author: MINORA, J,

text:
    Scott Township Sewer and Water Authority v. Ease Simulation

      David J. Tomaine, for plaintiff.

      John J. Brazil Jr., for defendant.
    October 30, 2009
   MINORA, J,

I. INTRODUCTION

This case was commenced by Scott Township Sewer and Water Authority (STSWA) for the collection of unpaid charges for water, sewer, and fire protection fees.

Ease Simulation Inc, the defendant, has challenged the fee imposed by STSWA for both water usage and fire protection services. The defendant challenges STSWA’s fees on two grounds. The first is whether the rates charged by the STSWA are reasonable as required by the Pennsylvania Municipality Authorities Act? The second is does the STSWA’s system provide an appropriate service to the defendant’s property in the event of a fire?

The undersigned presided over a one-day non-jury trial on June 25, 2009. The parties have agreed to and submitted a stipulation of facts to the court. The parties have also submitted the deposition of William Karam, and expert reports regarding the fire protection fee. Richard Wilbur was the only witness to testify at the non-jury trial, and he testified on behalf of the defendant. Both parties have provided the court with post-trial briefs. We now consider the matter ripe for disposition and the rendering of a non-jury opinion as per Pa.RX.P. 1038. With that in mind, we submit the following.

II. FINDINGS OF FACT

The findings of facts in this case as determined by the court are supported by the credible, probative and relevant evidence established during the hearing and the submissions of the parties, and accepted as true by the court.

(1) Stipulation of facts by the parties.

(a) The sewer authority’s present adopted rate structure and the rate structure in effect at the commencement of this litigation is a “combined rate” which encompasses both water and sewer service and the availability of water for fire protection purposes.

(b) $ 147.16 of the monthly fee charged by the STSWA represents the fire protection portion of the rate.

(c) The defendant’s average monthly water usage for the period of January 1,2007 through July 31,2007 was 3,429 gallons per month.

(2) The defendant, Ease Simulations Inc., is being charged a base sewer and water fee rate of $750 per month, which includes the first 20,000 gallons of water used/consumed.

(3) STSWA is providing sufficient amounts of water to meet the water needs of the defendant.

(4) STSWA is able to meet the projected future water needs of the defendant if they were to increase.

(5) STSWA’s fire protection system is fully functioning. Expert report of Dennis Kutch P.E.

(6) STSWA’s fire hydrants locations, while not ideal, do not disqualify them from providing the defendant with adequate fire protection.

(7) STSWA’s fire hydrants meet the standards required to provide fire protection to the defendant.

III. LEGAL ISSUES

This case involves two legal issues. The first is whether the rates charged by the STSWA are reasonable as required by the Pennsylvania Municipality Authorities Act? The second is does the STSWA’s system provide an appropriate service to the defendant’s property in the event of a fire? Each of these issues will be addressed individually in the subsequent analysis.

IV. LEGAL ANALYSIS

Section 5607(d) of the Municipality Authorities Act states:

“(d) Powers. — Every authority may exercise all powers necessary or convenient for the carrying out of the purposes set forth in this section, including, but without limiting the generality of the foregoing, the following rights and powers:
“(9) To fix, alter, charge and collect rates and other charges in the area served by its facilities at reasonable and uniform rates to be determined exclusively by it for the purpose ofproviding for the payment of the expenses of the authority, the construction, improvement, repair, maintenance and operation of its facilities and properties and, in the case of an authority created for the purpose of making business improvements or providing administrative services, a charge for such services which is to be based on actual benefits and which may be measured on, among other things, gross sales or gross or net profits, the payment of the principal of, and interest on, its obligations and to fulfill the terms and provision of any agreements made with the purchasers or holders of any such obligations, or with a municipality and to determine by itself exclusively the services and improvements required to provide adequate, safe and reasonable service, including extensions thereof, in the areas served. . . (emphasis added) 53 Pa.C.S. §5607(d)
“Section 5607(d) of the Municipality Authorities Act requires that a municipality’s rates be ‘reasonable and uniform.’ 53 Pa.C.S. §5607(d). This standard mandates that rates be reasonably proportional to the value of the service rendered. Hamilton’s Appeal, 340 Pa. 17, 16 A.2d 32 (1940); Township of Kennedy v. Ohio Valley General Hospital, 129 Pa. Commw. 494, 566 A.2d 348 (1989) (sewer system rates based strictly upon consumption were equitably proportioned); Brandywine Homes v. Caln Township Municipal Authority, 19 Pa. Commw. 193, 339 A.2d 145 (1975) (was not an abuse of discretion for Township to set a minimum quarterly rate for each private home for that home’s use of sewage collection facilities).” Western Clinton County Municipal Authority v. Estate of Rosamilia, 826 A.2d 52, 57 (Pa. Commw. 2003).

The Pennsylvania Commonwealth Court, in Allegheny Ludlum Corporation v. Municipal Authority of Westmoreland County, 659 A.2d 20, 26 (Pa. Commw. 1995), articulated the standard of review for a challenge to a municipal authorities rate structure. The Commonwealth Court stated:

“In deciding whether a rate is reasonable, the trial court’s scope of review is limited to determining whether there has been a manifest and flagrant abuse of discretion or an arbitrary establishment of the rate system. ... The party challenging the validity of the rate has the burden of proving that it is unreasonable.... Whether a rate is reasonable is dependent upon whether it is reasonably proportional to the value of the service rendered. ... ‘That the court might have a different opinion or judgment in regard to the action of the agency is not a sufficient ground for interference; judicial discretion may not be substituted for administrative discretion.’” (citations omitted) (emphasis added)

A. Whether the Rates Charged by the STSWA Are Reasonable As Required by the Pennsylvania Municipality Authorities Act?

In determining whether a user met its burden of proving that water rate system was unreasonable, court was bound to look not only to the use of the challenged service, but also to its value, there being a requirement of reasonable relation to value of service rendered either as actually consumed or as readily available for use. Ridgeway Township Municipal Authority v. Exotic Metals Inc., 88 Pa. Commw. 637, 641, 491 A.2d 311, 313 (1985), see also, Washington Realty Co. Inc. v. Municipality of Bethel Park, 937 A.2d 1146, 1149-50 (Pa. Commw. 2007).

“[Rjates need not be proportioned with exactness to use made or the cost to the individual customer, so long as it is reasonably related to the cost of maintaining the service for all the customers, and the customers challenging the rates receive ‘some’ benefit from the system.” Ack v. Carroll Township Authority, 661 A.2d 514, 518 (Pa. Commw. 1995). The mere fact that a parcel of property is connected to a sewage system provides value to the premises. Washington Realty Co. Inc., 937 A.2d at 1149.

It is the conclusion of this court that STSWA’s rate structure is reasonable. The defendant, Ease Simulations Inc., is being charged a base sewer and water fee rate of $750 per month, which includes the first 20,000 gallons of water used/consumed, and the defendant only uses on average 3,429 gallons of water per month.

In Ridgway, the Commonwealth Court upheld a decision by the lower court finding that the base rate charged by the municipal authority was unreasonable. 88 Pa. Commw. 637, 491 A.2d 311. In that case the municipal authority set its base rate at 50 EDUs (a measurement of usage, 1EDU equaled 4,000 gallons). The record showed that the user’s average monthly usage was 12 1/2 EDUs. In that case the trial court determined the base monthly rate was unreasonable and ordered the base monthly rate be set at 16 EDUs. The Commonwealth Court upheld the trial court’s order and reasoning. Id.

In the Ridgway case, prior to the rate reduction by the trial court, the user was using 25 percent of the water they were being charged for in the base rate, 12 1/2 is 25 percent of 50. After the rate reduction by the trial court, the user was using 78.125 percent of the water they were being charged for in the base rate, 12.5 is 78.125 percent of 16. In the present case the defendant is using 17.145 percent of the water they are being charged for in STSWA’s base rate, 3,429 is 17.145 percent of 20,000. At first glance STSWA’s base rate appears to be unreasonable, based on the Ridgway figures, but the Ridgway case is clearly distinguishable.

As the Ridgway case states, the court is bound to look not only to the use of the challenged service, but also to its value, there being a requirement of reasonable relation to value of service rendered either as actually consumed or as readily available for use. 88 Pa. Commw. at 641, 491 A.2d at 313. The trial court in Ridgway decided the rate was unreasonable based on the fact that the municipal authority was not the primary service provider (the user was because they had to drill their own system of deep wells), and that the municipal authority had not been able to maintain sufficient volume nor uninterrupted service. The trial court found the service rendered by the municipal authority to be supportive and standby in nature, and therefore determined that a base rate of 16 EDTJs was more reasonable and proper.

In the Ridgway case, the municipal authority was not able to meet the water needs of the user, which prompted the user to install a system of deep wells which decreased the user’s consumption of water. Further, the Commonwealth Court noted that if the water needs of the user increased in the future the authority would not be able handle this increase without a “bigger pump”. 88 Pa. Commw. at 640 n.4, 491 A.2d at 313 n.4.

Therefore, the Ridgeway case is distinguishable from the case sub judice. STSWA is the primary and only provider of sewer and water service to the defendant. It has not been alleged or proven that the STSWA is unable to handle an increase in water consumption by the defendant. When taking into consideration the use, water actually consumed, and the value of the readily available services, as well as the sewage service and availability of fire suppression, it is the conclusion of this court that the base rate charged by STSWA is reasonable.

STSWA is providing the defendant with a sufficient amount of water to meet their present needs and has the ability to continue to provide increased volumes of water to the defendant if their future needs increase. The case law directs us to analyze not only the water being consumed by the user but the water potentially available to the user. As such, we conclude there is not manifest abuse of discretion and therefore the water and sewer rate charged by STSWA is reasonable and uniform as required by 53 Pa.C.S. §5607(d) of the Municipality Authorities Act.

B. Does the STSWA’s System Provide an Appropriate Service to the Defendant’s Property in the Event of a Fire?

One element of the sewer and water fee charged by STSWA to the defendant is a fire protection fee. The defendant has challenged the reasonableness of this fire protection fee, which is $ 147.16 of the base monthly rate of $750. The defendant has challenged the reasonableness of this fire protection fee on the ground that the tire protection infrastructure is not readily available to the defendant.

