus more on difficulties that she was having with another student that had not been appropriately handled by Mother. During in-court testimony, questions were raised about the child’s cleanliness, body odor, her rash and scalp condition. The court observed what appeared to be a generally healthy child who exhibited evidence of psoriasis or eczema. The court would note that both parties have been aware of this condition as it seems to have predated their separation. Though the child has been to one dermatologist, Mother testified that she is getting around to taking the child to another dermatologist and Father seems content in just allowing Mother to handle this situation and to complain about it when he perceives the opportunity to do so may benefit him. The court heard no testimony from either of the parties that the parties are conscientiously handling the minor child’s skin condition. The court further finds that the parties have inadequately attempted to establish communications between themselves regarding the minor child.

Throughout the proceedings, the court observed Mother engaging in conduct in the nature of her body language, her facial expressions and her responses wherein she was more interested in attempting to “score points” against Father as opposed to recognizing the impact upon the minor child. The court is particularly concerned with Mother’s decision-making process concerning and impacting the minor child. In particular, the unilateral decision to place the child in cyberschool. It appears to the court that this decision was made without the direction of the Wilmington Area School District guidance counselor and without the knowledge of Father. Further, it appears it was Mother’s solution to resolve a difficulty the child was having with another child, rather than seeking assistance from the appropriate school personnel to address the problem in school. As a result, the court believes this child is already behind in her social and academic development. The court has no doubt that Mother and child are good friends, but what the court is not so sure of is that Mother is aware of the child’s needs, and the guidance, direction, appropriate disciplining and structure the child requires as the, child progresses to adulthood.

The paramount consideration in a custody determination is the best interest of the children. Moore v. Moore, 535 Pa. 256, 634 A.2d 163 (1993). Custody can be changed without proof of a substantial change in circumstances when it is in the best interest of the child. Karis v. Karis, 518 Pa. 601, 544 A.2d 1328 (1988). To determine the best interest of the child, a court should consider all factors that would legitimately affect the child’s physical, intellectual, moral and spiritual well-being. Swope v. Swope, 455 Pa. Super. 587, 689 A.2d 264, 265 (1997).

In child custody cases, the determination of the best interests of the child encompassed consideration of the physical, emotional, intellectual and spiritual well-being of the child. In a custody case between fit parents, the test of the best interests of the child is initially weighed equally as to each parent and the parent will prevail when the weight of the evidence shifts even slightly in his or her favor. The parent’s ability to care for a child must be determined at the time of the custody hearing, not as of an earlier time. Wiseman v. Wall, 718 A.2d 844 (Pa. Super. 1998).

In this case, the court finds that Father offers the best opportunity for the parenting, lifestyle and decision-making process that are necessary to afford the minor child the greatest opportunity to develop appropriately; socially, mentally and intellectually. Mother changed the child’s schooling circumstances rather than discuss the issue with the school authorities or Father; Mother sought to institute protection from abuse actions against Father rather than open up and discuss the problems with Father; and Mother called the police on her other daughter because of what the court views as a minor spat between the two of them. In all of these circumstances, Mother should have conducted herself more maturely and appropriately. It appears that Mother’s resolution to the issues is clouded by an inappropriate desire to “get” Father or the other daughter to cause a negative effect upon the individuals involved.

Father is not blemish free. The court is not convinced that he has overcome his drinking problems. More so, the court is concerned about the residence of Father to the extent that if primary physical custody is awarded to Father, the minor child and the other daughter shall each have appropriate living conditions for them at Father’s residence.

However, in weighing the relative merits and the strengths and weaknesses of each parent, the court concludes that Father should be awarded primary physical custody of the minor child. The court believes such to be in the best interest of the child and will provide for greater continuity and stability in the life of the child. Therefore, the court will enter a separate order in accordance with this opinion.

ORDER

And now, January 15, 2010, following a custody trial on November 17, 2009, with the parties appearing with counsel, the plaintiff (Father) being represented by Angelo A. Papa, Esquire, and the defendant (Mother) being represented by Jonathan R. Miller, Esquire, and the minor child being represent by E. Brandt Bythrow, Esquire, and in accordance with the accompanying opinion of even date herewith, it is ordered, adjudged and decreed as follows:

(1) Primary physical custody of the parties’ minor child, [ ], bom April 26, 1997, is hereby awarded to Father; subject to the partial rights of Mother as hereinafter set forth.

(2) Father and Mother shall have shared legal custody of the minor child and shall execute any and all documents or releases necessary to effectuate legal custody, including but not restricted to, authorizations and/or releases for school reports, medical reports, insurance documents and documents required by state, local or federal authorities. Except in cases of medical emergencies, the custodial parent will consult with the non-custodial parent with regard to the medical, dental and psychiatric care and treatment of the child. Both parties shall have the rights to review the medical, dental and psychiatric records of the child, the results of psychological tests and the school records of the child. Also the custodial parent is responsible for the academic performance of the child and the child’s participation in normal extracurricular activities.

(3) Mother shall have partial custody with the minor child as follows:

(a) Alternate weekends from Friday after school until the following Sunday at 7 p.m.

(b) Each Wednesday after school (or 4 p.m. during non-school periods) until 7 p.m.

(4) The parties shall share equally the following holidays: New Year’s Day, Easter, Memorial Day, Fourth of July, Labor Day, Thanksgiving, Christmas Eve, Christmas Day and the minor child’s birthday. During even-numbered years, Mother shall have custody of the minor child from 9 a.m. until 3 p.m. and Father shall have custody of the minor child from 3 p.m. until 9 p.m. During odd-numbered years, this schedule shall alternate with Father having custody with the minor child from 9 a.m. until 3 p.m. and Mother having custody with the minor child from 3 p.m. until 9 p.m. In the alternative, if the parties agree, then the parties may alternate the holidays wherein each party would have the minor child for the full holiday day.

(5) Father shall have custody of the minor child every Father’s Day from 9 a.m. until 8 p.m. and Mother shall have custody of the minor child every Mother’s Day from 9 a.m. until 8 p.m.

(6) All holidays or other special periods of partial custody shall supersede the regularly scheduled periods of custody.

(7) Mother shall be entitled to two non-consecutive weeks of summer vacation with the minor child. Mother shall notify Father in writing by May 15 of each year as to which two non-consecutive weeks she will be exercising her rights of partial custody.

(8) The parties are extended the privilege by the court upon their mutual agreement to modify the terms of the above-stated custody provisions from time to time as they shall agree are in the best interests of the child.

(9) Father shall:

(a) Consider the re-enrollment of the minor child if such has not yet occurred, in the Wilmington Area School District for the second semester of the 2009-2010 school year;

(b) Within 10 days of the date of this order, arrange to have appropriate sleeping arrangements finalized for the minor child and her older sister at his residence. Lawrence County Children and Youth Services (LCCYS), located at 1001 E. Washington Street, New Castle, Pennsylvania 16101, telephone no. (724) 658-2558, shall conduct a home-study evaluation of Father and child’s residence after 30 days from the date of this order. LCCYS shall prepare and submit a report thereof to the court with a copy to counsel of record and said counsel is directed not to share the report with their respective client. Father shall be responsible for the payment of his cost prior to the date of the evaluation as assessed by LCCYS. Father is further directed to fully cooperate with LCCYS in connection with completing the home study;

(c) Review with the child’s pediatrician, the current medical condition and needs of the child and make immediate appropriate arrangements to address all such needs; and

(d) Evaluate the role alcohol consumption plays in his life and whether or not any remedial steps need be taken in view of his designation as primary physical custodian of the minor child. In any event, Father shall not consume alcohol within two hours of any time he is to engage in transporting the child.

(10) In any transporting of the minor child, all parties and anyone else involved with such transportation, shall comply with the laws and regulations of the Commonwealth of Pennsylvania including those regarding child safety restraint apparatus in any vehicle used to transport the child.

(11) Both parties shall be entitled to daily telephonic contact with the child while the child is in the custody of the other parent.

(12) No party shall remove the minor child from the jurisdiction of this court with the intent of changing the physical residence of the minor child without the written consent of the other party or the court.

(13) The parties are directed to fully cooperate with each other in fulfilling the requirements of this order and all other orders in connection with this matter. Failure to do so may result in sanctions being imposed by the court upon the offending party including suspension of custody and payment of attorney’s fees.

(14) While in the presence of the child, neither Father nor Mother shall make any remarks or do anything which can in any way be construed as derogatory or uncomplimentary to the other, and it shall be the duty of each parent to uphold the other parent as one whom the child should respect and love.

