text:
    Estate of Thomas

      C.P. of Philadelphia County, O.C.
    No. 1460 DE of 2013
    May 12, 2014
   HERRON, J.,

Introduction

The petition filed by the granddaughter of decedent Elaine Thomas raises the issue of whether decedent’s will created a trust that qualifies as the beneficiary Ms. Thomas designated to receive her life insurance proceeds. According to a representative of the Federal Employee Group Life Insurance Program, Ms. Thomas designated the “trustee(s) or successor(s) as provided in last will” as the beneficiary of her life insurance policy. Although this insurance company representative concluded that Ms. Thomas’s will did not create the designated beneficiary, upon review of the will and controlling precedent that opinion is without merit. For the following reasons, the will of Elaine Thomas creates a trust that manifests her clear intent that her insurance proceeds should be distributed to Ashley Super, “as executor of my estate and insurance” so that Ms. Super can distribute the proceeds in accordance with Article 3 of the will.

Factual Background

Elaine B. Thomas died on December 30, 2012 leaving a Will dated July 18, 2012. In Article 1 of her Will, Elaine Thomas states that “I appoint Ashley Super, my granddaughter, as executor of my estate and insurance.” After bequeathing her personal belongings at 2113 Walnut Lane to her two children, Keenya Banks-Bryant and Troy Thomas, Ms. Thomas set forth an elaborate scheme of outright gifts and trusts to relatives and friends in Article 3 of her Will. Significantly, Article 3 specifically references her life insurance policy which Ms. Thomas wished to distribute as detailed in that Article:

Article 3: Life Insurance Policy
I have a life insurance policy of this I give:

After making this specific reference to her life insurance policy, Ms. Thomas carefully outlined specific bequests to granddaughters, nephews, nieces, sister and friends. Article 3 also provided for a “Walnut Lane Maintenance Fund” of $20,000 to be used solely to maintain 2113 Walnut Lane as managed by her daughter Keenya Banks-Bryant, or if she is unable to perform this role, by Ashley Super. Finally, Article 3 provides:

After all matters of insurance have been taken care of, the remainder of the money’s shall be split equally and put into separate trust accounts for Troy Thomas (My son) and Keenya Banks-Bryant (My daughter). The moneys shall be distributed in a onetime payment of ten thousand dollars to each Troy and Keenya, and the rest shall be disbursed in monthly payments of $1,000 until the trust funds are exhausted.

After Elaine Thomas died on December 20, 2012, Ashley Super contacted the Office of Federal Employees’ Group Life Insurance Program (OFEGLI) to collect the benefits due under the life insurance policy that had insured Elaine Thomas. In response, she received a July 8, 2013 letter denying this request from Tricia Baker of MetLife Insurance Company which pays claims for the OFEGLI. Ms. Baker explained that by law the OFEGLI “must pay the life insurance benefits to the beneficiary according to federal law as described in the enclosed order of payment document.” The letter then stated that the most recent beneficiary that had been designated by Elaine Thomas was “trustee(s) or successor(s) as provided in last Will.” Ms. Baker concluded that upon review of Elaine Thomas’s last will, “she did not name a trust or appoint a trustee.” Due to this failure to designate a beneficiary, the proceeds would go instead to “our enclosed order of payment document” which would be to the children of Elaine Thomas.

In response to this rejection letter, Ashley Super filed a petition seeking a determination by Orphans’ Court that Elaine Thomas had created a trust in her will that would qualify as the beneficiary she had designated under her insurance policy. This petition was opposed by Keenya Banks-Bryant, the daughter of Elaine Thomas, who posed various arguments that are not always clear. At one point, she argues that her mother’s will did not create a trust, and as a consequence, the life insurance proceeds should be distributed to the surviving children of Ms. Thomas. In a subsequent pleading, Ms. Banks-Bryant argues that the will did not change the beneficiary that had been designated by Elaine Thomas to receive her life insurance proceeds, thereby misstating the central issue which is identifying the beneficiary Elaine Thomas designated to receive her life OFEGLI life insurance proceeds.