The defendant presented evidence through the testimony of Richard Wilbur (an employee and minority shareholder of Ease Simulations Inc.) and an expert report of David Wilbur. The gist of this testimony was that the two fire hydrants, which STSWA has stated would be used to prevent or contain a fire in the event that one occurred, are inadequate for the job and unreasonably located so that they could not be utilized by emergency crews. Further David Wilbur, defendant’s expert and a firefighter, concludes that the large pond located directly across from the defendant’s building should be the preferred fire suppression water source, indicating that none of the fire hydrants would need to be used.

However, the contradictory expert reports of Dennis Kutch, P.E. indicate that the system is fully functioning and that the location of the fire hydrants are acceptable. He indicates that the system would adequately provide fire protection to the defendant.

It is the conclusion of this court that the fire protection fee is reasonable. The fire protection infrastructure is readily available to the defendant and would adequately provide fire protection to the defendant. The fact that the defendant feels there would be a better or less expensive system which could be utilized is irrelevant, as the system in place and service provided by STSWA is fully functioning and capable of performing its designated purpose.

NON-JURY VERDICT PER PA.R.C.P. 1038

And now, October 30, 2009, the following non-jury verdict is rendered pursuant to Pa.R.C.P. 1038:

Judgment is hereby entered in favor of the plaintiff, The Scott Township Sewer and Water Authority of Scott Township, and against the defendant, Ease Simulation Inc. d/b/a Ease Diagnostics, in the amount of $16,800.


source: Caselaw Access Project

author: RUEST, J,

license: Public Domain

text:
    Lawrence v. Walker

      William G. Tressler and J Michael Dorezas, for plaintiff.

      David D. Engle, for defendant Walker.

      Kathleen V. Yurchak, for defendants Carter, Klug, Saadi, Rod and Straight.

      David F. Wilk, for defendant McCann.

      Virginia B. Eisenstein, for defendant APS.
    September 11, 2009
   RUEST, J,

Presently before the court are defendant McCann’s motion for summary judgment on the second amended complaint; defendant Walker’s motion for summary judgment on the second amended complaint; plaintiff’s motion for partial summary judgment on the second amended complaint against defendants Walker, McCann and Klug; defendants Carter, Klug, McCann, Saadi, Rod and Straight’s motion for summary judgment on the second amended complaint; defendant American Philatelic Society’s motion for summary judgment on the second amended complaint; and counterdefendant’s motion for summary judgment on the second amended counterclaim.

BACKGROUND

This case arises out of the 2007 election of officers for the American Philatelic Society (APS). The plaintiff ran unsuccessfully for the presidency, and had previously run unsuccessfully for president in 1997. Plaintiff is also active in the American Philatelic Research Library (APRL).

PROCEDURAL HISTORY

Plaintiff initiated this cause of action by filing a writ of summons on October 9,2007. This writ was followed by a complaint filed on December 5, 2007. Upon the filing of preliminary objections by defendants, plaintiff filed his first amended complaint on January 7, 2008. Defendants subsequently filed preliminary objections to the first amended complaint, which resulted in the filing of the second amended complaint. Preliminaiy objections were again filed by all defendants, and the court ruled on them on June 12, 2008. Defendants Carter, Klug, McCann, Neil, Saadi, Rod and Straight filed an answer and counterclaim to the second amended complaint on September 18, 2008.

DISCUSSION

In Pennsylvania, motions for summary judgment are governed by the well-established standard set forth below:

“Pennsylvania law provides that summary judgment may be granted only in those cases in which the record clearly shows that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. The moving party has the burden of proving that no genuine issues of material fact exist. In determining whether to grant summary judgment, the trial court must view the record in the light most favorable to the non-moving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Thus, summary judgment is proper only when the uncontroversial allegations in the pleadings, depositions, answers to interrogatories, admissions of record and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. In sum, only when the facts are so clear that reasonable minds cannot differ, may a trial court properly enter summary judgment.” Barnish v. KWI Building Company, 916 A.2d 642, 645 (Pa. Super. 2007).

Rule 1035.2 of the Pennsylvania Rules of Civil Procedure provides that where the non-moving party bears the burden of proof, that party must present facts sufficient to establish aprima facie case. Pa.R.C.P. 1035.2(2). Mere issues of fact are insufficient to defeat the motion. The non-moving party must produce admissible evidence to controvert the motion. Id. In support of a motion for summary judgment, the moving party may show that the non-moving party is unable to satisfy an element of his cause of action or defense. First Pennsylvania Bank N.A. v. Triester, 251 Pa. Super. 372, 380 A.2d 826 (1977).

I. Defendant McCann’s Motion for Summary Judgment on the Second Amended Complaint

The basis for plaintiff’s claim of defamation against defendant McCann is that defendant McCann advised plaintiff, prior to the 2007 APS election, that defendant McCann had heard that plaintiff, if elected, would fire APS Executive Director Peter C. Mastrangelo. Defendant McCann does not deny having this conversation with plaintiff. In Count 1 of his second amended complaint, plaintiff asserts that defendant McCann made the statement with full knowledge that it was false and with reckless disregard of whether it was true or false. Plaintiff has produced no evidence to support these allegations. Plaintiff’s testimony makes it clear that defendant Mc-Cann shared this allegation with plaintiff as a rumor defendant McCann had heard and was relating to plaintiff. There is no evidence that defendant McCann continued to discuss the rumor after plaintiff assured him it was false.

Defendant McCann argues, in the alternative, that plaintiff is a limited purpose public figure. Defendant McCann cites plaintiff’s voluntary involvement in the discussion of issues involving APS management, including the Match Factory purchase, and running for president of the APS on two separate occasions. As a limited purpose public figure, plaintiff would need to allege and prove that the allegedly defamatory statements he is attributing to Dr. McCann were made with actual knowledge that they were false or with reckless disregard of whether they were false or not. New York Times Co. v. Sullivan, 276 U.S. 254, 279-80 (1964). A defamatory statement is one that tends to blacken a person’s reputation and expose them to public hatred, contempt or ridicule. Tucker v. Philadelphia Daily News, 577 Pa. 598, 614, 848 A.2d 113, 124 (2004). It is not enough that a person be embarrassed or annoyed, he must have suffered the kind of harm which has grievously fractured his standing in the community of respectful society. Id. The court determines plaintiff is a public figure for the limited purpose of the APS and its election. In light of this determination, the court further finds no evidence has been presented to show that defendant McCann acted with the requisite malice for defamation.

II. Defendant Walker’s Motion for Summary Judgment on the Second Amended Complaint

Plaintiff’s claims of defamation against defendant Walker arise from a campaign letter sent to approximately 38,000 APS members by defendant Walker. The basis for plaintiff’s claims are defendant Walker’s criticism of plaintiff for his role in relocating APS headquarters to the Match Factory and defendant Walker’s criticism of plaintiff’s political writings. Defendant Walker was highly critical of plaintiff’s chairmanship of the committee that sought a new home for APS and that ultimately recommended the Match Factory location. Defendant Walker was particularly critical of plaintiff’s cost estimates. Plaintiff alleges these criticisms were defamatoiy.

As previously stated, “[l]ibel is the malicious publication of printed or written matter which tends to blacken a person’s reputation and expose him to public hatred, contempt, or ridicule.” Tucker v. Philadelphia Daily News, supra. To be actionable, the plaintiff “must have suffered the kind of harm which has grievously fractured his standing in the community of respectable society.” Id

The passage in defendant Walker’s April 23, 2007 campaign letter dealing with plaintiff’s political philosophy stated as follows:

“On another note, I would like to suggest that you search the internet for the following ‘Ken Lawrence + communism’ and ‘KenLawrence + anarchist’. My search came up with 520,000 hits. These included blogs and chat rooms with contributions signed by candidate for APS President Ken Lawrence using his well-known email address. Do your own reading and make your own decision.”

Plaintiff must show that this passage was defamatory. 42 Pa.C.S. §8343(a)(l).

Plaintiff cannot.

Plaintiff has argued that since recipients of defendant Walker’s mailing may have viewed the statements about communism and anarchism as defamatory, they must be defamatory. The test is not, however, whether some recipient of the communication thinks it is defamatory. The test is whether the court, after considering the writing and its circumstances, determines that it was capable of a defamatory meaning. Tucker v. Philadelphia Daily News, supra.

Describing someone’s political philosophy is not defamatory. Rybas v. Wapner, 311 Pa. Super. 50, 55, 457 A.2d 108, 110 (1983); see also, Raible v. Newsweek Inc., 341 F. Supp. 804, 807 (W.D. Pa. 1972). Accusations of communist associations or “communist tendencies” are not libelous. Clark v. Allen, 415 Pa. 484, 496, 204 A.2d 42, 48 (1964); McAndrew v. Scranton Republican Publishing Co., 364 Pa. 504, 513-14, 72 A.2d 780, 784 (1950). In Clark, the court stated:

“Americans sincerely and sharply disagree as to what actions and/or words and/or policies aid the communist cause, or what show communist tendencies, or what amounts to an ‘appeasement’ of communism, or what is a ‘pro-communist,’ or exactly what is meant by the term ‘soft on communism.’ While these words . . . often are undoubtedly intended to be derogatory, they are not libelous.” 415 Pa. at 495, 204 A.2d at 47.

The McAndrew court held that “[t]o say a man is a communist or a socialist is not to defame him.” 364 Pa. at 514, 72 A.2d at 784.

A number of cases previously held it was defamatory to call someone a communist, but they no longer have any legal force. They were decided in a time when communism was illegal, starting with the Federal Communist Control Act in 1954 until Blawis v. Bolin, 358 F. Supp. 349 (D. Ariz. 1973) in 1973, which ruled the Act was unconstitutional. For example, in Solosko v. Paxton, 4 D.&C.2d 240 (Somerset Cty. 1954), a statute made it a felony to be a communist so an accusation of being a communist was an accusation of being a criminal and was therefore defamatory. Similarly, accusations of anarchism or of being an anarchist are incapable of defamatory meaning. The court determines defendant Walker’s statements regarding communism and anarchism were incapable of defamatory meaning.