(15) The parties shall read and fully comply with the provisions of the appendix to custody order which is attached hereto [not published herein] and filed with this order.

(16) The prothonotary shall serve notice of this order by regular mail or personal service upon counsel of record; upon Sandy Copper at Lawrence County Children and Youth Services, 1001 E. Washington Street, New Castle, Pennsylvania 16101; and upon Jeff Sunderman at Clover Psychological Association, 3030 Wilmington Road, New Castle, Pennsylvania 16105.


source: Caselaw Access Project

author: FRIEDMAN, J,

license: Public Domain

text:
    Coon v. Kassgerji

      C. Kurt Mulzet, for plaintiff.

      Michael E. Flaherty, for defendant.
    December 15, 2009
   FRIEDMAN, J,

This case is a commercial landlord-tenant matter which was tried without a jury on March 11 and 12, 2009, before the Honorable Robert P. Horgos, formerly of this court. Judge Horgos entered a verdict in favor of plaintiff on March 26, 2009, and defendants thereafter filed a timely post-trial motion. After Judge Horgos retired, the case was reassigned to the undersigned for disposition. The parties filed briefs, and oral argument on the post-trial motion was held on July 13, 2009. We entered an order on that date in which we corrected the amount of the verdict to $18,538.29, to reflect an undisputed credit to which the defendants were entitled, and we otherwise denied defendants’ post-trial motion. This appeal followed.

We properly denied defendants’ post-trial motion because it was up to Judge Horgos to weigh the credibility of the witnesses and to apply his discretion, and we cannot disturb those findings.

In their statement of matters complained of on appeal pursuant to Pa.R.A.P. § 1925(b), defendants raise two general issues: that the court erred in failing to award defendants’/tenants’ lost profits based on the loss of use of the basement, and that the court erred in failing to give a credit to defendants for lost profits caused by the delay in opening their restaurant.

Regarding the loss of use of the basement, counsel for defendants argued that although the lease provided that the premises were “as is,” “as is” did not include a wet basement which was unusable for food storage or preparation. Counsel for defendants argued that they should have been entitled to a judgment in their favor on a counterclaim for the loss of use, in the amount of $ 1,000 per month for a total of $17,000.

Regarding the claim for lost profits caused by the two-month delay in opening the restaurant due to water damage, defendants’ counsel argued that Mr. Kassgerji testified as to his profits for the two comparable months of the following year. He also argued that Judge Horgos improperly treated this claim as a setoff, not a counterclaim.

Counsel for plaintiff argued that defendants have not paid any rent Counsel for plaintiff also argued that the intentions of the parties — such as, how important the basement was — was a matter to be determined by the fact-finder, Judge Horgos. He also noted that lost profits must be pled with particularity and supported with sufficient evidence, usually in the form of expert testimony, which was not the case here.

We concluded that there was no basis for us to disturb Judge Horgos’ decision. Judge Horgos may not have believed defendants’ evidence, or he may have concluded that the evidence was insufficient. Judge Horgos may have found that Mr. Kassgerji’s failure to pay any rent at all may have mitigated against his credibility. It would be conjecture for us to overturn his decision. Although defendants argued that their lost profits claim was a counterclaim and not a setoff, defendants are still held to the formal requirements of pleading in spite of the fact that they filed it pro se. Judge Horgos in his discretion treated defendants’ claims regarding the lost profits as a setoff, not a counterclaim.

We properly refused to grant defendants’ post-trial motion.

      . In their post-trial motion and at the argument thereon, defendants also raised an issue that plaintiff should not have received a $2,000 credit for a stove that had been removed from the premises. However, the issue regarding the stove was not raised in defendants’ statement of matters complained of on appeal.


author: ALBRIGHT, J.,

text:
    McLafferty v. Conshohocken Borough Zoning Hearing Board

      John J. Dorsey and Matthew C. Gaughan, for plaintiffs.

      Heather Durant, for defendant Conshohocken Township Zoning Hearing Board.

      George J. Ozorowski, for intervenors Myers and Bryant.
    February 17, 2010
   ALBRIGHT, J.,

The appellants, David McLafferty, David Bonza, Carolyn Rainville, Lauren Pessiki and Robert Zibelman appeal from this court’s order, dated October 14, 2009, denying the appellant, David McLafferty’s, motion to consolidate a zoning appeal with a land use appeal and requiring Mr. McLafferty to pay to George J. Ozorowski, Esquire, attorney for Thomas Myers and William Bryant (intervenors), the sum of $750, pursuant to 42 Pa.C.S. §2503(7) (9). For the reasons that follow, the undersigned believes that the appellants’ appeal is interlocutory and should be quashed or, alternatively, that the October 14 order denying Mr. McLafferty’s motion to consolidate should be affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

This lawsuit arises out of a zoning appeal involving a parcel of land which is located at 143 West Second Avenue, Conshohocken Borough, Pennsylvania (property), owned by the intervenors. The appellants, on the other hand, are the owners of various neighboring properties situated within the borough.

By way of background, on August 9, 2007, the intervenors submitted an application seeking zoning relief from the Conshohocken Borough Zoning Hearing Board in the form of a variance from section 10.5.B and 10.5.E of the Conshohocken Borough Zoning Ordinance of 2001. On October 1, 2007, the board granted the intervenors’ request for variance relief from both sections, a decision which precipitated an appeal (the first action) taken by the appellant, Mr. McLafferty, and his neighbors to the Court of Common Pleas of Montgomery County on October 31, 2007. (Bd’s decision, 10/1/07, at 5.)

Thereafter, realizing that they could accomplish their construction and land development objectives without the zoning relief previously granted by the board, the intervenors submitted to Conshohocken’s Borough Council an amended application seeking land development and subdivision approval regarding the identical premises which is the subject of the appeal currently pending at the above term and number and which required no zoning relief of any kind. Following its review of intervenors’ amended application, borough council, citing the pendency of the appeal regarding the intervenors’ prior zoning application and the need to first resolve the “fundamental legal assumptions” involved in that appeal, voted unanimously to deny intervenors’ amended application. In response, the intervenors filed a complaint in mandamus (second action, captioned at Myers v. Council of the Borough of Conshohocken and Borough of Conshohocken, Montgomery County Court of Common Pleas 2008-16070), seeking the entry of an order directing the defendants, borough council and Borough of Conshohocken to approve the previously rejected amended land development application.

On November 14, 2008, the Honorable Paul W. Tressler granted the intervenors/plaintiffs’ motion for peremptory judgment and directed Conshohocken’s Borough Council to enter a formal approval of the intervenors’ amended application “within 20 days.” (Tr. ct. order, Montgomery Court of Common Pleas 2008-16070, dated 11/19/2008.) Borough council thereafter complied with Judge Tressler’s order and approved the intervenors’ amended application and plan for land development and subdivision for which zoning relief was neither requested nor required. However, despite the finality of Judge Tressler’s order entered in the second action, from which no appeal was taken, the appellants proceeded with their filing of an untimely petition to intervene in that matter on December 22,2008. That petition was denied by Judge Tressler’s order of December 30,2008 which was thereafter docketed on January 6, 2009. The appellants’ subsequent appeal of that order was summarily “quashed” as “untimely” by the Commonwealth Court on April 13, 2009. (Pa. Commw. Ct. order, 229 C.D. 2009, dated 4/13/09; Montgomery County Court of Common Pleas 2008-16070.)

Having failed to derail the intervenors’ request for approval of their land development plans, which had been the subject of the second action, the appellant, David McLafferty, then turned his attention back upon this pending zoning appeal (i.e., the first action) at the above term and number. Knowing full well that the second action (at no. 2008-16070) had long since been put to rest by Judge Tressler and the appellate court, Mr. McLafferty, nevertheless, filed his motion to consolidate, which is the subject of this appeal, in an ill-conceived attempt to resurrect the previously adjudicated second action, and to consolidate that matter with this zoning appeal, which, for all intents and purposes, appears to have been rendered moot by Judge Tressler’s ruling. Mr. McLafferty’s motion was subsequently argued before the undersigned, and, following its thorough review of the record presented, the trial court issued an order, dated October 14,2009, denying the appellant’s motion to consolidate a zoning appeal with a land use appeal and required him to pay to George J. Ozorowski, Esquire, attorney for the intervenors, the sum of $750 for counsel fees incurred in the preparation, filing and presentation of their response to the said motion, “within 30 days” of the date of the order, pursuant to 42 Pa.C.S. §2503(7), (9).