Legal Analysis

In this case, it is undisputed that Elaine B. Thomas designated her “trustee(s) or successor(s) as provided in last will” as the beneficiary of her life insurance policy with OFEGLI. There are a plethora of Pennsylvania cases that focus on whether a beneficiary has been changed by operation of statute or by the substantial efforts of the insured prior to death. This case, however, does not involve a changó in designated beneficiary. Those cases do not apply here. In fact, the petitioner has no dispute as to the designated beneficiary of Elaine Thomas’s policy nor does she argue that it was or should be changed. What petitioner does dispute is the legal opinion rendered by the case management specialist for MetLife that Elaine Thomas’s will did “not name a trust or appoint a trustee” that would qualify as a designated beneficiary. This administrative opinion, however, cannot stand. In her will, Elaine Thomas expressed a clear intent that Ashley Super should be the “executor of her life insurance policy” and that she should distribute the life insurance proceeds as set forth in Article III of the will. In so doing, Elaine Thomas effectively named Ms. Super as the trustee of those proceeds with clearly defined tasks in administering the life insurance proceeds.

It has long been held in Pennsylvania that the polestar of any analysis of the will of Elaine Thomas is her intent. In re Hirsh’s Estate, 334 Pa. 172, 179, 5 A.2d 160, 163 (Pa. 1939)(“The ‘polestar’ long fixed for the guidance of courts in interpreting deeds of trust, as in interpreting wills, is the intention of the maker”). In seeking to discern that intent, a court must be guided by the plain language of the document. Id. 334 Pa. at 178-9, 5 A.2d at 163. Particular sections should not be viewed in isolation but instead the will must be construed as a whole in the context of the surrounding circumstances. O’Reilly’s Estate, 371 Pa. 349, 353, 89 A.2d 513, 514-15 (1952); Estate of Weaver, 390 Pa. 128, 131. 134 A.2d 675, 676 (1957); Walker’s Estate, 376 Pa. 16, 22, 101 A.2d 652, 655 (1954). In rejecting petitioner’s request for the life insurance proceeds under Elaine Thomas’s policy, the case management specialist interpreted her will to conclude that it did not create a trust or name a trustee. Numerous cases have held, however, that the words “trust” or “trustee” are not essential for the creation of a trust by a will. See, e.g. Estate of McClain, 435 Pa. 408, 411, 257 A.2d 245, 246 (Pa. 1969)(“The absence of the word ‘trust’ or ‘trustee’ in the residuary clause of the will is not controlling in a determination of whether a valid trust was created”); Ranney v. Byers, 219 Pa. 332, 334, 68 A.971 (1908)(“Even the words ‘trust’ or “trustee’ need not be used, but the language employed must be such as to disclose with certainty the purpose to create a trust”); Sheets’ Estate, 52 Pa. 257 (Pa. 1866)(“There is no magic in the word trustee” and no “particular form of words is necessary to create a trust”).

Under long standing Pennsylvania precedent, courts determine whether a will establishes a trust by analyzing the will as a whole rather than fixating on magic words like “trust” or trustee.” In Sheets ’ Estate, for instance, the court concluded the testator had created a trust and that the executor was, in fact, a trustee: “[t]he duties imposed and the powers given to the executor in the will now before us, are such as necessarily to constitute him a trustee.” Sheets’ Estate, 52 Pa. 257 at *8. It noted that such powers as paying income annually to beneficiaries was more the role of a trustee than an executor. Similarly, in Estate of McClain, 435 Pa. 408, 257 A.2d 245 (Pa. 1969), the following provision in a will was interpreted by the Pennsylvania Supreme Court as, in reality, creating a trust and appointing a trustee:

The rest-residue and remainder of my estate, whether real-personal or mixed I authorize empower and direct by executors herein named to sell the same at either private or public sale. The proceeds therefrom to be used for Scholarships. To be directed by Fred D. Lamberson.
Estate of McClain, 435 Pa. at 409, 257 A.2d at 246.

In interpreting this will, the McClain court emphasized that despite “absence of the word ‘trust’ or ‘trustee,’ this residuary clause created a scholarship trust and named Fred Lamberson as trustee.” Id., 435 Pa. at 411, 257 A.2d at 246.

More recently, the Pennsylvania Uniform Trust Act has set forth five general criteria for determining whether a trust has been created without requiring that the words trust or trustee be employed. Under 20 Pa.C.S. § 7732, for instance, “a trust is created only if:” beneficiary of the trust.