Defendant Walker further argues that the statements are true. Truth is a defense to an action for defamation. 42 Pa.C.S. 8343(b)(1). Truth is established if a defendant shows that the alleged libel was substantially true. Schnabel v. Meredith, 378 Pa. 609, 612, 107 A.2d 860, 862 (1954); Chicarella v. Passant, 343 Pa. Super. 330, 341, 49 A.2d 1109, 1115 (1985).

Defendant Walker argues that plaintiff is amarxist, or at least subscribes to the tenets and beliefs of marxism. Evidence has been presented to show that plaintiff agrees with statements in the Communist Manifesto and other writings of Karl Marx. Plaintiff told at least three APS members that he was a communist and one person even refers to him as “Red”. Plaintiff has also been a prolific writer, penning the introduction for a printing of A Workers ’Inquiry by Marx, various articles for marxist websites and communist newspapers, and even a presentation at a conference entitled “Proceedings of the Caucus for Marxism and Art.”

Regarding the allegation that plaintiff is an anarchist, while plaintiff has not been as open about any affiliations with anarchists, his works have been distributed by anarchist organizations and he has presented nothing to dispute defendant Walker’s allegation that plaintiff also subscribes to anarchist beliefs. The evidence clearly shows that defendant Walker’s comments in the campaign letter regarding plaintiff, communism and anarchism were or are substantially true. They are therefore not actionable.

Defendant Walker also argues that the campaign letter’s references to the building project were true. Defendant Walker alleged that the APS faced serious financial challenges, noting that the new building cost three times more than it was supposed to cost, that the old building was sold for half of what it was supposed to bring in, and the APS then had its largest debt in its history. Defendant Walker’s letter stated that he “personally [held] [plaintiff] Lawrence and [Robert] Lamb responsible for this bungled mess.” He then stated that their actions appeared to him to be gross negligence. Plaintiff took umbrage at the accusation of negligence, but disputed little in this passage. He does not dispute the debt level or being in charge of the project.

The allegation that the project was going to cost three times the proposed cost was substantially true. The APS Board of Directors met on August 23,2000, where Robert Lamb informed the board it would cost $4.7 million to refurbish the exterior of all of the buildings except the block warehouse. The APS board met again on January 18, 2001, at which time Dennis Gilson, the APS’ building project manager, informed the board that the cost to rehab the entire property, including the block warehouse, would be about $6,000,000. The ultimate cost of the work was about $15,000,000. Clearly plaintiff had made and endorsed statements placing the construction costs at approximately one-third of the actual costs.

The allegation that the sale of the former APS building only brought in half of what it was supposed to bring in was also substantially true. Defendant Walker cites an email sent to the APS and APRL boards, as well as to Robert Lamb, in which plaintiff stated he had a firm $3.9 million offer for the old building from Harvey Abrams, who headed a nonprofit corporation planning a sports and Olympics museum. The building ultimately sold for around $2,000,000.

The allegation that the APS then had its largest debt in its history was not contested by plaintiff. Plaintiff only contests the allegation of negligence. This was only an opinion, however, and is not actionable.

III. Defendants Carter, Klug, McCann, Saadi, Rod and Straight’s Motion for Summary Judgment on the Second Amended Complaint

Counts 4, 5, 6, 7 and 8 of plaintiff’s second amended complaint arise from an advertisement and website referred to by all parties as the “Elephant ad.” In each of the counts, the complaint alleges that by maliciously publishing false statements, defendants Saadi, Rod, Straight and Carter intentionally damaged plaintiff’s good name and reputation. Defendants argue the Elephant ad and websites are political expressions protected by the First Amendment. Defendants further argue plaintiff has failed to produce evidence that any of the documents are false or that any of the defendants acted with actual malice.

As noted above, truth is a defense in a lawsuit for libel. Truth does not need to be absolute; it is sufficient to show that the alleged libel was substantially true. Schnabel v. Meredith, 378 Pa. 609, 612, 107 A.2d 860, 862 (1954). Plaintiff disputes very little of the content of the Elephant ad and the websites. The court determines defendants have shown that the Elephant ad and the websites are substantially true and contain no outright false statements.

Furthermore, the content of the ads is protected political speech and is not capable of defamatory meaning. After reviewing the material in question in context, Corabi v. Curtis Publishing Co., 441 Pa. 432, 444-45, 273 A.2d 899, 906 (1971), and considering the nature of the audience receiving the communication, the court determines the material is not capable of defamatory meaning. Vigorous campaign rhetoric does not give rise to a defamation claim. Clark v. Allen, supra.

As noted above, plaintiff was a limited-purpose public figure. As such, he is required to present evidence of actual malice. Plaintiff has been unable to show actual malice. The court requires clear and convincing evidence that the defendants knew their statements were false or that they entertained serious doubts about the truth of their statements and proceeded anyway. Curran v. Philadelphia Newspapers Inc., 316 Pa. Super. 508, 513, 546 A.2d 639, 642 (1988); New York Times, supra. Plaintiff is unable to do so. Additionally, the court has determined the statements were substantially true.

In Count 3 of the second amended complaint, plaintiff alleges defendant Carter made false statements about plaintiff to a friend and colleague, Dr. Charles M. Posner. Plaintiff specifically alleges defendant Carter asked Dr. Posner whether plaintiff had fled Mississippi to East Germany for refuge by the communist government, where he worked as a Stasi agent. Dr. Posner debunked this rumor for defendant Carter, who then dropped the matter.

Dr. Posner was the only recipient of defendant Carter’s communication. As he already knew it was false, there was no defamation. Defendant Carter merely asked a question of his friend and colleague, Dr. Posner, seeking confirmation or refutation of the rumor which had been circulating about plaintiff. Such a question, particularly in light of its answer and its limited audience, is incapable of defamation.

In Count 11 of the second amended complaint, plaintiff alleges that defendant Klug failed to perform her fiduciary duties as president of APS. Specifically, plaintiff alleges defendant Klug failed to implement the policy adopted by the APS Board of Directors in 2004 to assure that APS elections would “maintain a high level of civility in all aspects of campaigning” and failed to appoint an Election Ethics Board.

Defendant Klug argues she is protected from liability as an uncompensated officer of a 501(c)(3) organization. APS is a 501(c)(3) organization. To perfect liability against defendant Klug, plaintiff must prove that she knew or had reason to know that her act or omission created a substantial risk of actual harm to the person or property of another. 42 Pa.C.S. §8332.2(a). Plaintiff has failed to produce such evidence.

IV. Defendant American Philatelic Society’s Motion for Summary Judgment on the Second Amended Complaint

In Count 4 of the second amended complaint, plaintiff alleges the APS published an advertisement in its magazine, American Philatelist, which was defamatory. The advertisement was printed during the course of the 2007 election campaign. The standard for defamation has been discussed above. As regards a publisher, plaintiff must show that the publisher entertained serious doubts about the truth of the publication and published it anyway. Weaver v. Lancaster Newspapers Inc., 875 A.2d 1093, 1097 (Pa. Super. 2005); Curtis Publishing Co. v. Butts, 338 U.S. 130, 153 (1967). The standard ofproof is clear and convincing evidence. New York Times v. Sullivan, supra.

The APS is a corporation and as such cannot possess malice since it cannot know verity or falsity. See St. Amant v. Thompson, 390 U.S. 727, 730-31 (1968). It must act through the individuals in its organization responsible for making such determinations and decisions. The court must therefore look to the individual who had actual knowledge of the advertisement and who vetted it for publication. That individual is Executive Director Peter Mastrangelo.

Plaintiff has presented no evidence to indicate Mr. Mastrangelo entertained any doubts about the truth of the publication. As discussed above, the allegations in the ad were substantially true. Mr. Mastrangelo had no reason to entertain any doubts. Mr. Mastrangelo did, however, investigate the statements in the ad. He found them to be truthful and approved publication.

In Count 11 of the second amended complaint, plaintiff alleges the APS failed to meet its fiduciary duty to plaintiff. Defendant APS maintains it owed no fiduciary duty to plaintiff as a fiduciary duty is that which is owed by a board member to the organization, and not owed by the organization to a member.

Furthermore, plaintiff has admitted he has suffered no loss of income or earnings as a result of the acts alleged to have occurred. Plaintiff names only the costs of his election campaign as damages. Plaintiff cannot present any evidence to show that, but for the action and inaction of the APS, he would have won the election and that a properly appointed Election Ethics Board would have resulted in a different outcome to the election.

Defendant APS also argues that 42 Pa.C.S. §5524 sets the statute of limitations for actions to recover damages to person or property based on negligent, intentional, or otherwise tortious conduct at two years. Likewise, 42 Pa.C.S. §5523 sets the statute of limitations period for libel, slander or invasion of property at one year. Additionally, defendant APS argues the doctrine of accord and settlement bars recovery as plaintiff agreed to a settlement under which an ethics complaint was withdrawn and all parties signed a letter to be published in the American Philatelist. Finally, defendant APS argues plaintiff has failed to exhaust his administrative remedies within APS as required by the APS bylaws.

The court determines these grounds do not need to be addressed at length as summary judgment is clearly appropriate based on the lack of evidence. Nonetheless, the court determines all four of these additional grounds are a valid basis for granting summary judgment.

V. Plaintiff’s Motion for Partial Summary Judgment on the Second Amended Complaint

Plaintiff filed a motion for partial summary judgment on the second amended complaint. Relative to defendant Walker, plaintiff requested that the court find several facts relating to the purchase and renovation costs of the Match Factory to be without controversy pursuant to Pa.R.C.P. 1035.5. Rule 1035.5 requires the court to “make an order specifying the facts that are without controversy” if partial summary judgment is granted. Because the court is denying plaintiff’s motion for partial summary judgment, and is granting the defendants’ motions for summary judgment in their entirety, such an order does not need to be entered.