Following the trial court’s rejection of Mr. McLafferty’s attempt to consolidate and his subsequent appeal of that decision on October 30, 2009, the following issues, as identified in the appellants’ statement of matters complaint of on appeal, were presented for appellate review:

(1) In light of the facts and circumstances set forth in appellants’ moving papers as well as those disclosed to the court during oral argument, Judge Albright abused his discretion and/or committed legal error by denying the motion to consolidate. Although a final non-appeal-able order had been entered in the matter (a mandamus action in the land use appeal) that appellants sought to have consolidated with their zoning appeal, the order in the mandamus action was void ab initio and could be reconsidered and/or vacated by Judge Albright at any time because appellants were never accorded due process even thought [sic] they were indispensable parties to the mandamus action.

(2) Judge Albright abused his discretion and acted without legal authority by improperly ordering that appellant, David McLafferty, pay appellees’ counsel fees, where the issuance of such an order was not in accord with 42 Pa.C.S. §2503(7)(9).

DISCUSSION

Ordinarily, unless permitted by statute or rule, an appeal may be taken only from a final order. In re Condemnation by City of Philadelphia in 16.2626 Acre Area, 981 A.2d 391, 396 (Pa. Commw. 2009). According to Pa.R.A.P. 341(b), an order is final and appealable only if it dismisses all the claims or parties, is defined as final by statutes, or includes the “express determination that an immediate appeal would facilitate resolution of the case.” Brawley Distributing Co. Inc. v. Heartland Properties, 712 A.2d 331, 332 (Pa. Super. 1998) (quoting Pa.R.A.P. 341(c)). The undersigned’s October 14, 2009 order denying the appellant’s motion to consolidate this case with another action in which a final, non-appealable order had been previously entered did not dispose of this case or dispose of the claims of parties involved herein. Therefore, in the first instance, the order appealed from might properly be considered to be interlocutory and non-appealable.

An appeal from a non-final order, also referred to as an interlocutory order, is permissible only if it falls into one of the following categories:

“(1) Interlocutory appeal as of right, pursuant to Pa.R.A.P. 311;
“(2) Interlocutory appeal by permission, pursuant to Pa.R.A.P. 312; or
“(3) Collateral order, pursuant to Pa.R.A.P. 313.”

The undersigned’s order of October 14,2009, denying the appellant’s motion to consolidate and awarding attorney’s fees to opposing counsel as a sanction pursuant to 42 Pa.C.S. §2503(7)(9) is not an interlocutory order appealable as of right under Pa. R. A.P. 311 because such an order does not fall within one of the specific subcategories clearly delineated by that rule. Nor does the October 14 order qualify as an interlocutory order appealable by permission, since the appellant made no such request to the Commonwealth Court seeking leave to appeal the order complained of as required by Appellate Rule 312. Indeed, the same conclusion must follow any attempted characterization of the subject order as “collateral” and appealable under Pa.RA.P. 313 where Mr. McLafferty failed to either assert such a claim or demonstrate that the order of October 14 is, as required by the rule, such order as is “separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.” Whether the subject order is separable from and collateral to the main cause of action, which, in this case, involves a zoning appeal, merely begs the question, since any claim which Mr. McLafferty might, at one time, been able to assert, was already “irreparably lost” prior to the filing of his motion to consolidate when the case with which consolidation is sought was rendered final and unappealable.

Finally and without explanation, the appellants complain that the trial court’s assessment of counsel fees against him was without authority and “not in accord with 42 Pa.C.S. §2503(7), (9).” However, those sections permit the trial court, where justified, to award reasonable counsel fees “(7) ... as a sanction,” or “(9) ... because the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith.” 42 Pa.C.S. §2503(7), (9). Despite the interlocutory nature of such an award as was made in this case, in the event the appellate court believes that the assessment appealed from is deserving of its more immediate scrutiny and consideration, the undersigned submits that counsel fees were certainly warranted, if not mandated, under the circumstances here presented, and that any appeal from that award is patently meritless.

What is particularly disturbing about the scenario developed in this case is that it involves the persistent efforts of the appellant, a lawyer, to prolong a situation which, long before he filed his motion to consolidate, he should have realized and acknowledged had no chance of success. Mr. McLafferty’s ill-advised, deliberate attempt to solicit the undersigned’s consent to reconsider and overrule the decision of a colleague of this court, a decision which even he recognized to be final and “nonappealable,” is reprehensible and sanctionable. Admittedly, the appellant’s motion is without any factual or legal basis and he made no effort to prove otherwise or establish the criteria customarily relied upon and required by rule and Pennsylvania case law in order to secure a consolidation of actions.

Minimally, Pa.R.C.P. 213(a) permits the consolidation of only those “actions pending in a count which involve a common question of law or fact or which arise from the same transaction or occurrence . . . .” Here, Mr. McLafferty seeks to consolidate the pending zoning appeal (i.e., the first action) with a mandamus action (i.e., the second action) which is no longer pending and does not involve either a common question of law or fact which arises from the same transaction or occurrence. The first action represents an appeal from a zoning hearing board decision by certain individuals who were not parties to the second action which involved a complaint in mandamus filed in response to a decision of the Conshohocken Borough Council, the municipality’s governing body. Without the shared identity of actions, law, facts, transactions or occurrences, parties and issues which Mr. McLafferty appears to have ignored at its inception, his motion was destined to fail from the beginning and he should have known better.

The appellant’s stubborn, unrepentant pursuit of a course of action which is clearly without sufficient legal basis, is frivolous, and serves no particular purpose other than to delay, vex and inflict upon his opponent unnecessary financial hardship, if not angst, certainly lends credence to the statement attributed to him that “you guys may win, but it’s going to cost you time and money.” (N.T. 10/9/09, at 15.) Conduct of the kind hereinbefore described and attributed to Mr. McLafferty should not be condoned or permitted to go unnoticed when deserving of the quite reasonable sanction as was imposed in this case and which, one might only hope, may serve as a deterrent to any such future egregious behaviors.

CONCLUSION

For all of the aforementioned reasons, the trial court believes that the appeal should be either quashed, or, in the alternative, the order of October 14, 2009, denying the appellant’s motion to consolidate, affirmed.

      . Pa.R.C.P. 213(a); see e.g., Keefer v. Keefer, 741 A.2d 808, 810 (Pa. Super. 1999).


author: LASH, J.,

text:
    Mayer v. Verizon-Pennsylvania

      Paul A. Lauricella, for plaintiff.

      John P Hartley, for defendant Verizon-Pennsylvania.

      John W. Stahl, for additional defendant PennDOT.
    January 22, 2010
   LASH, J.,

The matter before this court is the motion of additional defendant, Pennsylvania Department of Transportation (PennDOT), for. summary judgment. Specifically, PennDOT claims sovereign immunity pursuant to 1 Pa.C.S. §2310 and 42 Pa.C.S. §8521 et seq. Defendant, Verizon-Pennsylvania a/k/a Bell Atlantic (Verizon), argues that the doctrine of sovereign immunity is waived because of an applicable exception, namely, 42 Pa.C.S. §8522(b)(4), relating to a dangerous condition of Commonwealth agency highways. Plaintiff, Brent J. Mayer, as administrator of the estate of Dorothy I. Mayer, deceased, and in his own right, does not oppose PennDOT’s motion. Argument was held on January 19, 2010. For reasons set forth herein, we grant PennDOT’s motion and enter summary judgment against Verizon.

According to the record, plaintiff’s decedent, Dorothy I. Mayer, was the operator and sole occupant of an automobile and was travelling northbound on SR 29 in Hereford Township, Berks County, Pennsylvania, when she lost control of the automobile, and struck a wooden utility pole off the right side of SR 29. The road was snow covered. The decedent suffered fatal injuries as a result of the crash.

Plaintiff sued Verizon and defendant, Metropolitan Edison/First Energy Corporation, alleging, among other things, that the named defendants were careless and negligent regarding the placement and management of the utility pole struck by the decedent. Specifically, plaintiff alleged that the defendants committed the following negligent acts:

“(a) Failure to ensure compliance with guidelines regarding utility pole placement, management, and/or design, including the:
“(i) 1977 Guide for occupancy of highway R/W by above-ground electric & telecommunications utilities;
“(ii) (PennDOT) highway right-of-way policies;
“(iii) PUC-(PennDOT) policies regarding utility poles;
“(iv) (PennDOT’s) design and utility relocation manuals; and
“(v) U.S. recommendations regarding pole designs;
“(b) Failure to ensure the utility pole at issue in this lawsuit — particularly one placed at a bend in a State Route — was not so close to the road as to be a hazard when a car veers off of the road due to adverse weather conditions;
“(c) Failure to ensure that the utility pole was of such a design that it was flexible enough to break, and absorb the energy from a crash, rather than forcing all of the energy from the crash to be directed onto the vehicle and occupant of the striking vehicle;
“(d) Failure to ensure that the utility poles under its ownership, control, or right of control were not a hazard to motorists.”