(1) the settlor has capacity to create a trust;
(2) the settlor signs a writing that indicates an intention to create the trust and contains provisions of the trust;
(3) the trust has a definite beneficiary....
(4) the trustee has duties to perform;
(5) the same person is not the sole trustee and sole

. Significantly, section 7732 does not require a “trust document” but instead “a writing that indicates an intention to create the trust and contains provisions of the trust.” Respondent Keenya Banks-Bryant does not challenge the capacity of Elaine Thomas in either executing her will or creating a trust. Nor is there any dispute that Elaine Thomas signed her will. The key issue is whether the will creates a trust with beneficiaries and a trustee with duties to perform. In her will, Elaine Thomas clearly appoints Ashley Super as “executor of my estate and insurance.” When this appointment is read in the context of the will as a whole, in particular with Article 3, it is clear that Ms. Super has been placed in trust of managing the life insurance proceeds with numerous, clearly defined responsibilities. She is charged, for instance, with placing $20,000 in a trust account for Kareema Thomas and with making sure there are monthly disbursements of $2,000 until that fund is exhausted. Ms. Super is required to place $15,000 in a trust account for Avery Super which is to be held until Avery reaches the age of 18, at which point $ 1500 a month is to be distributed until the funds are exhausted. Likewise, Ms. Super is directed to place $15,000 in a trust account for Taylor Thomas until he reaches 18, when she is required to distribute $1500 a month until the fund is exhausted.

Respondent Keenya Banks-Bryant challenges the validity of this trust by citing In re Wood’s Estate, 261 Pa. 480, 104 A. 673 (1918) for the proposition that “a testamentary trust is not proper when it appears that the trustee has no function except merely to apply all the proceeds of the trust corpus to the personal use of the beneficiary as she might require it.” While this argument distorts the rationale of Wood’s Estate, it also misses the point at issue here because Elaine Thomas’s will charges Ms. Super with numerous duties and not just distributing the corpus to the sole use of one beneficiary. The respondent also misrepresents the significance of 20 Pa.C.S. § 6108 as to the designation of insurance policy beneficiaries as not being testamentary. While it is true, as respondent asserts, that section 6108 provides that designations of beneficiaries of life insurance are not testamentary and shall not be considered part of a decedent’s estate, this section does provide for the distribution of life insurance proceeds to a trust created by a will:

This section shall apply regardless of whether the insurance contract or the employee benefit plan designates the ultimate beneficiaries or makes the proceeds payable, directly or indirectly, to a trustee of a trust under a will or under a separate trust instrument which designates the ultimate beneficiaries, and regardless of whether any such trust is amendable or revocable, or both, or is funded or unfunded, and notwithstanding a reservation to the settlor of all rights of ownership in the insurance contracts or under the employee-benefit plans. Unless otherwise expressly provided in the conveyance, funds, or other property so passing to a trust under a will shall become and be a part of the testamentary trust to be administered and disposed of in accordance with the provisions thereof, without forming any part of the testator’s estate for administration by his personal representative.

20 Pa.C.S. §6108.

As petitioner convincingly argues, in this case Elaine Thomas’s estate and trust are distinct, but Elaine Thomas intended “Ashley Super to administer both, acting in a dual capacity as both executor and trustee under the Will.” Ashley Super’s distinct responsibilities as trustee for the life insurance policy proceeds are detailed in Article 3 of the will. Likewise, the other requirements of section 7732 are satisfied. The trust has more than one beneficiary and the same person is not the sole beneficiary and sole trustee of the trust.

Conclusion

For these reasons, the insurance proceeds for Elaine Thomas should be distributed as directed by Elaine Thomas’s written designation for her life insurance beneficiary to Ashley Super for distribution and administration as set forth in Article 3 of the will.

      . See 10/29/13 Ashley Super petition, ex. B (7/8/13 letter from Tricia Baker).

      . 11/13/13 Keenya Banks-Bryant objection to petition; 1/21/14 Keenya Banks-Bryant answer.

      . 1/21/14 Keenya Banks-Bryant answer.

      . See, e.g., Estate of Sauers, 613 Pa. 186, 32 A.3d 1241 (2011) (Under ERISA, section 6111.2 of the PEF Code is preempted as to life insurance proceeds).

      . See, e.g., Alkhafaji v. TIAA-CREF, 69 A.3d 219 (Pa. 2013) (Decedent did not substantially comply with procedures for changing TIAA-CREF beneficiary by will that was not sent to TIAA-CREF in timely fashion). Respondent Keenya Banks-Bryant cites Alkhafaji to support an argument that decedent could not change her insurance beneficiaries with her will. See 1/21/14 answer by Keenya Banks-Bryant at (unnumbered) 3 (“Therefore, as decedent did not and was required to notify her insurance company of change of beneficiaries, and her drafting of a will can not serve to change beneficiaries of the insurance policy”).