Plaintiff also seeks partial summary judgment against defendant Carter as to Count 3. Specifically, plaintiff brings his motion under Pa.R.C.P. 1035.2(1), seeking to have paragraphs 119, 120, 121 and 125 of the second amended complaint deemed admitted pursuant to Pa.R.C.P. 1029(b) (averments not specifically denied are deemed to be admitted). Because the court is granting the defendants’ motions for summary judgment in their entirety, the court declines to deem the specified paragraphs as admitted.

Finally, plaintiff seeks partial summary judgment against defendant Klug as to Count 11. The court discussed the evidence relative to plaintiff’s claims against defendant Klug in section III, above.

VI. Counterdefendant’s Motion for Summary Judgment on the Second Amended Counterclaim

In Count 1 of the second amended counterclaim, counterclaimants allege that the filing of the underlying lawsuit by counterdefendant constituted an abuse of process. Counterdefendant maintains counterclaimants cannot establish a valid cause of action for abuse of process. “An abuse of process arises when a party employs legal process for some unlawful purpose, not the purpose for which it was intended.” Triester v. 191 Tenants Association, 272 Pa. Super. 271, 279, 415 A.2d 698, 702 (1979). Counterdefendant presents the basis for his defamation claim in the second amended complaint. He reproduces and cites the statements that he claims are defamatory and by whom they were made.

“To establish a claim for abuse of process it must be shown that the defendant (1) used a legal process against the plaintiff; (2) primarily to accomplish a purpose for which the process was not designed; and (3) harm has been caused to the plaintiff.” Harris v. Brill, 844 A.2d 567, 572 (Pa. Super. 2004). Counterclaimants are unable to substantiate their claim that counterdefendant pursued any unlawful purpose in filing the second amended complaint.

In Count 2 of the second amended counterclaim, counterclaimants allege counterdefendant breached a contract, based on a letter signed by counterdefendant, counterclaimants, and several other individuals, regarding the resolution of an ethics complaint involving the Elephant ad. Counterclaimants allege the agreement prohibited the filing of the underlying suit. Counterdefendant maintains the signed letter was not a contract.

“[T]he formation of a contract requires a bargain in which there is a manifestation of mutual assent to the exchange and consideration.” Restatement (Second) of Contracts §17(1) (1979). When there is lack of manifested intent or consideration, a contract does not exist. Estate of Beck, 489 Pa. 276, 414 A.2d 65 (1980). The letter signed by the parties does not contain any indication that it is a contract. It does not articulate intent or consideration on the part of any of the signatories. There is no bargained-for exchange. There is no exchange of promises. The court determines the letter is just a letter and is not a contract.

Additionally, the court determines counterclaimants Klug, McCann and Walker were not parties to the letter, which they styled as a contract, and therefore have no cause of action against counterdefendant for breach of contract.

In Count 3 of the second amended counterclaim, counterclaimants allege counterdefendant made a misrepresentation by signing the letter. Counterdefendant maintains this letter did not preclude him from litigating the defamation actions alleged to have occurred prior to the signing of the letter.

The tort of misrepresentation consists of making a misrepresentation of fact, opinion, intention or law, for the purpose of inducing another to act or refrain from action and the reliance upon it. Restatement (Second) of Torts §525. The court finds nothing in the text of the letter by which counterdefendant agreed not to pursue litigation. The letter states the signatories will work together to ensure civility in elections and to reform the election process within the APS.

In Count 4 of the second amended counterclaim, counterclaimants allege negligence by counterdefendant for his alleged failure to oversee the promulgation of election rules while an officer of APS prior to the 2007 election. Counterdefendant maintains there is no cause of action for negligence based on economic loss.

Counterclaimants make no claim of physical injury or property damage due to the alleged negligence. The doctrine of economic loss precludes any action for negligence stemming from purely economic damages. Adams v. Copper Beach Townhome Communities L.P., 816 A.2d 301, 305 (Pa. Super. 2003). Accordingly, their claim for negligence cannot succeed.

The court additionally determines that, just as defendant Klug owed no fiduciary duty to plaintiff, counter-defendant owed no such duty to counterclaimants.

In Count 5 of the second amended counterclaim, counterclaimants allege defamation by libel by counter-defendant for comments he made regarding the commitment of APS board members to following the election policy rules. Counterdefendant maintains his published comments lacked defamatory meaning.

In the statement, counterdefendant stated that the majority of the APS board did not share the goals of preventing smearing in APS elections and that they repealed provisions of the election policy that would prevent such campaigning. Counterdefendant notes that he did not single out any one specific person and argues that he was expressing his opinion based on the actions of the board members.

Additionally, just as counterdefendant is a limited-purpose public figure, so are the APS board members. They are officers in a private organization with over 44,000 members, publish regularly, and are very much thrust into the center of the election controversy by virtue of their role in setting the rules by which ethics and civility are to be governed in APS elections. Therefore, as discussed above, counterclaimants must show malice on the part of counterdefendant. They cannot do so.

In Count 6 of the second amended counterclaim, counterclaimants allege defamation by libel by counter-defendant for comments he posted on the APS Internet forums. Counterdefendant expressed the opinion that certain individuals’ “priorities flow from the elite perspective.” Counterclaimants argue this is defamatory. The court determines it is not.

Accordingly, the following is entered:

ORDER

And now, September 11, 2009, the following is the order of the court:

(1) Defendant McCann’s motion for summary judgment on the second amended complaint is granted.

(2) Defendant Walker’s motion for summary judgment on the second amended complaint is granted.

(3) Defendants Carter, Klug, McCann, Saadi, Rod and Straight’s motion for summary judgment on the second amended complaint is granted.

(4) Defendant American Philatelic Society’s motion for summary judgment on the second amended complaint is granted.

(5) Plaintiff’s motions for partial summary judgment on the second amended complaint are denied.

(6) Counterdefendant’s motion for summary judgment on the second amended counterclaims is granted.

The second amended complaint is dismissed.

The second amended counterclaims are dismissed.


author: LIEBERMAN, J,

text:
    Commonwealth v. Balsavage

      Kelly Kline, assistant district attorney, for Commonwealth.

      Osmer S. Deming, for defendant.
    August 11, 2009
   LIEBERMAN, J,

On May 23, 2005, the defendant entered guilty pleas to eight counts of sexual abuse of children. At the guilty plea hearing the defendant admitted to taking pornographic pictures of his ex-girlfriend’s 2-year-old son. The photographs, which were taken with an instant camera for the purpose of the defendant’s sexual stimulation, depicted the child’s genitals, and in some of the pictures, a hand could be seen demonstrating that the defendant was posing the child. After the photos were discovered, the defendant admitted, “They’re my pictures. I whack off to them.” (N.T. guilty plea hearing, 5/23/05 at 3-4.) On September 13,2005, the defendant was sentenced by the Honorable Jeffrey K. Sprecher to a term of nine to 23 months of incarceration, followed by seven years of probation.

The defendant failed miserably in his attempts to comply with the terms of his probation; and as a result, a warrant was issued for his arrest on April 7, 2006. A Gagnon II hearing was held on May 31, 2007, and the defendant was subsequently sentenced to a term of three and one-half to seven years of incarceration, followed by 42 years of probation. The defendant then filed an appeal with the Pennsylvania Superior Court, which affirmed his judgment of sentence on March 12,2008. The defendant did not seek review in the Pennsylvania Supreme Court. Thereafter, on August 8, 2008, the defendant timely filed a pro se petition pursuant to the Post Conviction Relief Act. Osmer S. Deming, Esquire, was appointed to represent the defendant, and on April 7, 2009, Attorney Deming filed an amended petition alleging that the defendant was denied his right to allocution during the May 31,2007 sentencing hearing. After thorough consideration of the record, this court agreed and therefore granted the defendant’s amended petition.

On May 27, 2009, the defendant appeared before this court for resentencing. After speaking on his own behalf at the hearing, the defendant also answered a number of questions posed to him. Based upon what transpired at the sentencing hearing, the defendant was sentenced to an aggregate term of 24 1/2 to 49 years of incarceration in a state correctional facility. Subsequently, the defendant filed a post-sentence motion on May 29,2009, which was denied on June 15, 2009. Then, on June 18, 2009, the defendant filed a notice of appeal to the Pennsylvania Superior Court. On June 22,2009, this court directed the defendant to file a concise statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). The defendant complied with this court’s order on July 8,2009. In his appeal, the defendant alleges the following errors:

“(1) Did the trial court error [sic] in punishing the defendant because the defendant asked for a re-sentencing to exercise his right of allocution under Pa.R.Crim.P. 708(c)(1)?
“(2) Did the trial court violate the defendant’s due process rights by basing the increase in sentence on the fact that the defendant had previously filed appeals of the trial court’s previous decisions?
“(3) Did the trial court violate the defendant’s rights against self-incrimination by cross-examining the defendant after the defendant exercised his right to allocution and using admissions gained in this cross-examination as a basis for increasing the defendant’s sentence?
“(4) Did the trial court violate the defendant’s rights by concluding that there was new information available at the May 27,2009 resentencing when such information was previously of record and testified to by witnesses at the May 31, 2007 Gagnon II hearing?” (Concise statement of errors complained of on appeal, July 8, 2009.)

SENTENCING

Three of the issues raised by the defendant are related to sentencing and can properly be summarized as claims of excessiveness of sentence. “Imposition of a sentence is vested in the discretion of the sentencing court and will not be disturbed absent a manifest abuse of discretion.” Commonwealth v. Walls, 592 Pa. 557, 564, 926 A.2d 957, 961 (2007). “An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill will, or such lack of support as to be clearly erroneous.” Id. “The rationale behind such broad discretion and the concomitantly deferential standard of appellate review is that the sentencing court is ‘in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it.’” Id. at 565, 926 A.2d at 961. Furthermore, “[t]he general rule in Pennsylvania is that in imposing a sentence, the court has [the] discretion to determine whether to make it concurrent with or consecutive [with] other sentences then being imposed____” Commonwealth v. Graham, 541 Pa. 173, 184, 661 A.2d 1367, 1373 (1995).