In due course, Verizon joined PennDOT and Hereford Township as additional defendants. Verizon alleged that PennDOT, through its comprehensive utility pole safety plan, provides a detailed process in which PennDOT analyzes the utility pole placement and advises utilities on whether the poles are placed in an acceptable location based on the available right-of-way and accident statistics for the area. Utilities such as Verizon are required to obtain approval from PennDOT to place the utility pole in a “public right-of-way.” Therefore, PennDOT has the “ultimate authority” in determining the utilization of public right-of-ways.

Verizon further alleges that PennDOT breached the aforesaid obligations to Verizon and, ultimately, to motorists travelling on SR 29 by failing to ascertain and notify Verizon of the unsafe position of the pole which was struck by plaintiff’s decedent. Verizon alleges that it was reasonable in relying upon PennDOT to fulfill its obligations. Accordingly, if the placement of the utility pole was improper, and the placement resulted in damages to the plaintiff, these damages were caused by PennDOT’s negligence.

Regarding sovereign immunity, Verizon contends that the placement of the utility pole and PennDOT’s responsibilities regarding same fall within the concept of “roadway design.” Under the provisions of the Sovereign Immunity Act, roadway design is a theory of liability for which immunity has been waived. Accordingly, Verizon contends the motion for summary judgment should be denied.

In Jones v. SEPTA, 565 Pa. 211, 216, 772 A.2d 435, 438 (2001), the Supreme Court restated the standard for granting summary judgment:

“Summary judgment will be entered only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law. Skipworth v. Lead Industries Association Inc., 547 Pa. 224, 690 A.2d 169, 171 (1997). Summary judgment is proper in cases in which ‘an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to a cause of action or defense in which a jury trial would require the issues be submitted to a jury.’ Pa.R.C.P. 1035.2(2). We review the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 615 A.2d 303, 304 (1992).”

Under governmental immunity provisions of the Sovereign Immunity Act, an agency of the Commonwealth cannot be held liable in a negligence action. PennDOT is considered a Commonwealth agency for purposes of the Sovereign Immunity Act. Mullin v. PennDOT, 582 Pa. 127, 136, 870 A.2d 773, 779 (2005).

However, the general assembly has provided for a waiver of sovereign immunity if the acts which may impose liability falls within one of nine enumerated exceptions set forth in 42 Pa.C.S. §8522(b) and if the damages arise “out of a negligent act where the damages would be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person not having available the defense of sovereign immunity.”

The exception relied upon by Verizon is known as the “highway exception” and is set forth in 42 Pa.C.S. §8522(b)(4) which provides, in pertinent part:

“(b) Acts which may impose liability. — The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised to claims for damages caused by:....
“(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,....”

Pursuant to the highway exception, PennDOT may be held liable for a negligent breach of its duty to properly design, construct, and maintain highways. We note, however, that case law has limited the definition of highways to include only the paved portion of the highway and the berm or shoulder, and not to include the remainder of the right-of-way controlled by PennDOT. In Babcock v. PennDOT, 156 Pa. Commw. 69, 626 A.2d 672 (1993), a plaintiff was injured after her car left the paved highway and struck a log located on a grassy area several feet from the paved surface of the highway, within PennDOT’s right-of-way. In affirming summary judgment against the plaintiff, the Commonwealth Court stated:

“Babcock has cited no authority that indicates that PennDOT must maintain all property within its right-of-way in a condition which renders it safe for car travel. To accept Babcock’s argument would place the intolerable burden upon PennDOT of forcing it to maintain any property within its unopened right-of-way in a condition allowing safe car travel. The right-of-way off the highway or cartway is clearly neither intended to be used nor is regularly used for vehicular travel.” Id., 156 Pa. Commw. at 75, 626 A.2d at 675.

In Gramlich v. Lower Southampton Township, 838 A.2d 843 (Pa. Commw. 2003), citing Babcock, the Commonwealth Court ruled that a highway, for purposes of sovereign immunity, encompasses the “cartway,” that is, the paved and traveled portion of the highway, and the berm or shoulder, the paved portion to either side of the actual travelled portion of the road, not the right-of-way. The right-of-way off the highway is clearly neither intended to be used nor is regularly used for vehicular travel. Id., 838 A.2d at 846-47.

PennDOT cannot be held liable in this case. Initially, we find that no facts are alleged by any party claiming that PennDOT was negligent in its construction or maintenance of SR 29. While it is alleged that there was a snow and ice condition that may have been a factor in the accident, we agree with PennDOT that it has no duty under the law to clear a highway or otherwise provide maintenance for the removal of ice and snow to protect motorists. Kahres v. Henry, 801 A.2d 650 (Pa. Commw. 2002), appeal denied, 573 Pa. 669, 820 A.2d 706 (2003).

We also find that Verizon cannot rely upon the purported “design defect” in the highway as a basis for a waiver of immunity. Verizon’s theory requires some explanation because it is not based on an improper design of the roadway itself. Rather, Verizon contends that the placement of the utility pole, considering its proximity to SR 29 and the physical characteristics of SR 29, including the width of the road and the shoulder, the curves in the road, and so forth, creates a hazardous condition.

This relationship between the placement of the utility pole and the roadway was discussed by Verizon’s expert in his report and is the basis for his theory of liability known as the “clear zone” concept. This concept assumes that, despite the best efforts of engineers and roadway designers, motorists will leave the roadway for many reasons, including driver error, falling asleep, driving under the influence, or weather conditions. These are foreseeable factors which should be recognized. Accordingly, a clear zone permitting motorists to leave the road without incident should be considered in the design of a roadway.

As already set forth, and reiterated in the case of Pritts v. PennDOT, 969 A.2d 1 (Pa. Commw. 2009), a case where PennDOT’s obligation to keep the area adjacent to the highway clear of hazards based on the clear zone doctrine was also raised, the Commonwealth Court affirmed the judgment of the common pleas court, setting forth that the waiver of immunity under the highway exception only extends to PennDOT’s duty of care “to maintain the highway, i.e., the paved cartway and adjacent berm in a safe condition for the intended and foreseeable use of vehicular travel. This duty does not extend to hazards not located on the highway.” Id., 969 A.2d at 4. As is clear, the utility pole involved was not located on the paved cartway or adjacent berm.

Verizon has also failed to present sufficient facts to establish any duty on PennDOT’s part in this case. For one, contrary to Verizon’s assertions in its joinder complaint, the utility pole is not located within PennDOT’s right-of-way, but outside the right-of-way, located in an area outside of PennDOT’s control. Secondly, nothing in the record establishes that PennDOT had any involvement in the placement of this pole, any notice that the pole was being placed, or any notice that any prior accidents at the site had occurred. For these reasons as well, Verizon cannot sustain its claim against PennDOT. Accordingly, we enter the following order:

ORDER

And now, January 22,2010, upon consideration of the motion of additional defendant, PennDOT, for summary judgment, response thereto, briefs filed by the parties, review of the record, and after argument held, summary judgment is granted. Judgment is entered in favor of additional defendant, PennDOT, and against defendant, Verizon-Pennsylvania a/k/a Bell Atlantic.

      . By agreement of the parties, the action against Metropolitan Edison/First Energy Corporation was discontinued, an order being entered on May 6,2006.

      . 1 Pa.C.S. §2310 and 42 Pa.C.S. §8521.

      . 42 Pa.C.S. §8522(a).


author: SPRECHER, J.,

text:
    Moore v. Grossman

      Larry W. Miller Jr., for plaintiff.

      J. Peter Landis, for defendant.
    January 27, 2010
   SPRECHER, J.,

Defendant appeals the decision and verdict of this court which found in favor of plaintiff and against defendant in Count I for breach of contract with no damages, in favor of defendant and against plaintiff in Count II for unfair trade practices, in favor of plaintiff and against defendant in Count III for replevin in the amount of $2,781.97, and in favor of plaintiff and against defendant on defendant’s counterclaim. This opinion is filed pursuant to Pa.R.A.P. 1925.

FACTS

Plaintiff, Daniel Moore, is an architectural designer. Defendant, Damon M. Grossman, does business as “D. M. Grossman Remodeling” and provides remodeling services. Plaintiff wanted, inter alia, to enlarge a bathroom in his residence. On November 13, 2007, the parties entered into an agreement for defendant to provide the remodeling services for a total price of $6,843.94, payable in three installments. The first payment of $3,421.97 was due three days prior to the start of the job. The second payment of $1,710.99 was due upon request, and the third and final payment of $1,710.98 was due at the completion of the job. Each party was to supply certain necessary items to complete the project.