      . In her brief, respondent invokes precedent on the requirements for changing a designated beneficiary by complying with the requirements of the policy, but that is not at issue in this matter. 2/21/14 Keenya Banks-Bryant brief at (unnumbered) 2.

      . 10/29/13 Ashley Super petition, ex. B (7/8/13 letter for MetLife/ FEGLI by Tricia Baker).

      . See 10/29/13 Ashley Super petition, ex. B (7/8/13 letter from Tricia Baker).

      . 11/13/13 objection by Keenya Banks-Bryant at (unnumbered) 2-3, citing In re Wood’s Estate, 261 Pa. 480, 482-83, 104 A. 673, 673 (1918). Although respondent appears to use this case to determine whether a viable trust is created, Wood’s Estate focuses instead on whether a trust may be terminated based on the agreement of the beneficiary and the trustees. That is not at issue in this dispute. Likewise, respondent’s reliance on Estate of Weeks, 485 Pa. 329, 402 A.2d 657, 658-59 (1918) is misdirected since that case likewise deals with the termination of a trust and not with whether it exists.

      . See 2/21/14 Keenya Banks-Bryant petition at (unnumbered) 3.

      . 3/5/14 Ashley Super brief at 17.


source: Caselaw Access Project

author: MCINERNEY, J.,

license: Public Domain

text:
    Sunlight Electrical Contracting Co. Inc. v. Turchi

      Bruce L. Phillips and Jeffrey C. Venzie, for plaintiff.

      Bruce Bellingham, for defendant.
    May 16, 2014
   MCINERNEY, J.,

Plaintiff Sunlight Electrical Contracting Co., Inc. (“Sunlight”) brought this fraud action to pierce the corporate veil of defendant 23S23 Construction Inc. (“23S23”) to reach the assets of defendants John J. Turchi, Jr. (“Turchi”) and Turchi Inc. Sunlight’s grievances arise out of a condominium construction project at 23 South 23rd Street in Philadelphia known as the Carriage House Condominium (the “Condominium”). The owner of the Condominium was Carriage House Condominiums L.P. (“CHC LP”), whose general partner was Carriage House Condominiums G.P. Turchi was the principal officer and owner of both the limited partnership and the general partnership, as well as of Turchi, Inc. and 23S23.

In 2005, 23S23, acting as Construction Manager for the Condominium project, entered into a subcontract with Sunlight pursuant to which Sunlight was to perform electrical work on the Condominium project. 23S23 allegedly paid Sunlight some of the money due under the subcontract, but failed to pay all of it and failed to pay for additional work requested of, and performed by, Sunlight, despite Turchi’s repeated promises that payment would be made. Instead, Sunlight alleges, construction monies that should have been paid by 23S23 and CHC LP to Sunlight and other subcontractors went to Turchi, Turchi, Inc., and other related entities controlled by Turchi.

In 2009, Turchi caused 23S23 and CHC LP to file for bankruptcy. In 2010, CHC LP’s plan of reorganization was confirmed and its debts discharged. 23S23 was found to have no assets and was liquidated. The debts owed by the bankrupt parties to Sunlight were listed on their schedule of liabilities. However, the veil piercing claims asserted by Sunlight in this action apparently were not listed or treated as assets of either bankrupt entities’ estate, even though an earlier iteration of Sunlight’s claims was pending before a federal court at the time the bankruptcies were filed.

The money that Turchi and Turchi, Inc. allegedly siphoned off of, or failed to pay into, 23S23 and CHC LP may be recoverable through a claim to pierce 23S23’s and CHC LP’s corporate veils to reach Turchi and possibly Turchi, Inc. as well. In addition to Sunlight, at least two other subcontractors who worked on the Condominium project, and who claim not to have been fully paid for their work, have attempted to bring veil piercing claims in state court.

Such veil piercing claims against Turchi and Turchi, Inc. are potential assets of 23S23’s and CHC, LP’s bankrupt estates. However, Sunlight and the other shorted subcontractors chose not to pursue such claims in bankruptcy court where they belong, nor to do so on behalf of all similarly situated creditors. Instead, each subcontractor asserted individual claims seeking the repayment of the allegedly stolen sums directly and only to it.

The point of a bankruptcy proceeding is not to shield a swindler from the reach of those he duped. It is instead a chance for his victims to help the trustee locate the debtor’s assets, so that they can be distributed fairly among all his creditors. This court would undermine the federal bankruptcy scheme if it were to permit Sunlight’s individual veil piercing claims to proceed here. Instead, Sunlight’s claims in this action must be dismissed without prejudice for them to be re-filed in re-opened bankruptcy proceedings involving 232S23 and CHC, L.P.