42 Pa.C.S. §9721(b), which governs the standard to be applied at sentencing, provides that “the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.” In the instant case, after thoroughly considering a pre-sentence investigation report, the sentencing guidelines, and other factors of record, this court sentenced the defendant to a term of incarceration that it believes best complies with the aforementioned principle.

Specifically, the defendant admitted to masturbating while looking at parenting magazines and watching child-birthing films. The defendant also stated that there have been 13 total victims of his abuse, both male and female, and that 10 of the children were 5 years of age or younger at the time of the offenses, with the youngest being 1 year old. The sexual contact included fondling the genitals, digital penetration, performing and receiving oral sex, exposing the victims to pornography, manufacturing pornography and vaginal intercourse. The defendant admitted that he refused to cooperate with the Sexual Offender Assessment Board after initially pleading guilty, and also admitted his predilection for masturbating while smelling used diapers, the technical terms for which are coprophilia and urophilia. Because the defendant only said that it was alleged that he once described a fantasy, inspired by the Amish schoolhouse murders, of breaking into a daycare facility, raping the children, and then killing them as well as himself, this court did not take that into consideration.

While it is true that much of this information was available at the defendant’s May 31, 2007 sentencing hearing, this court was unable to question the defendant directly at that time concerning the allegations. Given the defendant’s admissions, his poor history of complying with treatment, his extremely high risk of recidivism, as well as the assessment that rehabilitation is not an option given the defendant’s deviancies, this court concluded that nothing short of total incarceration for the maximum period of time permissible by law could ensure the safety of our society’s most vulnerable members, namely infants and toddlers who have no way to cry out or protect themselves. There was no abuse of discretion.

SELF-INCRIMINATION

Finally, the defendant alleges that this court violated his right against self-incrimination by “cross-examining” him after he exercised his right to allocution. “The Fifth Amendment provides, in pertinent part, that no person ‘shall be compelled in any criminal case to be a witness against himself.’” Commonwealth v. Shrawder, 940 A.2d 436, 440 (Pa. Super. 2007). This protection “applies not only at criminal trials, but in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate the defendant in future criminal proceedings.” Id. Flowever, the Pennsylvania Superior Court has held that a defendant waives any right against self-incrimination at a sentencing hearing if, after conferring with an attorney, he supplies information “in the absence of judicial threat of contempt or threat of imposition of a harsher sentence for failing to cooperate.” Commonwealth v. Allen, 340 Pa. Super. 189, 201, 489 A.2d 906, 912 (1985).

In the instant case, after consulting with competent counsel and with said counsel standing at his side, the defendant elected to testily on his own behalf at sentencing. The defendant then, in the complete absence of any threat, answered questions posed by this court concerning reports prepared during the course of his sex offender therapy that had been submitted to the probation and parole department. Accordingly, this allegation of error lacks merit.

For the aforementioned reasons, we respectfully request that the defendant’s appeal be denied.


author: LASH, J,

text:
    Mastercraft Woodworking Company v. Jim Lagana Plumbing & Heating Inc.

      Susan J. Wall, for plaintiff.

      Maura Zajac McGuire, for defendants.
    July 27, 2009
   LASH, J,

The matter before this court is the motion of defendants, Jim Lagaña Plumbing & Heating Inc., and Lagaña Construction Services (collectively Lagaña defendants), for partial summary judgment. Lagaña defendants challenge the second amended complaint of plaintiff, Mastercraft Woodworking Company Inc., on three bases. First, they contend that Mastercraft cannot recover under Counts IV and IX alleging violations of the Contractor and Subcontractor Payment Act (CSPA), 73 P.S. §501 et seq., because the contract between the parties was for a public works project and therefore, the CSPA is inapplicable or preempted by the Pennsylvania Public Works Procurement Act (Procurement Code), 62 Pa.C.S. §3901 et seq. Secondly, they urge that Counts V and X, alleging claims under the Procurement Code, cannot be maintained because those counts first appear in the second amended complaint, which was not filed within the time set by the applicable statute of limitations. Finally, the request for attorney’s fees set forth in Counts I, II, III, VI, VII, and VIII of the second amended complaint must be stricken because these counts raise common-law causes of action and there is no legal or contractual basis for recovery of attorney’s fees. Argument was held on July 20, 2009. For reasons set forth herein, this court grants the motion, dismissing Counts IV, V, IX, and X of the second amended complaint, and striking the request for attorney’s fees in Counts I, II, III, VI, VII and VIII.

According to Mastercraft’s second amended complaint, Lagaña defendants entered into a contract with the Bloomsburg Area School District to act as general contractor for “multi-prime public school renovation projects” for two elementary schools. Lagaña defendants then entered into two written contracts with Mastercraft, dated May 16,2003, referred to as purchase order number 42731 and purchase order number 42735, providing that Mastercraft would perform subcontracting work on the projects. Under the contracts, Mastercraft would perform manufacture, fabrication, supply and installation of casework and tack board.

Mastercraft alleges that it satisfied its contractual obligations under both contracts, entitling it to full payment but has only received partial payment from Lagaña defendants. Accordingly, on or about July 21, 2004, Mastercraft filed suit against Lagaña defendants and Zurich North America Surety and Financial Claims claiming Lagaña defendants were liable under several common-law counts of breach of contract, unjust enrichment, and quantum meruit, as well as violations of the CSPA. Mastercraft sought damages under purchase order number 42731 in the amount of $143,102.95 and under purchase order number 42735 in the amount of $110,475.57.

On or about August 30, 2004, Mastercraft filed an amended complaint, alleging the same causes of action. The case then proceeded through the pleadings and discovery stages. In due course, on November 5, 2008, Lagaña defendants filed their first motion for partial summary judgment. In response, counsel for Mastercraft requested and received consent from counsel for Lagaña defendants to file a second amended complaint and in exchange, Lagaña defendants withdrew their motion for partial summary judgment.

Mastercraft filed its second amended complaint on November 13, 2008. In addition to the counts previously pleaded, Mastercraft added two new counts, Counts V and X, alleging that Lagaña defendants violated the Procurement Code. Under these amendments, Master-craft now sought damages of $163,952.95, plus $23,160 in “additional damages, interest, penalties, costs of suit, counsel fees and expenses” for purchase order number 42731 and $139,475.57, plus $24,420 in “additional damages, interest, penalties, costs of suit, counsel fees and expenses” on purchase order number 42735.

After pleadings were closed, Lagaña defendants filed the within motion for partial summary judgment, raising, as stated, three issues. First, since the projects called for renovations of two elementary schools, the projects were “public works projects” and as such, the CSPA is inapplicable. According to Lagaña defendants, the Procurement Act is the appropriate remedy on breach of contract claims involving public works projects, and preempts the CSPA on the within matter.

Secondly, Lagaña defendants argue that the claims raised under the Procurement Code are “bad faith claims” and as such are subject to the two-year statute of limitations set forth in 42 Pa.C.S. §5524(7). Alternatively, Lagaña defendants maintain that even if a four-year statute of limitation applies, as urged by Mastercraft, that the cause of action accrued more than four years prior to the filing of the second amended complaint. Finally, Lagaña defendants argue that Mastercraft failed to aver any material facts which, if proven, would establish bad faith.

The third issue is a challenge to Mastercraft’s request for attorney’s fees as damages on the breach of contract, unjust enrichment, and quantum meruit claims. Lagaña defendants point out that the contract between the parties did not provide for attorney’s fees in the event of a breach. Further, there is no statutory authority for imposition of attorney’s fees under these circumstances.

In response, Mastercraft argues that the CSPA is applicable in cases involving contracts between a contractor and a subcontractor, irrespective of whether the project involves public works. Mastercraft also contends that the Procurement Code is not foreclosed by the applicable statute of limitations because a four-year statute applies, and the cause of action did not accrue until November 16, 2004. Prior to that time, Mastercraft could not be paid because of an outstanding issue involving liquidated damages with the school district, which was finally resolved on November 16,2004 with the signing of a settlement agreement and release. Further, allegations of bad faith do not have to be pleaded to obtain relief under the Procurement Code. Regarding attorney’s fees, Mastercraft points to the statutory provisions for attorney’s fees under the CSPA and the Procurement Code as a basis for seeking attorney’s fees under each of the counts of the second amended complaint.

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, 230, 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, 145, 615 A.2d 303, 304 (1992).”

We address first the viability of Counts IV and IX of the second amended complaint, which requests recovery under the CSPA. As stated, Lagaña defendants argue that both counts should be stricken because the CSPA is preempted by the Procurement Code and because, by its own terms, the CSPA is inapplicable in this case. In support, Lagaña defendants cite the Northampton County case of Hoffmeister v. Skepton Construction Inc. and United States Fidelity & Guaranty Company, 55 Northampton Cty. Rep. 46 (2006) (Giordano, J), a case which addresses the issue squarely and makes findings consistent with their position.

On the preemption issue, the Northampton County court found that while both Acts address similar concerns, the two Acts have conflicting provisions which cannot be reconciled. The CSPA is written in general terms, while the Procurement Code, which was enacted later, specifically addresses contracts involving public works projects. In determining that it would be improper to apply both statutes and that the Procurement Code is the appropriate remedy, the court stated:

“The court here concludes that these Acts cannot be reconciled such that both would apply to the instant matter. Both Acts regulate the realm of payments by a general contractor to a subcontractor. Both Acts provide for interest and penalties in the event of late payments. However, the Acts differ as to the acts triggering the penalty, inasmuch as the [Procurement Code] requires bad faith and arbitrary, or vexatious, withholding of payment. It is not reasonable that the General Assembly intended to regulate conduct with two different requirements for the same entitlement to a penalty for a contractor’s late payment to a subcontractor. The General Assembly does not intend a result that is unreasonable. 1 Pa.C.S. §1922. Therefore, the court must conclude that the [Procurement Code], being the more specific statute, and enacted later in time than the CSPA, applies to the instant matter and not the CSPA, being the more general statute involved.”