Defendant wrote the agreement which is on his letterhead. Defendant’s services, including the fact that he provides “24-hour emergency services,” are listed on the letterhead. Included on the printed stationery is the statement “We accept all major credit cards.”

On November 21, 2007, the Wednesday before Thanksgiving, defendant’s wife, Gwen Grossman, called plaintiff and stated that she needed the first payment that was due three days prior to the commencement of the work because defendant was starting the work on Monday, November 26, 2007. Plaintiff went to defendant’s business and made the payment with a credit card. Ms. Grossman testified that the credit card payment was deposited in defendant’s account on November 26, 2007.

As part of the remodeling services, defendant was to replace the basement door. Defendant informed plaintiff that he was going to do this first to have easier access to the residence. The basement door had been chewed by animals at the bottom. Plaintiff had secured the door by screwing a large three-quarter inch plywood board over the hole and into the door frame so the door was no longer usable. Plaintiff unlocked the door on November 26, 2007, for defendant to have access to the residence.

Defendant did not show up for work on November 26, 2007. Plaintiff called defendant to find out why he had not started the renovations. Defendant told him that he had taken care of emergencies and that he would start the work on Wednesday, November 28,2007. Defendant, however, testified that he had not started the work on November 26,2007, because he had been waiting for the money from plaintiff’s credit card account to be deposited into his account. Pie had proceeded to work when the money was deposited.

On Wednesday, November 28, 2007, defendant and three other employees started the demolition work on the bathroom. They arrived between 7 a.m. and 7:30 a.m. They tore out the bath, the shower, the toilet, the sink, two walls, and reattached wires in the ceiling. They finished working sometime between 3 p.m. to 3:30 p.m. Defendant testified that he had not removed the basement door because he had run out of time. Defendant ran out of room in the dump truck, so he did not remove the flooring and dry wall in the bathroom on that day.

When plaintiff came home on November 28, 2007, the odor of sewer gas permeated the entire house. The drains were not capped. The electricity was not functioning in the front quarter of the residence. Plaintiff hired others to cap the wires and to finish cutting pipes and capping them. Defendant and his employees, however, testified that they had not left any wires exposed when they had completed work on November 28,2007. Plaintiff testified that defendant had, in fact, taken the plywood off the basement door. The door remained hanging with a big hole in it so the residence was no longer secure, and there was additional work that could have been done even without blueprints.

Defendant did not return to the residence the rest of the week. He claimed that he had a water emergency on November 29,2007. He did not return on November 30, 2007, because he was too tired from handling the emergency. He did not communicate with plaintiff during this period.

Defendant had another water emergency on Monday, December 3, 2007. Ms. Grossman called around noon on that day to tell plaintiff that defendant would not be there that day and probably not on the following day. She further informed plaintiff that she would have to call back about when the work could be done. On December 4,2007, plaintiff spoke again to Ms. Grossman and told her that defendant was fired.

Defendant testified that he had been willing to proceed on December 4,2007, if plaintiff had supplied him with a blueprint and the necessary items that plaintiff was supposed to supply. Plaintiff had made two handwritten drawings. One drawing showed the demolition plan and the other showed the finished condition of the bathroom after the remodeling was completed. Plaintiff considered these drawings to be blueprints. Defendant testified that these drawings were not “real blueprints” and were insufficient to complete the remodeling portion of the project. Defendant had wanted a blueprint with precise measurements. However, even without a blueprint, defendant admitted that he would have had enough work at the residence for at least one-half day. There was no testimony that plaintiff had refused to provide defendant with a more detailed blueprint. Defendant further stated that he could not guarantee a specific completion date because he operates a 24-hour emergency service. Defendant did not purchase anything for the project except 2 x 4s.

Plaintiff testified that he wanted the money from the first installment returned to him minus the money that was owed to defendant for the work that was done on November 28, 2007. Defendant contended that he was unable to perform the work due to plaintiff’s conduct. Based on the foregoing evidence, this court found that plaintiff was entitled to get the return of his deposit minus defendant’s labor costs. This court entered the decision which defendant now appeals.

ISSUES

Defendant raises six issues in his concise statement of errors complained of on appeal filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(b):

(1) Whether this court erred in finding in favor of plaintiff and against defendant on Count III of plaintiff’s complaint for replevin inasmuch as replevin is an action to regain possession of goods and chattels from a defendant and money may only be the proper subject of replevin if it is easily susceptible to ready and positive identification. The evidence presented during trial failed to establish the existence of property that would be the proper subject of a replevin action.

(2) Whether this court erred in awarding monetary damages in favor of plaintiff and against defendant on Count III for replevin inasmuch as the primary purpose of an action in replevin is to recover property in specie and not to recover payments made in a breach of contract claim. The evidence presented during trial failed to establish a basis for an award of damages in a replevin action.

(3) Whether this court erred in finding in favor of plaintiff and against defendant on Count III for replevin inasmuch as the evidence presented at trial established that plaintiff sought relief for an alleged breach of contract and the recovery sought in Count III would thus be barred by the “gist of the action” doctrine.

(4) Whether this court erred in finding in favor of plaintiff and against defendant on Count III in the amount of $2,781.97 inasmuch as plaintiff’s evidence failed to establish a proper measure of damages and was otherwise insufficient to support an award of damages in the aforesaid amount. This court’s award of damages was thus based upon speculation and conjecture.

(5) Whether this court erred in finding in favor of plaintiff and against defendant in the amount of $2,781.97 inasmuch as the evidence presented during trial did not establish conduct on the part of defendant that would amount to breach of contract and/or wrongful taking or detention of property.

(6)Whether this court erred in finding in favor of plaintiff and against defendant in the amount of $2,781.97 inasmuch as the evidence presented during trial established that plaintiff breached the parties’ contract by: (a) firing defendant and preventing defendant from completing performance; (b) failing to supply materials necessary to allow defendant to complete performance; (c) failing to provide blueprints to defendant; and (d) failing to allow defendant a reasonable time to complete performance.

DISCUSSION

This court shall address defendant’s first two issues together because they are interrelated and concern the validity of awarding damages under a count for replevin. These issues are without merit.

Historically, replevin is an action undertaken to regain possession of goods and chattels from the defendant. However, money may be the proper subject of a replevin action if it is easily susceptible to ready and positive identification. It is fundamental that the defendant be in actual or constructive possession of the property which is the subject of the action. Commonwealth v. Dean, 245 Pa. Super. 322, 369 A.2d 423 (1976).

Plaintiff gave defendant a down payment for defendant’s services. Defendant did not perform according to the agreement, so plaintiff requested the return of his payment of $3,421.97. The amount of money is easily identifiable. Defendant received the money and has it in his possession. Defendant refused to return the money even though he did not earn it. Therefore, in the case sub judice, plaintiff is entitled to the return of his payment. Defendant retained it under false pretenses. Defendant did not do what he was obligated to do in order to keep the payment. For these reasons, this court found that plaintiff established a cause of action in replevin.

Defendant’s third issue is that replevin is barred by the “gist of the action” doctrine. For the following reasons, this issue is without merit.

This is the first time that defendant has raised this issue. He did not raise it by preliminary objection or in his answer. In essence, defendant waived the issue prior to trial. Assuming arguendo that defendant has not waived the issue, this court finds that plaintiff elected to proceed on Count III only of his complaint and dropped the breach of contract claim in which he sought a larger amount of damages. This court specifically asked plaintiff what damages were being sought. Transcript, 17. Plaintiff replied that he wanted the return of his payment less the cost of services rendered. Transcript, 18. Therefore, plaintiff proceeded to trial only on the replevin action. Defendant did not object at trial; thus, this defense is waived. Defendant cannot have it both ways. Had he successfully objected at any time to the replevin action, certainly plaintiff would not have withdrawn Counts I and II.

Defendant’s fourth issue is that this court erred in awarding damages in the amount of $2,781.97 because plaintiff’s evidence failed to establish a proper measure of damages so the award was based upon speculation and conjecture. This issue is meritless.

This court awarded plaintiff the return of his payment from defendant less the amount owed to defendant for the work done on November 26,2007, and the cost of 2 x 4s. The award was based on the initial payment of $3,421.97 minus these expenses. Therefore, this court did not engage in any speculation concerning the damages of $3,421.97. Giving defendant the benefit of the doubt, this court deducted labor and expenses of $640 for defendant in arriving at the award of $2,781.97.