CONCLUSION

For all the foregoing reasons, defendants’ motion for summary judgment must be granted and plaintiffs’ claims must be dismissed.

ORDER

Andnow, this 16th day of May, 2014, upon consideration of defendants’ motion for summary judgment, the response thereto, and all other matters of record, and in accord with the opinion issued simultaneously, it is ordered that said motion is granted and all of plaintiff’s claims against defendants are dismissed without prejudice to reassert them if permitted by the bankruptcy court.

      . That action was originally filed with this court as Sunlight Electrical Contracting v. Turchi et al., May term, 2008, No. 03911, and was subsequently removed to federal court.

      . See e.g., Lumax Indus., Inc. v. Aultman, 543 Pa. 38, 42, 669 A.2d 893, 895 (1995) (“the factors to be considered in disregarding the corporate form [are] as follows: undercapitalization, failure to adhere to corporate formalities, substantial intermingling of corporate and personal affairs and use of the corporate form to perpetrate a fraud.”); S. T. Hudson Engineers, Inc. v. Camden Hotel Dev. Associates, 747 A.2d 931, 935 (Pa. Super. 2000) (the court recognized “the alter ego theory of piercing the corporate veil, a theory which applies where the individual or corporate owner controls the corporation to be pierced, and the controlling owner is to be held liable.”)

      . See BVF Construction Co., Inc. v. Turchi, Inc. et al., October term, 2007, No. 02084 (Phila. Ct. Com. PI.). The veil piercing claims in that action were recently dismissed by this court. See also Morris Black & Sons, Inc. v. Turchi, Inc. et al., 2012 WL 1379499 (Lehigh Co. Ct. Com. PI.) (the court dismissed a claim for piercing the corporate veil in connection with the Carriage House Condominiums).

      . See St. Paul Fire & Marine Ins. Co. v. PepsiCo, Inc., 884 F.2d 688, 705 (2d Cir. 1989)(“because an alter ego claim is the property of the estate, and because the injury in this case is a generalized one... [creditor] does not have standing to assert its alter ego claim outside of the bankruptcy proceeding.”); Cedarbrook Plaza, Inc. v. Gottfried, 1997 WL 330390 *10 (E.D. Pa. June 6,1997) (“The court finds that [creditor’s alter ego claim] presents a claim for generalized harm. The injury alleged is primarily to the corporation, and is injury to the plaintiff creditor only insofar as it decreases the assets of the corporation to which he must look for satisfaction of his debt. Thus, the suit is for a tort suffered by the corporation, and properly brought by the trustee. The claim is not personal to [creditor].”)

      . See Union Bank v. Wolas, 502 U.S. 151, 161, 112 S. Ct. 527, 533, 116 L. Ed. 2d 514 (1991) (“The purpose of the preference section is two-fold. First, by permitting the trustee to avoid pre-bankruptcy transfers that occur within a short period before bankruptcy, creditors are discouraged from racing to the courthouse to dismember the debtor during his slide into bankruptcy. The protection thus afforded the debtor often enables him to work his way out of a difficult financial situation through cooperation with all of his creditors. Second, and more important, the preference provisions facilitate the prime bankruptcy policy of equality of distribution among creditors of the debtor. Any creditor that received a greater payment than others of his class is required to disgorge so that all may share equally. The operation of the preference section to deter ‘the race of diligence’ of creditors to dismember the debtor before bankruptcy furthers the second goal of the preference section — that of equality of distribution.”)

      . Allowing the claim to proceed would, in effect, elevate [Sunlight] to the status of a preferred creditor with rights superior to those of [23S23’s and CHC LP’s] other creditors.” Cedarbrook Plaza, 1997 WL 330390 at *11.

      . See 11 U.S.C.A. § 350 (“A case may be reopened in the court in which such case was closed to administer assets, to accord relief to the debtor, or for other cause.”); Fink v. EdgeLink, Inc., 2014 WL 211810 (3d Cir. Jan. 21, 2014) (“The belated discovery of undisclosed pre-petition assets...may provide good reason to reopen a bankruptcy case.”)


author: ZULICK, J.,

text:
    Township of Middle Smithfield v. Harima, Inc.

      C.P. of Monroe County,
    No. 1266 CV 2014

      Michael Gaul, for plaintiff.