The court also ruled that in construction contract disputes, where the owner of the premises is a school district, the CSPA is not applicable because the Act can only be applied to matters where the work is being performed on premises owned by a “corporation, partnership, business trust, other association, estate, trust foundation or a natural individual.”

In response, Mastercraft notes that the purpose of the CSPA is to provide prompt payment protection to contractors and subcontractors in construction contracts. Imperial Excavating and Paving LLC v. Rizzetto Construction Management Inc., 935 A.2d 557 (Pa. Super. 2007). Accordingly, as the within dispute is between a contractor and a subcontractor and does not involve the owner; whether the owner is a government agency, such as a school district, is not germane. Imperial also involved a nonpayment dispute between a subcontractor and a contractor for work performed on a school project. In that case, the plaintiff subcontractor was permitted to recover under the CSPA. See also, Net Construction Inc. v. C & C Rehabilitation & Construction Inc., 256 F. Supp.2d 350 (E.D. Pa. 2003), involving a claim by a subcontractor against a contractor for payments owed on a public housing project.

Mastercraft also believes that a government agency does fall within the definition of “owner” under the CSPA, citing the federal case of Scandale Associated Builders & Engineers Ltd. v. Bell Justice Facilities Corp., 455 F. Supp.2d 271 (M.D. Pa. 2006). That case involved work performed on a government owned prison camp. The court ruled that the term “other association” was ambiguous and the federal government could arguably fall within the definition of owner/person.

In making our determination, we observe well-established standards of statutory construction. “[Sjtatutes or parts of statutes that relate to the same persons or things or to the same class of persons or things are to be construed together, if possible .... Moreover, individual provisions of a statute should not be read in the abstract, but ‘must be construed with a view to its place in the entire legislative structure of the [statute].’” Casiano v. Casiano, 815 A.2d 638, 642 (Pa. Super. 2002) (citation omitted), reargument denied, appeal denied, 574 Pa. 745, 829 A.2d 1156 (2003).

Further, “[wjhere the general provisions of one statute conflict with the specific provisions of another statute, the two statutes must be construed to give effect to both unless the conflict is irreconcilable, in which case specific provisions govern general provisions as long as the general provisions were not enacted after the specific provisions and the General Assembly did not clearly indicate that the general provisions be given priority over the specific provisions.” Commonwealth v. Henderson, 444 Pa. Super. 170, 186-87, 663 A.2d 728, 736 (1995). (citations omitted)

The two statutes are similar, founded on the same general purpose, to ensure prompt payment to contractors and subcontractors for work performed on construction contracts. For our purposes, the key distinction involves the availability of the CSPA to cases involving many different types of owners, in contrast to the Procurement Code, which is more specific in nature, limited to contracts entered into by a government agency.

Integral to our analysis is a comparison of the penalty and attorney’s fee provisions in the respective statutes. Section 512 of the CSPA mandates a penalty of 1 percent per month of the amount wrongfully withheld once it is proven that the defendant failed to comply with the payment terms of the Act. Further, attorney’s fees “shall be” awarded to the prevailing party.

Section 3935 of the Procurement Code, enacted subsequent to the CSPA, sets forth phraseology which mirrors much of section 512, it appearing that the General Assembly utilized section 512 as a template in drafting section 3935. However, there are several distinctions, evidencing a different legislative intent for section 3935. For one, the word “may” is substituted for the word “shall” regarding the authority of the tribunal to award penalties or attorney’s fees. This evidences the clear intent that imposition of a penalty or award of attorney’s fees under the Procurement Code is permissible, but not mandatory, in contrast to the CSPA, where no discretion is prescribed. Secondly, under the Procurement Code, before penalties or attorney’s fees can be imposed, the tribunal must make a finding that the nonprevailing party acted “in bad faith.” No such requirement appears in the CSPA.

The only reason we can discern for the difference in language is that the General Assembly did not intend to mandate penalties and attorney’s fees against a governmental agency, as those additional damages would ultimately be paid by taxpayers. That purpose is defeated if school districts or other governmental agencies could be sued under the CSPA.

We find that the CSPA and the Procurement Code are not irreconcilable, that they can and should be read together, furthering the legislative intent of both. When so considered, it is apparent that actions involving governmental construction contracts must be brought under the Procurement Code. This resolves the conflict between the penalty/attomey’s fees subsections, protects taxpayers from being saddled with penalties and attorney’s fees due to the recalcitrance of a governmental agency, except in cases where the tribunal, at its discretion, deems it warranted, and provides cohesion and completeness to both statutes. Accordingly, we rule that Counts IV and IX of Mastercraft’s second complaint shall be dismissed.

Turning then to the Procurement Code issues, we initially reject Mastercraft’s contention that bad faith is not an element of Counts V and X of its second amended complaint. Section 3935 of the Procurement Code states:

“(a) Penalty. — If arbitration or a claim with the Board of Claims or a court of competent jurisdiction is commenced to recover payment due under this subchapter and it is determined that the government agency, contractor or subcontractor has failed to comply with the payment terms of this subchapter, the arbitrator, the Board of Claims or the court may award, in addition to all other damages due, a penalty equal to 1 percent per month of the amount that was withheld in bad faith. An amount shall be deemed to have been withheld in bad faith to the extent that the withholding was arbitrary or vexatious. An amount shall not be deemed to have been withheld in bad faith to the extent it was withheld pursuant to section 3934 (relating to withholding of payment for good faith claims).
“(b) Attorney fees. — Notwithstanding any agreement to the contrary, the prevailing party in any proceeding to recover any payment under this subchapter may be awarded a reasonable attorney fee in an amount to be determined by the Board of Claims, court or arbitrator, together with expenses, if it is determined that the government agency, contractor or subcontractor acted in bad faith. An amount shall be deemed to have been withheld in bad faith to the extent that the withholding was arbitrary or vexatious.”

While, arguably, relief under the Procurement Code could be limited to compensation and interest, the primary distinction between relief available under the Procurement Code and that of a breach of contract action are the penalty and attorney’s fees afforded to successful claimants when bad faith is established. These additional remedies appear to be the basis for Mastercraft filing Counts V and X.

In essence, Lagaña defendants’ argument is that Counts V and X are “bad faith claims,” statutory in nature, separate and distinct from the underlying contractual claims. As such, the claims would be considered torts, subject to the two-year statute of limitations set forth in 42 Pa.C.S. §5524(7).

In support, they rely on the analysis provided by the Pennsylvania Supreme Court in Ash v. Continental Insurance Company, 593 Pa. 523, 932 A.2d 877 (2007). In Ash, plaintiffs/appellants filed a complaint against defendant/appellee insurance company alleging a breach of contract for failing to pay a claim for fire damage to real property owned by plaintiffs/appellants. During the pendency of the action, plaintiffs/appellants filed a motion for leave to amend their complaint to include a claim against defendant/appellee under the Pennsylvania Bad Faith Insurance Statute, 42 Pa.C.S. §8371. This motion was denied by the trial court as untimely, based on its determination that the section 8371 bad faith claim is a “statutorily created tort action and is therefore subject to the two-year statute of limitations.”

Both the Superior Court and the Supreme Court affirmed the decision of the trial court. In its affirmance, the Supreme Court provided a thorough analysis on the treatment of bad faith actions. Among other things, the Supreme Court found that punitive damages are typically only awarded in tort actions and that bad faith actions are generally based upon a “standard of conduct imposed by society which is consistent with a tort claim,” citing D ’Ambrosio v. Pennsylvania National Mutual Casualty Insurance Company, 494 Pa. 501, 431 A.2d 966(1981).

The Supreme Court noted that under common law, parties to a contract were required to act in good faith. A breach of that duty constituted a basis for a breach of contract action. However, the remedy under that form of action was limited to damages permitted under the contract, i.e., compensatory damages. There was no separate tort remedy for a breach of an implied covenant of good faith and fair dealing. D ’Ambrosio, supra.

Apparently in response to the holding of D ’Ambrosio, the General Assembly enacted section 8371, specifically to provide a tort cause of action for bad faith. The enactment of section 8371 thereby created a remedy not previously established in Pennsylvania, and one which was separate and distinct from the contract action already available to the aggrieved party. Further, the court found that the enactment of section 8371 was in furtherance of public policy concerning the regulation of insurance carriers. As such, the duty under section 8371 is “one imposed by law as a matter of social policy, rather than one imposed by mutual consensus, and an action to recover damages for breach of that duty derives primarily from the law of torts.” Ash, supra at 535, 932 A.2d at 885. Accordingly, the Supreme Court found that an action under section 8371 is an action in tort subject to the two-year statute of limitations.

We perceive several distinctions between the provisions of section 8371 and the penalty provision of the Procurement Code. First, abad faith action under section 8371 is not related to nor dependent on the underlying contract claim, but is recognized as separate and distinct. Adamski v. Allstate Insurance Company, 738 A.2d 1033, (Pa. Super. 1999), appeal denied, 563 Pa. 655, 759 A.2d 381 (2000). In contrast, section 3935 of the Procurement Code requires an initial finding of a breach in the nature of noncompliance with payment terms before bad faith can be found or a penalty assessed. Similarly, attorney’s fees are only awarded after a party first prevails on the underlying action.

Secondly, section 8371 does not provide any limitation on the amount of punitive damages. This is in recognition that the award under section 8371 is punitive, to punish egregious behavior, not to award additional compensation. The Procurement Code, however, limits the penalty to 1 percent per month of the amount withheld in bad faith, plus attorney’s fees. As such, the Procurement Code appears to contemplate providing additional compensation in the nature of recoupment of attorney’s fees and the loss of the use of funds, and is not applied to simply impose punishment.

Third, the Procurement Code focuses on redress to an aggrieved party, not the furtherance of social policy by providing a deterrent to entities with financial or positional advantage from engaging in improper conduct or delays.