This court shall address defendant’s fifth and sixth issues together because they concern the issue of whether or not defendant breached the contract or wrongfully detained plaintiff’s property. These issues are without merit.

It is clear that defendant breached the contract. First, defendant requested that plaintiff make the first payment on November 21, 2007 because he wanted to start the work on November 26,2007. Thus, defendant determined when the agreement commenced. There was contradictory testimony given by defendant and Ms. Grossman concerning the reasons why work did not start on November 26,2007. Ms. Grossman testified that defendant had emergency services that he had to perform. Defendant stated that he was waiting for the money to be deposited into his account by the credit card company. Neither reason is valid for a delay under the agreement.

A basic tenet of contract law is that when the language of a contract is clear and unambiguous its meaning must be determined by an examination of the content of the agreement itself. The court must construe the agreement only as written and may not modify the plain meaning under the guise of interpretation. Little v. Little, 441 Pa. Super. 185, 657 A.2d 12 (1995).

Defendant advertises on his letterhead that he provides 24-hour emergency services. Defendant does not state in the agreement itself that emergency services postpone the commencement or interrupt the completion of a job. Thus, defendant had an obligation to start on November 26,2007. If defendant was unable to handle the two jobs, then he should not have taken the emergency work. Plaintiff paid the money at defendant’s request so defendant could begin on November 26,2007. Plaintiff relied on defendant’s promise to perform and left the house unsecured to allow defendant access into the dwelling. Plaintiff performed his part of the bargain.

Defendant also advertised that he accepts all major credit cards. Plaintiff’s payment was approved by the credit card company so defendant knew that he would receive the funds from the credit company. He did not have to wait for the actual posting of the funds. Even assuming arguendo that defendant had the right to wait for the deposit, the funds were deposited in his account on the day that work was to start. Defendant did not start the work on that day, so he defaulted on the agreement.

Defendant did not return to work on the next four business days. Defendant, by his own admission, had work to do that did not require a blueprint with specifications. Defendant did not continue the work in a timely manner. If, as defendant contends, the door and the remaining demolition could have been completed in one-half day, then four whole days was more than a reasonable amount of time to finish the work in a timely manner. Defendant did not attempt the work at all.

Defendant’s contention that plaintiff breached the contract by firing him is frivolous. Plaintiff fired defendant only after defendant breached the contract by commencing the project late and not returning in a timely manner to finish the job. Out of seven business days, defendant appeared for work only one day. According to defendant the job should have taken two to three weeks to complete. After more than one week, defendant had not finished the final demolition work. Thus, plaintiff had allowed defendant a reasonable time to complete his work before he fired him.

In accordance with the foregoing opinion, this court submits that its decision should be affirmed and defendant’s appeal dismissed.


text:
    3115 Group LLC v. Transcontinental Insurance Co.

      C.P. of Allegheny County,
    no. GD 09-14817.

      Robert W. Deer and Wayne M. Chiurazzi, for plaintiffs.

      DaleK. Forsythe and Jeffrey A. Kubay, for defendants Transcontinental Ins. Co., National Fire Co. and CAN Ins. Co.

      Richards. Canciello, for defendant AKM Constructors LLC.

      Robert J. Garvin, for defendant Noralco Corp.

      John M. Steidle, for defendant Douglass Pile Co. Inc.

      February 12, 2010
   FRIEDMAN, J,

Defendants Transcontinental Insurance Co., Noralco Corp. and Douglass Pile Co. Inc. filed preliminary objections to plaintiffs’ complaint. Most of the objections were disposed of at oral argument. We took under advisement the question of whether or not the facts pled make out a claim for common-law indemnity. We conclude that they do and so will permit plaintiffs to file an amended complaint as discussed herein.

At oral argument the following rulings were made but no contemporaneous order was signed except where indicated:

“(1) The preliminary objections of defendants Transcontinental, National Fire Insurance Company of Hartford and CNA Insurance Company were sustained and CNA Insurance Company was dismissed from the action by order dated January 5, 2010.

“(2) The preliminary objections of Douglass Pile were in the nature of a demurrer to plaintiffs’ demand for attorneys fees, expert witness fees, etc. and for expenses related to construction delays etc. under plaintiffs’ only claim against Douglass Pile, Count 3, which combined contribution and indemnity. There was no express demurrer to the indemnity claim, but we understood the objection to pertain to both claims. Douglass Pile asks that ¶79^)(0) and (d) be ‘dismissed,’ i.e., stricken. At argument Douglass Pile agreed that a contribution claim is viable but without including those items of harm objected to. This seems to have been conceded by plaintiffs as to contribution but not conceded as to indemnity. The indemnity claim and issues related to it were taken under advisement. We now decide that both a claim for contribution and a claim for common-law indemnity may be re-pled as separate counts, without the demand at the contribution count for the improper items of damage. The reasons for the ruling on common-law indemnity are the main subject of this memorandum.

“(3) The preliminary objections of defendant Noralco were to the only counts against it, Count 2 (breach of contract) and Count 3 (contribution and indemnity). Noralco demurred to Count 2. The demurrer is based on the exhibits attached to plaintiffs’ complaint which Noralco said demonstrate that it did not breach the contract as plaintiffs allege. Specifically, Noralco says those exhibits show that it did name plaintiffs 3115 Group LLC and Alex Enterprises Inc., inter alia, as additional insureds, which was the only contract duty Noralco had to any of the plaintiffs. This objection was sustained and Count 2 was orally dismissed as to Noralco, with prejudice and without leave to amend. Noralco’s objections to Count 3 and the court’s decision thereon are similar to those of Douglass Pile.

“(4) The rules of court require each plaintiff to state separate counts against each defendant as well as separate counts for each claim/cause of action. The bases for relief by each plaintiff may be different and the bases for each plaintiff’s claims against each defendant is different. Plaintiffs are directed not to lump all defendants together when alleging the conduct complained of.”

DISCUSSION

After a review of the parties’ briefs on the issue, it appears that there is little dispute as to the law that applies: a person who has paid an injured third party (to settle a tort action) has a claim for common-law indemnity against the parties who actually committed the negligent act, but only if that person was not also negligent. (If the person was also negligent, then there would be only a claim for contribution from the other joint tortfeasors.)

Defendants Noralco and Douglass Pile have demurred to plaintiffs’ claim for common-law indemnification. The following facts are pled (or are pleadable in an amended complaint):

According to plaintiffs, plaintiffs’ general contractor, Zambrano, contracted with Noralco to install a temporary retaining wall at plaintiffs’ construction site. Noralco then entered two subcontracts, one with Douglass Pile and one with AKM Constructors LLC, who did the actual work. The retaining wall subsequently failed in July 2003 and caused damage to the adjacent landowners, the Hostoffers. The Hostoffers then sued plaintiffs 3115 Group LLC and Cozza Enterprises LLC for that property damage. Plaintiff Colony Insurance Company insured 3115 Group and undertook its defense. Colony also paid $ 100,000 towards the settlement with the Hostoffers. Cozza contributed $40,000 to the settlement and took title to the now useless real estate at issue. Plaintiffs tendered their defense and indemnification for the Hostoffers’ claim to defendants Douglass Pile and Noralco in September 2007. Despite repeated requests, both Douglass Pile and Noralco refused either to defend or indemnify. Plaintiffs settled the claim of the Hostoffers in late 2008 after giving all defendants “an opportunity to contest or object to the settlement terms.” Exhibit C to plaintiffs’ “memorandum of elements.” When no objection was forthcoming, plaintiffs then brought the instant action against Noralco, Douglass Pile, as well as AKM and the insurers of those defendants.

Defendants clearly dispute these allegations. However, once an appropriately amended complaint is filed by plaintiffs, those disputes can be raised in answers and new matters. They are not for preliminary objections.

Noralco and Douglass Pile argue that since the Hostoffers’ case against the plaintiffs was settled, and since the plaintiffs denied being negligent as to the Hostoffers, their claim lacks an essential element, that they were not “volunteers” when they settled. Noralco and Douglass Pile argue that plaintiffs cannot ever plead that they were “legally liable and could have been compelled to satisfy the claim [of the Hostoffers],” citing Tugboat Indian Company v. A/S Ivarans Rederi, 334 Pa. 15, 21, 5 A.2d 153, 156 (1939) and Willard v. Interpool Ltd., 758 A.2d 684 (Pa. Super. 2000).