      Marshall E. Anders, for defendants.
    May 16, 2014
   ZULICK, J.,

The Township of Middle Smithfield filed a complaint in equity against Harima, Inc., JMJ Hospitality, Inc., and HOTTPA, INC., a/k/a HOTT 209, a/k/a GO GO DANNY’S on February 24, 2014. The complaint sought an injunction to prevent the defendants from operating a bar called “Go Go Danny’s” in the basement of a motel unit on the Werry’s Motel & Pub Property (Werry’s Property). The Werry’s Property is located on Route 209 in Middle Smithfield Township and is improved with a restaurant/pub, approximately 25 motel units and other stand-alone cabin units. Township exhibit 7. The basement bar which was the subject of the complaint was built in 2012 and 2013 in the basement of motel units 11 to 17. The township filed a motion for preliminary injunction at the same time the complaint was filed.

A hearing on the injunction request was scheduled for March 3, 2014. Harima and JMJ requested a continuance of the hearing. Their motion was granted and the hearing was rescheduled for March 14, 2014. A temporary stay of activity in the bar was imposed at the same time. Harima, Inc. (Harima) and JMJ Hospitality, inc. (JMJ) filed answers to the complaint and the motion. No answer to the complaint has been filed by defendant HOTTPA, Inc.

Hearings were held on the motion for injunction on March 14 and 20, 2014. Following the hearings, the court ordered that the transcript be prepared and the parties were given a briefing schedule. The parties filed briefs in accordance with that schedule.

FINDINGS OF FACT

1. The township of middle Smithfield is a Second Class Township in Monroe County, Pennsylvania.

2. Defendant Harima, Inc. is a Pennsylvania business corporation with an address of 5049 Milford Road, East Stroudsburg, Pennsylvania. The president and principal shareholder of Harima is Robert Spano.

3. Harima bought the Werry’s Property located on Route 209, Middle Smithfield Township, Monroe County, Pennsylvania on November 1, 2005. The property fronts on Route 209 and is approximately 7.5 acres. It is improved with Werry’s Pub, a pub/restaurant and motel rooms and apartments, in addition to the basement bar which is the subject of this case. The property is zoned C-l.

4. Defendant JMJ Hospitality, Inc. is a Pennsylvania business corporation with an address of 5049 Milford Road, East Stroudsburg, Pennsylvania. JMJ has leased the Werry’s Pub property from Harima through May, 2019.

5. JMJ has a hotel liquor license from the Pennsylvania Liquor Control Board, License Number H 6195.

6. Nicole Spano is the sole officer of JMJ and is the Manager of the premises for purposes of the liquor license. NT 3/20/2014, 81. ’

7. HOTTPA, Inc. is a Pennsylvania business corporation with an address of 5130 Milford Road, East Stroudsburg, Pennsylvania, HOTTPA is in the adult entertainment business. Testimony of Kevin Hickey, NT 127 3/20/2014. Its business offers nude performances for compensation. Id. The business presents lap dancing, pole dancing and strippers who are paid for performing in the nude. Id.

8. HOTT 209 is a trade name for HOTTPA. Dan Russo and Kevin Hickey are corporate officers of HOTTPA. NT 6, 120, 3/14/2014. Hickey is also a shareholder of HOTTPA. Id. Kevin Hickey owns or operates an adult entertainment business in New Jersey known as HOTT22. Id.

9. Middle Smithfield Township has enacted a zoning ordinance which requires a property owner in the township to obtain a zoning permit before changing or adding a use on a property. Middle Smithfield township zoning ordinance 2010-A as amended by township ordinance 198, Township exhibits 31, 34.

10. Middle Smithfield Township has enacted a subdivision and land development ordinance which requires a land owner or tenant to file a land development plan and obtain township approval of the plan before improving “a nonresidential building.” Middle Smithfield Township subdivision and land development ordinance, 170-5, 170-15 and 170-142.

11. On February 11, 2014, JMJ and/or Harima opened or permitted the establishment of a new bar named “Go Go Danny’s” in the basement of a block of motel rooms on the Werry’s Property. The bar offered the sale of alcohol and adult live entertainment. Testimony of McGlynn, NT 3/14/2014, 36-41. Testimony of Folkmen, NT'221; Testimony of Nicole Spano, NT 92-93, 3/20/14, township exhibits 10-14, 20, 35.