For these reasons, we find that the rationale applied by the Supreme Court in Ash cannot be extended to cases under the Procurement Code. We also find that the penalty and attorney’s fees provisions of the Procurement Code do not provide a separate claim under tort, but allow additional damages on a contractual claim initiated under its provisions. Accordingly, the statute of limitations for a breach of contract, four years, under 42 Pa.C.S. §5525, applies to Counts V and X of the second amended complaint.

That being said, we must nevertheless dismiss Counts V and X as untimely, based on the facts. Counts V and X are first raised in the second amended complaint, filed onNovember 13,2008. Mastercraft alleges that the cause of action did not accrue until November 16, 2004, because of an ongoing dispute between Lagaña defendants and the school district, with corresponding promises by Lagaña defendants to promise to pay the debt. Master-craft argues that the promise to pay the debt tolled the statute, based upon the holding of S. T. Hudson Engineers v. Camden Hotel Development Associates, 747 A.2d 931, 934 (Pa. Super. 2000).

In its brief, Mastercraft sets forth:

“[Lagaña defendants] correctly points out that Mastercraft first notified it of problems with partial payments, as well as other difficulties beginning in late 2003. In response to Mastercraft’s request for payment and concerns, [Lagaña defendants] asserted that payments were in jeopardy as a result of threats of liquidated damage claims from the school district and continued to promise payment once the liquidated damages were resolved. This is illustrated in several letters from James Lagaña and James Facciolla----In particular, in Mr. Facciolla’s Februaiy 5 letter, he notes that payment will be held until resolution of the noted issues. Additionally, Mr. Lagana’s February 11 letter specifically states that charges cannot be discussed in light of the liquidated damages claim of the school district.... The liquidated damages issues with the school district were not resolved until November 16,2004, with the signing of a settlement agreement and release.”

The aforesaid statements in Mastercraft’s brief belie the fact that it initially filed suit against Lagaña defendants on July 21, 2004. Although its claims under the Procurement Code were not included within the initial complaint, the complaint specifically sets forth that monies owed under purchase order number 42731 and purchase order number 42735 were due and owing to Mastercraft and that Lagaña defendants’ failure to pay same established a breach of contract. These factual averments, would qualify as the foundation for an action under the Procurement Code, were properly verified by Master-craft’s president, and constitute a statement that Master-craft believed its claims were ripe to proceed. Mastercraft cannot now assert that its causes of action under the Procurement Code did not accrue until November 16, 2004. For this reason, Counts V and X of the complaint shall be dismissed.

Likewise, the claims for attorney’s fees in Counts I, II, III, VI, VII, and VIII of the second amended complaint must be stricken. Lagaña defendants correctly point out that the contract between the parties does not provide that a breaching party be required to pay attorney’s fees. As there is no statutory or common-law authority to permit an award of attorney’s fees under these facts, the court shall strike the request for attorney’s fees contained within these counts.

We enter the following order:

ORDER

And now, July 27, 2009, upon consideration of the motion for partial summary judgment of defendants, Jim Lagaña Plumbing & Heating Inc. and Lagaña Construction Services, response thereto, briefs filed by the parties and after argument held, the motion is granted. Counts IV, V, IX, and X of the second amended complaint are dismissed. The request for attorney’s fees set forth in Counts I, II, III, VI, VII, and VIII are stricken.

      . Paragraph 8 of second amended complaint.

      . Purchase order number 42731 was for work performed on the Bloomsburg Memorial Elementary School and purchase order number 42735 was for work performed on the Bloomsburg WW Evans Elementary School.

      . The claims against Zurich are for violations of the Public Works Contractors’ Bond Law of 1967, 8 P.S. §191-202, matters which are not at issue in the within motion.

      . Paragraph 85 of Mastercraft’s second amended complaint.

      . Paragraph 122 of Mastercraft’s second amended complaint.

      . In section 502 of the CSPA, “owner” is defined as a “person who has an interest in the real property that is improved and who ordered the improvement to be made.” “Person” is defined as a corporation, partnership, business trust, other association, estate, trust foundation or a natural individual.

      . However, the Superior Court’s opinion did not weigh in on the issue at bar, whether the CSPA can be applied to actions involving public works contracts, which would imply that this issue was not raised in that case.

      . Plaintiff, Mastercraft Woodworking Company Inc.’s, brief in opposition to defendants, Jim Lagaña Plumbing & Heating Inc., and Lagaña Construction Services’ motion for partial summary judgment, pp. 12-13.


author: ASHWORTH, J,

text:
    Commonwealth v. Stockbauer

      Charles H. Rieck, assistant district attorney, for Commonwealth.

      Vincent J. Quinn, for defendant.
    July 23, 2009
   ASHWORTH, J,

William A. Stockbauer Jr., has filed an amended petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§9541-46. For the reasons set forth below, this petition will be denied following an evidentiary hearing in this case.

I. BACKGROUND

Petitioner was charged at criminal information no. 2182-2006 with robbery, criminal conspiracy, and violation of the Uniform Firearms Act. These charges were the result of an armed robbery of a deli in the City of Lancaster which netted petitioner and his accomplice $1,294. The robbery was captured on the deli’s surveillance video and petitioner was positively identified by one of the clerks through a photographic array.

After arraignment, petitioner tendered a straight guilty plea to these charges on November 14,2007, before the Honorable Michael A. Georgelis. After conducting an on-the-record colloquy, Judge Georgelis accepted the guilty plea and sentencing was deferred pending completion of a pre-sentence investigation report.

Petitioner stood for sentencing on April 7,2008, before the undersigned. At that time, petitioner received the following sentence: robbery, five to 10 years; criminal conspiracy, four to eight years; and firearms not to be carried without a license, two to four years. The robbery and criminal conspiracy sentences were ordered to run concurrently with each other but consecutive to the firearms offense, resulting in an aggregate period of incarceration of not less than seven nor more than 14 years.

At the conclusion of the sentencing hearing, this court informed petitioner of his rights to file post-sentence motions within 10 days and to file an appeal to the Superior Court of Pennsylvania within 30 days. (N.T., sentencing at 15.) Petitioner stated that he understood his rights. (Id.) Petitioner did not file post-sentence motions or a direct appeal. Petitioner was represented at the guilty plea hearing and the sentencing hearing by the Office of the Public Defender and, in particular, by David L. Blanck, Esquire.

On December 10,2008, petitioner, acting pro se, filed a motion to modify and reduce sentence nunc pro tunc, which this court treated as a petition under the PCRA. Pursuant to Rule 904(A) of the Pennsylvania Rules of Criminal Procedure, Vincent J. Quinn, Esquire, was appointed to represent Stockbauer on his collateral claims. Attorney Quinn filed an amended petition on February 3, 2009, alleging that Attorney Blanck was ineffective for failing to protect petitioner’s appeal rights. Petitioner alleged that he specifically requested that counsel file a direct appeal.

The Commonwealth replied to the amended petition on February 24,2009, and denied the allegations. FIowever, it conceded the necessity of an evidentiary hearing to elicit testimony from both petitioner and Attorney Blanck as to the legitimacy and veracity of petitioner’s claim that he requested an appeal be filed on his behalf.

On March 16, 2009, this court granted petitioner’s amended petition and granted petitioner leave to file a post-sentence motion, nunc pro tunc, and, if necessary, a direct appeal nunc pro tunc. On March 26, 2009, the Commonwealth filed a motion for reconsideration of the order granting post-conviction relief. In this motion, the Commonwealth claimed that it had been prejudiced by the reinstatement of petitioner’s direct appeal rights without benefit of an evidentiary hearing on the matter.

Accordingly, on April 16,2009, an order was entered granting the Commonwealth’s motion for reconsideration, vacating the order of March 16,2009, and scheduling an evidentiary hearing, by teleconference, for May 20,2009, which was ultimately rescheduled for June 18, 2009. Following receipt of the transcript from the evidentiary hearing, defense counsel filed a brief in support of the amended petition on July 14,2009. This matter is now ripe for disposition.

II. DISCUSSION

Petitioner claims that he is entitled to relief for the reason that he was denied the effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article V, Section 9 of the Pennsylvania Constitution. See 42 Pa.C.S. §9543(a)(2)(ii). See also, Commonwealth v. Wilkerson, 490 Pa. 296, 299, 416 A.2d 477, 479 (1980). In a collateral attack on the effectiveness of counsel, the courts presume counsel is effective and the petitioner has the burden of proving otherwise. Commonwealth v. Rios, 591 Pa. 583, 599, 920 A.2d 790, 799 (2007); Commonwealth v. Pond, 846 A.2d 699, 708 (Pa. Super. 2004).

To overcome this presumption, the petitioner must establish three factors: (1) the underlying claim has arguable merit; (2) counsel’s performance lacked a reasonable basis; and (3) the ineffectiveness of counsel caused the petitioner prejudice. Commonwealth v. Collins, 598 Pa. 397, 408-409, 957 A.2d 237, 244 (2008); see also, 42 Pa.C.S. §9543(a). The failure to satisfy any of these prongs will cause the entire claim to fail. Commonwealth v. Bridges, 584 Pa. 589, 596, 886 A.2d 1127, 1131 (2005).

In determining whether counsel’s action was reasonable, “we do not question whether there were other more logical courses of action which counsel could have pursued; rather, we must examine whether counsel’s decisions had any reasonable basis.” Commonwealth v. Washington, 592 Pa. 698, 712-13, 927 A.2d 586, 594 (2007). To demonstrate prejudice, the petitioner must show that there is a reasonable probability that “but for counsel’s error or omission, the result of the proceeding would have been different.” Collins, supra at 409, 957 A.2d at 244.

Here, petitioner charges trial counsel with ineffectiveness for failing to file a motion to modify sentence or notice of appeal as allegedly requested by petitioner. We begin our analysis by noting that the unjustified failure to file a requested direct appeal is ineffective assistance of counsel per se and that a defendant need not demonstrate his innocence or show that he likely would have succeeded on appeal in order to meet the prejudice prong of the test for ineffectiveness. Commonwealth v. Mikell, 968 A.2d 779, 781 (Pa. Super. 2009) (citing Commonwealth v. Lantzy, 558 Pa. 214, 218, 736 A.2d 564, 571 (1999) (“failing to file a requested direct appeal denies the accused the assistance of counsel and the right to a direct appeal, and the accused is entitled to reinstatement of his direct appeal rights”)). See also, Commonwealth v. Bath, 907 A.2d 619, 622 (Pa. Super. 2006); Commonwealth v. Johnson, 889 A.2d 620, 622 (Pa. Super. 2005).