However, at this stage, taking all the facts listed above as true, we conclude that plaintiffs have made out a common-law indemnity claim as well as the alternative claim for contribution. Plaintiffs as a landowner had a duty to the Hostoffers not to remove the support to the Hostoffers’ adjacent land. Plaintiffs could have been found legally liable based solely on the events on plaintiffs’ land that damaged the Hostoffers’ land. The success of the common-law indemnity claim is a matter for judgment on the pleadings, summary judgment or trial, but at this early stage, it is viable and amendment must be allowed.

As for the objections to the kinds of damage/harm claimed by plaintiffs, those that have not been conceded are better left to a motion for summary judgment.

Since the oral rulings regarding other claims and parties resulted in the striking of some counts and the dismissal of some parties, the plaintiffs are directed to file an amended complaint consistent with all the rulings made. See order filed herewith.

ORDER

And now, February 12, 2010, after consideration of the preliminary objections separately filed by defendants Douglass Pile Co. Inc. and Noralco Corp., for the reasons stated previously on the record at oral argument on January 5, 2010, as well as for the reasons set forth in the attached memorandum in support of order, it is hereby ordered as follows:

(1) The objections of Noralco and Douglass Pile to Count 3, “contribution and indemnity,” are sustained in part and overruled in part, and plaintiffs shall amend to set forth those claims in separate counts by each plaintiff against each defendant, one set for contribution and one set for common-law indemnity, claiming the different forms of damages applicable to each. The preliminary objections in the nature of demurrers to a contractual claim for indemnity as to these two defendants are sustained, and leave to amend as to contractual indemnity is denied.

(2) The preliminary objections ofNoralco to Count 2, “breach of contract,” are sustained, and Count 2 is dismissed as to Noralco, with prejudice.

(3) Plaintiffs may file an amended complaint within 30 days of this order, in accordance with the directive of the court during oral argument and as set forth in the attached memorandum in support of order.

      . Most of the time herein we will use plaintiffs to refer only to 3115 Group LLC and Cozza Enterprises LLC. Plaintiff Colony Insurance Company is a party plaintiff because it paid out monies that the defendants were obligated to expend.

      . Zambrano is not named as a defendant although it is mentioned in ¶3 of the complaint.

      . AKM has filed an answer and new matter.


author: KNISELY, J,

text:
    Commonwealth v. Stewart

      C.P. of Lancaster County,
    no. 5424-2005.

      Craig W Stedman, district attorney, for Commonwealth.

      R. Russell Pugh, for defendant.
    February 2, 2010
   KNISELY, J,

Before the court is defendant’s petition filed pursuant to the Post Conviction Relief Act (PCRA). 42 Pa.C.S. § §9541 -46. Notice will be given that it will be dismissed without a hearing for the following reasons.

The charges under the instant docket number, no. 5424-2005, arose from defendant’s actions while he was being arraigned on charges under a different docket number. During the arraignment, defendant became upset and violent. He refused to sit and a detective physically made defendant sit down. Defendant resisted. He kicked a row of metal chairs at the detective. One of the chairs hit the detective cutting his leg. Defendant continued to resist but was ultimately subdued by the detective.

On June 6, 2006, a jury found defendant guilty of aggravated assault and disorderly conduct. Defendant was sentenced to 21 to 42 months of state imprisonment on the aggravated assault charge and no sentence was imposed on the disorderly conduct charge. On direct appeal, the Superior Court affirmed defendant judgment of sentence. Commonwealth v. Stewart, no. 1655 MDA 2006, slip op. (Pa. Super. 2007). Allocatur was denied on March 27, 2008.

A timely pro se PCRA petition was filed on January 29, 2009. By order of February 9, 2009, Attorney R. Russell Pugh was appointed as counsel and leave to file an amended PCRA petition was granted until March 15, 2009. On March 17, 2009, counsel’s request for additional time to file an amended PCRA petition was granted until June 12, 2009. Attorney Pugh reviewed defendant’s petition, met with him at SCI Huntington to investigate the substance of his claims, and reviewed his medical records, finding no support for defendant’s contention of mental illness. On June 16, 2009, counsel submitted a Turner/Finley letter, certifying that his review of the claims revealed defendant’s petition is meritless and seeking to withdraw as counsel. Based on my independent review of the record and the issues raised in the petition, I agree that defendant’s petition is merit-less. No purpose would be served by further proceedings on defendant’s petition.

DISCUSSION

To be eligible for relief under the PCRA, a defendant must plead and prove by a preponderance of the evidence that: (1) he was convicted of a crime in Pennsylvania and currently serving a sentence of imprisonment, probation, or parole for the crime; (2) the conviction or sentence resulted from one of the enumerated errors listed under 42 Pa.C.S. §9543(a)(2); (3) the allegation of error has not been previously litigated or waived; and (4) the failure to litigate the issue prior to or during trial or on direct appeal could not have been the result of any rational or strategic decision by counsel. 42 Pa.C.S. §9543.

Here, defendant’s PCRA petition raises claims of ineffective assistance of counsel and prosecutorial misconduct. Specifically, defendant claims counsel was ineffective for failing to realize he is mentally challenged and illiterate. Defendant also claims prosecutorial misconduct for prosecuting a charge not supported by probable cause.

Counsel is presumed effective and a PCRA petitioner bears the burden of proving otherwise. Commonwealth v. Pierce, 515 Pa. 153, 158, 527 A.2d 973, 975 (1987). When a petitioner claims ineffective assistance of counsel, he must demonstrate: (1) the underlying claim is of arguable merit; (2) counsel’s performance was unreasonable; and (3) counsel’s ineffectiveness prejudiced the petitioner. Id. “[I]n order for a petitioner to properly raise and prevail on a layered ineffectiveness claim, sufficient to warrant relief if meritorious, he must plead, present, and prove the ineffectiveness of direct appellate counsel, which necessarily relates back to the actions of trial counsel.” Commonwealth v. Brown, 582 Pa. 461, 473-74, 872 A.2d 1139, 1146 (2005). (emphasis in original) (citation omitted)

Initially, the court notes that defendant apparently asserts ineffectiveness of all counsel; however, his petition neither properly develops such a claim for layered ineffective assistance, nor does it set forth the three-prong standard of Pierce as it relates to counsel’s performance. No relief is warranted for such undeveloped and bald assertions. Commonwealth v. Spotz, 587 Pa. 1, 99-100, 896 A.2d 1191, 1250 (2006) (boilerplate, undeveloped argument regarding ineffectiveness of prior counsel not sufficient to establish petitioner’s entitlement to PCRA relief). Additionally, the court’s independent review of this claim reveals it to be without merit. There is no support in the record that defendant is “mentally challenged”. (PCRApetition at 2.) During sentencing, defendant took the opportunity to speak. (N.T. sentencing, 8/24/06, at 3-4.) He explained the circumstances leading up to his imprisonment. (Id.) He explained that he left a halfway house out of fear of being locked up, but that he “messed up” and was “wrong” for leaving. (Id.) He responded appropriately to the court’s questions. He indicated that he understood his post-sentence rights. (Id.)

Also, defendant was interviewed in preparation of the pre-sentence investigation. The court’s review of the pre-sentence investigation reveals that defendant answered questions regarding his education and mental history. He indicated that he completed 10th grade, but was unable to read and write. While defendant said his mother suffered from mental health issues, the mental history section is devoid of any evidence of defendant himself having mental illness. He denied ever attempting suicide or being hospitalized for any mental illness. Further, there is nothing in the record which would have prompted counsel to investigate any mental illness. As defendant’s petition does not demonstrate how such alleged mental illness and illiteracy or counsel’s failure to investigate such illness prejudiced defendant and review of the record reveals no support for this claim, no relief is warranted.

Next, defendant claims that “prosecutorial vindictiveness and misconduct” (PCRA petition at 3) prejudiced him. Specifically, defendant cites to Pennsylvania Rules of Professional Conduct, Rule 3.8, requiring the prosecutor to refrain from prosecuting a charge he knows is not supported by probable cause. (Id. at 4.) Defendant then states that he did not intentionally cause injury to the officer. (Id.) Defendant’s citation to the rules of conduct is not relevant to the inquiry of his intent to cause injury which is essentially a sufficiency of the evidence claim. This issue was raised at the trial (N.T. trial, 6/6/06) and again on direct appeal. Thus, this claim was previously litigated and not cognizable under the PCRA.

Therefore, defendant fails to meet his burden of establishing entitlement to relief. I conclude there are no genuine issues concerning any material fact, the defendant is not entitled to post-conviction relief, and no purpose would be served by any further proceedings. Accordingly, I enter the following:

ORDER

And now, February 2, 2010, upon consideration of petitioner Lonnie A. Stewart’s petition for post-conviction collateral relief and Attorney R. Russell Pugh’s Finley letter, it is hereby ordered and decreed that:

(1) the petition is denied. The petitioner is hereby given notice that the court, pursuant to Pa.R.Crim.P. 907, intends to dismiss his post-conviction collateral relief petition without a hearing unless petitioner shall, within 20 days of the date of this order and notice, show good cause why the petition should not be dismissed; and

(2) R. Russell Pugh’s request to withdraw is granted.