12. No zoning permit or land development permit was applied for before Go Go Danny’s was opened.

13. Harima applied for a non-conforming use certificate from Middle Smithfield Township in April 2008. A site plan was submitted as part of Harima’s application, which noted the Werry’s Pub but did not depict the bar under the motel units as a current use. Township exhibit 6, 7, NT 3/14/14, 21-24, 31, 181. No parking arrangements were identified for the bar in the basement of the motel units, id. at 26-27 and 183.

14. The JMJ Liquor License Application does not identify the bar in the basement as a serving area. Township exhibit 9. The liquor license application lists the basement area as being used in the licensed business, but does not designate its function.

15. On F ebruary 11,2014, Shawn McGlynn, the Middle Smithfield township zoning officer, received a complaint about the opening of the Go Go Danny’s bar on the Werry’s property. He visited the premises that afternoon, and noticed that a new entryway was constructed on the building. Id. at 39.

16. That door was locked. He was shown to another doorway by an individual and he went downstairs to a basement area under a block of motel rooms where there was a newly renovated bar. There were people in the bar who told him they were waiting for “the bar tenders and the girls,” at which point Mr. McGlynn left. id. at 40- 41. 43.

17. Before visiting the Werry’s Property, Mr. McGlynn had seen a Facebook posting by Josh Spano, Robert Spano’s grandson, stating that Everyone come out and see the strippers, a HOTT 209 opening, must be 18 or older to get in.” Id. at 43. Township exhibit 12.

18. Mr. McGlynn saw signs the next day, on February 12, 2014, posted along Route 209 on the front of the property for Go Go Danny’s. Id. Township exhibit 13, 14.

19. There is a Go Go Danny’s Facebook page. Id. at 54-56. Township exhibits 10, 11. On February 12, 2014, the Facebook page advertised that Go Go Danny’s was located at 5049 Milford Road, East Stroudsburg, PA. its hours were from 4:00 p.m. until 2:00 a.m. it advertised itself as a bar/ adult entertainment. Township exhibit 10. A February 10, 2014 posting states “(f)orgot to mention, things kick off at 4:00 p.m. and we also have a nice beautifully organized lap dance room. See you tomorrow night.” Id.

20. Mr. McGlynn concluded that a bar use and an adult entertainment use were being conducted in the basement at the Werry’s Pub property. NT 62. He issued an enforcement notice to Harima, the owner of record, to JMJ, the lessee of the premises and the liquor licensee, and to HOTTPA, Inc. t/a Go Go Danny’s on February 14, 2014. Id. at 63.

21. Harima filed an appeal of the enforcement notice. JMJ and HOTTPA did not.

22. HOTTPA had previously filed an application for conditional use approval to establish an adult use on the Werry’s Pub property-r-Robert Spano joined in that application. NT 3/14/14,49-50. A site plan was submitted with the application; township exhibit 19. That plan did not show any bar use in the motel building on the Werry’s Pub property. NT 50-51.

23. The traffic analysis submitted to support the conditional use application for an adult use on the Werry’s Property contained a calculation for the necessary number of parking spaces. No bar use was identified in the basement room of the motel building.

24. Raymond Wolfe, the budget finance manager for the township, operated the Werry’s Property with Robert Spano in 2008. No bar was present in the basement of the motel units at that time. The area had a countertop, but there were no toilets or sinks. The rooms were used for storage. NT 3/14/14,111-114.

25. LeAnn McClary worked at Werry’s from 2000 through 2008 in various capacities, including bartender, desk clerk and cook. During this time, the basement below motel units 11-17 were used for storage. Testimony of LeAnn McClary, NT 3/14/14 at 120.

26. Christina Brown was the director of operations at-Werry’s at the time of the hearing. She was in charge of operations in the Werry’s Pub and in the basement bar for the two days that the bar was open. She testified that she had worked for Werry’s for 23 years. During that time, the basement room had been used for storage until a bachelor/ bachelorette party was held there 2011 or early 2012. Testimony of Christina Brown, NT 3/20/14 at 40.

27. HOTT 209 placed an advertisement in the August 2013 issue of Xtreme magazine which stated “All new HOTT 209 go-go entertainment opening soon. Secure your position now. Make big dollars in the Poconos...” Township exhibit 35, This advertisement was similar to that found on the Go Go Danny’s Facebook page. Testimony of Annette Atkinson, NT 3/14/14 at 162; township exhibits 10, 11, 20,

28.HOTTPA had also previously filed an application for a special exception for an adult-use on the Werry’s Property. There was no suggestion of a bar use or adult-use in the motel building. Testimony of Wayne Rohner, NT 3/14/14 at 180.