However, before a court will find ineffectiveness of counsel for failing to file a direct appeal, a petitioner must prove that he requested an appeal and that counsel disregarded that request. Bath, supra at 622 (citing Commonwealth v. Knighten, 742 A.2d 679, 682 (Pa. Super. 1999) (holding that when a petitioner fails to meet his burden of proving that he asked counsel to file an appeal and that counsel disregarded that request, the post-conviction request for reinstatement of appellate rights must be denied)). A mere allegation will not suffice to prove that counsel ignored a petitioner’s request to file an appeal. Commonwealth v. Spencer, 892 A.2d 840, 842 (Pa. Super. 2006). Rather, the burden is on the petitioner to plead and present evidence to this court that he, in fact, requested counsel to pursue a direct appeal within the requisite time period and that the request was ignored or rejected by trial counsel. Commonwealth v. Collins, 546 Pa. 616, 622, 687 A.2d 1112, 1115 (1996); Commonwealth v. Harmon, 738 A.2d 1023, 1024 (Pa. Super. 1999). See also, Commonwealth v. Lehr, 400 Pa. Super. 514, 517, 583 A.2d 1234, 1235 (1990) (holding “[t]o successfully avoid a finding of waiver, the [post-conviction petitioner] must prove that he requested an appeal and that counsel disregarded the request”).

We find that petitioner has failed to meet his burden in this case. During the PCRA evidentiary hearing on June 18, 2009, Attorney Blanck testified that following the sentencing he met with his client and explained his post-sentence and appeal rights. (N.T., evidentiary hearing at 8.) Trial counsel denied that Stockbauer asked him to file a motion to modify sentence or a direct appeal when they spoke in the holding cell. (Id. at 8, 9.) However, Attorney Blanck did state that he told Stockbauer that “if he wished to appeal, he would need to notify [him] within 10 days.” (Id. at 8.) Petitioner did not contact counsel. (Id.)

Stockbauer testified at the evidentiary hearing that he “wasn’t very happy” with the seven-to-14-year sentence he received at the sentencing hearing on April 7, 2008. (N.T., evidentiary hearing at 12.) Petitioner stated that, after counsel explained the appeal process in the holding cell, he advised counsel that he wanted to appeal the sentence. (Id.) According to Stockbauer, trial counsel told him “he would be in touch.” (Id.) After this conversation, Stockbauer never heard anything further from counsel. (Id) Petitioner contends that despite his specific request, neither a post-sentence motion nor an appeal was filed by counsel.

Based upon the evidence presented, we cannot conclude that petitioner sustained his burden of proving that he requested Attorney Blanck to file an appeal on his behalf. While petitioner testified that he spoke with Attorney Blanck directly after sentencing regarding an appeal, Attorney Blanck’s testimony directly contradicts this. We find that petitioner did not demonstrate to his trial counsel that he was interested in appealing.

Moreover, the circumstances of this case suggest that a similarly-situated defendant would not be interested in appealing. A favorable plea agreement in the standard range of the Sentencing Guidelines was imposed, after counsel was able to secure an agreement with the Commonwealth that no mandatory sentence or enhancement with respect to the firearm would be sought. Petitioner’s guilt was certain and his prior record abominable. As noted by Attorney Blanck at the evidentiary hearing, petitioner was, and is still, suffering from cancer and was anxious to leave the county prison and start serving his state sentence so he could get medical care. Furthermore, petitioner waited more than eight months to complain about his sentence. Based upon this record, we find that petitioner has not satisfied his burden of pleading and presenting evidence to this court that he, in fact, requested counsel to pursue a direct appeal within the requisite time period and that the request was ignored or rejected because we find the facts and circumstances demonstrate Mr. Blanck to be the more credible witness.

This does not end our inquiry, however. Pursuant to Roe v. Flores-Ortega, 528 U.S. 470 (2000), as applied in Commonwealth v. Touw, 781 A.2d 1250 (Pa. Super. 2001), counsel has a constitutional duty to adequately consult with a defendant about the advantages and disadvantages of an appeal where counsel has reason to think either “(1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.” Touw, 781 A.2d at 1254 (quoting Roe, 528 U.S. at 480). The failure to consult may excuse the defendant from the obligation to request an appeal, such that counsel could still be found to be ineffective in not filing an appeal even where the defendant did not request the appeal. Bath, 907 A.2d at 623 (citing Roe, 528 U.S. at 480, 484; Touw, 781 A.2d at 1254).

In the instant case, there is no question that trial counsel consulted with petitioner before and after sentencing to explain his appeal rights, as required by Roe, supra, and Touw, supra. Attorney Blanck explained to petitioner the advantages and disadvantages of taking an appeal and what appealable issues existed. Specifically, counsel identified only three issues they could raise on appeal following the guilty plea: (1) whether the court lacked jurisdiction; (2) whether the guilty plea was knowing, voluntary and intelligent; and (3) whether the sentence was legal. (N.T., evidentiary hearing at 7, 8.) Consequently, we find that counsel’s consultation with petitioner did not constitute deficient performance.

In conclusion, from our evaluation of credibility and accepting trial counsel’s testimony at the evidentiary hearing, we find that petitioner did not specifically request or instruct his trial counsel to file a post-sentence motion or an appeal. Moreover, we find that defense counsel satisfied his constitutionally-imposed duty to consult with his client about an appeal.

III. CONCLUSION

Based on the evidence presented at the PCRA hearing on June 18, 2009, we must conclude that Stockbauer’s claim of ineffective assistance does not warrant relief. Thus, for the reasons set forth above, petitioner’s PCRA amended petition will be denied.

Accordingly, I enter the following:

ORDER

And now, July 23,2009, upon consideration of William A. Stockbauer’s amended petition for post-conviction collateral relief and after a hearing on the petition, it is hereby ordered that said petition is denied.

Pursuant to Pa.R.Crim.P. 907(4), this court advises petitioner that he has the right to appeal from this order. Petitioner shall have 30 days from the date of this final order to appeal to the Superior Court of Pennsylvania. Failure to appeal within 30 days will result in the loss of appellate rights.

      . 18 Pa.C.S. §3701 (A)(l)(iii), 18 Pa.C.S. §903(A)(1), 18 Pa.C.S. §6106(A)(1), respectively.

      . Judge Georgelis retired from the bench in December 2007, and the matter was reassigned.

      . The Commonwealth did not invoke any mandatory or enhancement for the use of a deadly weapon because of petitioner’s cooperation in prosecuting the co-defendant in this case. (N.T., sentencing at 5, 11-12, 16.)

      . The Pennsylvania Constitution Article V, Section 9 guarantees: “There shall be a right of appeal in all cases to a court of record from a court not of record; and there shall also be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court, the selection of such court to be provided by law; and there shall be other such rights of appeal as may be provided by law.”

      . With regard to his criminal history, petitioner self-reported that, while in his mid-teens, he was convicted of criminal conspiracy to commit burglary. His probation was terminated when he was 17 in order for him to be eligible for admittance into the United States Navy. Three years later, in 1977, petitioner received an “undesirable discharge” from the Navy because of his drug use. As an adult, his theft and bad check charges started in 1979. Petitioner’s sentencing in April 2008 marked his 29th appearance before the court, including 13 prior court appearances for probation/parole violations. (N.T., sentencing at 10-11.) Moreover, petitioner owes approximately $14,000 in fines, costs and restitution, resulting from his significant prior criminal record, both in Lancaster and Chester counties.

      . It was not any of these issues which petitioner raised in his pro se motion to modify sentence but rather a discretionary aspect of sentencing claim. Specifically, petitioner sought to argue that the failure of the court to run his sentences concurrently was so “manifestly excessive” as to constitute an abuse of discretion. Long-standing precedent recognizes that 42 Pa.C.S. §9721 affords the sentencing court discretion to impose its sentence concurrently or consecutively to other sentences being imposed at the same time or to sentences already imposed, upon consideration of the individual circumstances concerning the defendant and the many crimes he committed. See for example, Commonwealth v. Diaz, 867 A.2d 1285, 1288 (Pa. Super. 2005); Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004), aff’d, 586 Pa. 142, 891 A.2d 1265 (2006). It is clear that in fashioning this sentence the court did consider the individual circumstances concerning petitioner and the crimes he committed. As noted at the sentencing hearing, the court took into account the following factors: petitioner’s age (50); his extensive criminal record, which began when he was 17 years of age; his educational background; his military service; his alcohol and substance abuse history, starting with his use of marijuana at the age of 15, cocaine at age 20, and later methamphetamine and heroin; his limited employment history due to his drug addictions and frequent incarcerations; his medical histoiy, particularly his cancer diagnosis and treatment; his rehabilitative needs; his letter to the court; and the entire pre-sentence investigation report. (N.T., sentencing at 7-11.) Based upon the individual circumstances concerning this defendant and the crimes he committed, the sentence imposed was not so manifestly excessive as to constitute too severe a punishment. See Commonwealth v. Mouzon, 571 Pa. 419, 430-31, 812 A.2d 617, 625 (2002). Thus, petitioner’s sole potential appellate issue lacked merit.

      . We note that where the PCRA court’s determination of credibility is supported by the record, it will not be disturbed on appeal. See Commonwealth v. Clark, 599 Pa. 204, 217, 961 A.2d 80, 87 (2008) (citing Commonwealth v. Abu-Jamal, 553 Pa. 485, 514, 720 A.2d 79, 93 (1998) (“Where . . . there is record support for a PCRA court’s credibility determinations, we, as a reviewing court, are bound by those determinations”)). See also, Harmon, supra.