      . Due to a clerical error, a previous Rule 907 opinion/order was filed; however, the opinion was written for a different docket number and is inapplicable to the instant PCRA petition before the court. Accordingly, the court strikes that opinion, filed on December 31,2009, and submits the instant amended Rule 907 opinion/order.

      . 18 Pa.C.S. §2703(a)(3).

      . 18P.S. §5503(a)(2).

      . Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); Commonwealth v. Finley, 379 Pa. Super. 390, 550 A.2d 213 (1988).

      . To the extent defendant claims prosecutorial misconduct based on the assistant district attorney lacking probable cause, the court notes that the record contains a signed affidavit of probable cause. (See police criminal complaint.) Detective John Wettlauefer, duly sworn and according to law, set forth the facts leading to defendant’s charges.


author: SPRECHER, J,

text:
    Penn Pride Inc. v. Torgro Limousine Inc.

      C.P. of Berks County,
    no. 08-15439.

      Robert P Dennison, for plaintiff.

      Daniel A. Mancini, for defendants.
    February 8, 2010
   SPRECHER, J,

Defendant appeals the order dated October 29, 2009, which denied defendant’s petition to open and strike confessed judgment. This opinion is filed pursuant to Pa.R.A.P. 1925.

FACTS

On November 20,2008, plaintiff, Penn Pride Inc., filed a complaint for confession of judgment in the above captioned case. It alleged that on April 26, 2008, defendants, jointly and severally, had entered into an agreement for a credit account whereby defendants could purchase fuel on credit at plaintiff’s fuel service stations. Plaintiff billed defendants on at least a semi-monthly basis. Defendant, John E. Groff Sr., had executed a personal guarantee for the debt and obligation incurred by defendant, Torgro Limousine Service, in the event that Torgro failed to pay its account. Defendants defaulted under the agreement. The balance due under the contract was $40,727.84 at the time the confession of judgment was filed.

On July 16, 2009, defendant filed a petition to open judgment and to strike the default judgment. Defendant claimed that the complaint confessing judgment had never been served on him. He contended that on December 18,2008, plaintiff had filed a complaint alleging the same damages under docket no. 08-16071 which had been served on him on February 3,2009. A default judgment had been entered against defendant in that case due to defendant’s failure to plead. Defendant had filed a petition to open that judgment which this court had granted. During the oral argument held on that petition on June 11,2009, plaintiff’s counsel referenced the confessed judgment that was entered against defendant in this case. Defendant maintains in his petition to open the confessed judgment that he did not realize that there had been a confessed judgment in the instant case.

Defendant accepted the “notice of judgment and execution thereon” which was served by certified mail on February 4,2009. Defendant contends in his petition that he recalled receiving this notice, but he did not understand that it belonged to this case. He believed that it belonged to the other case because he had been served with the complaint in that case the previous day. Defendant contends that he has a meritorious defense to the default judgment because he did not execute the personal guarantee. He also opines that he filed the petition to open promptly within the time of his notice of the confessed judgment on June 11, 2009.

At the hearing on defendant’s petition, defendant testified that he had been concerned with Torgro’s bankruptcy proceedings so he had not paid too much attention to the legal documents that he had received. Torgro was declared bankrupt on October 1, 2008. Defendant had given the notice of judgment to one of his attorneys, probably the attorney for the bankruptcy case. He had customarily given any legal documents to his attorneys, including in-house counsel for Torgro. In-house counsel may have also represented defendant personally in the past. Defendant acknowledged that the in-house counsel wrote to plaintiff’s attorney requesting information about the account at his request. This letter was dated October 1, 2008. Defendant also knew about the payments to plaintiff because he checked Torgro’s books.

Based on the foregoing evidence, this court entered the order that defendant now appeals.

ISSUES

Defendant raises seven errors in his concise statement of errors complained of on appeal.

(1) Whether this court erred in ignoring the evidence that defendant did not execute the personal guarantee containing the confession of judgment which would require the issues to be submitted to a jury and require the opening of the confessed judgment pursuant to Pa.R.C.P. 2959(e).

(2) Whether this court erred in ignoring the evidence that defendant could not have intelligently and voluntarily entered into the contract containing the confession of judgment language which would require the issue to be submitted to a jury and require the opening of the confessed judgment pursuant to Pa.R.C.P. 2959(e).

(3) Whether this court erred in ignoring evidence that demonstrated that defendant did not waive the constitutional right to a hearing at which the creditor would have the burden of proving the debt before the judgment was entered against him.

(4) Whether this court erred in not opening the confessed judgment due to the failure of plaintiff and/or the court to serve defendant with the complaint prior to judgment being entered.

(5) Whether this court erred in ignoring evidence that demonstrated that there were compelling reasons for the delay in filing the petition to open and/or strike confessed judgment that would allow the opening of the judgment pursuant to Pa.R.C.P. 2959(3).

(6) Whether this court erred in ignoring evidence that demonstrated that the contract containing the confession of judgment language with the personal guarantee purported to be executed by defendant was forged.

(7) Whether this court erred in ignoring evidence that demonstrated that defendant met the requirements of Pa.R.C.P. 2959 for the opening of the confessed judgment.

DISCUSSION

This court shall first address the issue of plaintiff’s failure to serve defendant with the complaint prior to the entry of the judgment. This issue is without merit.

The sheriff attempted service of the complaint for the confession of judgment on Torgro at its last known address. This service was not effectuated. However, the docket is silent whether defendant was served at his residence. According to the certificate of addresses provided by plaintiff, defendant was to be served at 1721 49th Street, Pennsauken, NJ 08110. This address is defendant’s present address and he has received mail there as is shown by the certified receipt for the service of the notice of the judgment and execution. Thus, defendant presumably received service of the complaint.

Even assuming arguendo that defendant did not receive service of the complaint for the confession of judgment, it is uncontroverted that defendant received the notice under Pa.R.C.P. 2958.1 of the judgment and execution thereon by certified mail on February 4,2009, because he signed for it. This date is the material date for determining if defendant timely filed his petition to open the confessed judgment in the case sub judice.

A petitioner requesting the opening of a confessed judgment must act promptly and must aver a meritorious defense in his petition to open. Hellam Township v. DiCicco, 287 Pa. Super. 227, 429 A.2d 1183 (1981). Defendant contends that he filed as soon as he had knowledge that a judgment was entered against him. He maintains that he first discovered at another court proceeding on June 11, 2009, that a judgment had been entered against him in this case. This assertion, however, is not supported by the record. Defendant received notice of the entry of the judgment by certified mail on February 4, 2009. Defendant, himself, signed for the document. Defendant testified that he had just assumed that it had been related to his other case and had given it to one of his attorneys without reading it.

In an analogous case, The First National Bank of Allentown v. Stoudt, 237 Pa. Super. 238, 352 A.2d 162 (1975), the appellant claimed a lack of notice when she had received notice, but had chosen not to open it and read it. The Superior Court held that the appellant could not assert lack of notice when she had received notice but had chosen not to read it. In the case sub judice, this court found that defendant had received notice on February 4, 2009, and voluntarily chose not to read it. Therefore, this court determined that defendant’s petition to open was untimely.

The determination of whether defendant possesses a meritorious defense is not necessary because defendant did not promptly file his petition to open. Even assuming arguendo that defendant had acted promptly, this court would not have found that defendant had a meritorious defense. Defendant asserts that he did not sign the personal guarantee in the confession of judgment and that it was forged. This court did not find defendant’s testimony credible. When questioned by opposing counsel defendant either did not know or did not remember what he had done.

Defendant was the president of his own company. He presumably ran the company and made the ultimate decisions in its operations. He admitted that he inspected the books and was aware that payments were being made to plaintiff. It is inconceivable that if defendant had not executed the agreement and confession or had not authorized the confession, that he would not have questioned the basis of the payments and demanded to see the agreement. Defendant had in-house counsel available to review contracts. Therefore, this court found that, at the very least, defendant had authorized the account and had known about the confession even if he had not personally signed the confession. Hence, defendant did not have a meritorious defense.

In accordance with the foregoing opinion, this court submits that defendant did not meet the requirements of Pa.R.C.P. 2959 for the opening of a confessed judgment and that the order of this court should be affirmed.