29. John Bolles was hired to make repairs to the motel building and basement on the Werry’s Property. He was told to make the basement look like “an up to date bar.” Testimony of John Bolles, NT 3/14/14 at 200. He rebuilt the roof and entryway of the structure; he installed suspended ceilings in the basement; he replaced the surface of the bar with wood flooring; installed polished metal plate and mirrors on the walls; modernized the HVAC system; installed new lighting, and built a “sitting area” in a room adjacent to the bar room. Id. 191-194. He replaced toilets. •Testimony of Nicole Spano, NT 3/20/14 at 83.

30. The bar in the motel basement opened for two days in February, 2014. Testimony of Christina Brown, NT 3/20/14 at 37.

31. On the days the bar in the basement was open, two dancers were working and danced “on the pole.” Testimony of Nicole Spano, NT 3/20/14 at 92. They were wearing bikinis. Id.

32. Nicole Spano also testified that the room had been used for storage, NT 95.

33. Kevin Hickey testified that he had placed the advertisement for Go Go Danny’s in xtreme magazine. Township Exhibit 35. NT 3/20/2014 at 124. The telephone number found in the advertisement is his and the email hott209@gmail.com was used by his manager, Abraham Eldakroury.

DISCUSSION

Middle Smithfield Township has filed an action seeking to enjoin the defendants’ use of a new bar in the basement of motel units on the Werry’s Property. The Municipalities Planning Code provides in 53 P.S. Section 10617 that a municipality may file an equity action to restrain the use of a building in violation of its zoning ordinance. A court has jurisdiction to restrain violations of municipal ordinances regulating the use of land, despite the availability of other remedies. Municipality of Monroeville v. Gateway Motels, Inc., 47 D&C 3rd 492 (Pa. Com. Pi. 1986), affirmed, 525 A.2d 478 (Pa. Cmwlth. 1987). A municipality is not required to exhaust its statutory remedies before seeking to enjoin a defendant’s alleged violation of a zoning ordinance. Newberry Twp. V. Ness, 469 A.2d 351 (Pa. Cmwlth. 1985).

The Commonwealth Court reviewed the elements that must be established before a preliminary injunction may issue:

In order to obtain injunctive relief, the county must show the following elements: (1) that a preliminary injunction is needed to prevent immediate and irreparable harm that cannot be adequately compensated by damages; (2) that more harm would result from not granting the injunction than from granting it and that the injunction will not harm other interested parties in the proceedings; (3) that the injunction will restore the parties to their status as it existed immediately prior to the alleged wrongful conduct; (4) that the injunction is designed to abate the offending activity; and (5) that the preliminary injunction will not negatively affect the public interest.

Warehime v. Warehime, 860 A.2d 41, 46-47 (Pa. Cmwlth. 2004).

The moving party must establish that the right to relief is clear, T. W. Phillips Gas & Oil Co. v. Peoples Natural Gas Co., 492 A.2d 776, 778 (Pa. Cmwlth. 1985), and that it has a reasonable likelihood of success on the merits. Lewis v. City of Harrisburg, 631 A.2d 809 (Pa. Cmwlth. 1993).

The evidence presented during the two days of hearings established that in June, 2012, work began on the basement room below Werry’s motel units 11-17. Anew entranceway with a modified roof was constructed and renovations were made to basement rooms, NT 3/14/2014 at 202-203. It is not clear from the evidence what entity was directing this work to be done. John Bolles, the construction worker, had no written contract and was being paid cash for his work by an unknown person or entity which he received at the Werry’s Pub at the end of the work week. NT 3/14/2014 at 198. His contact was Robert Spano.

The township became aware of the building activity and the zoning officer at the time, Wayne Rohner and township employee Dave Manter, visited the premises in the summer of 2012. Mr. Rohner issued a cease and desist order, on June 22, 2012. Township exhibit 25. The order notified the owner that it was in violation of the zoning ordinance and the building permit ordinance, Id. John Bolles then applied for building permits for the construction, electrical and HVAC work and provided construction drawings. Building permits were also required for dancing platforms, but applications for them were later withdrawn. None of the defendants made a written application to the township for a zoning permit or a land development permit. A certificate of occupancy was issued by the township on April 16, 2013. Defendant’s exhibit 5, NT 3/14/14 at 137.

Annette Atkinson, a Middle Smithfield Township Supervisor was given a copy of the August 2013 issue of Xtreme Magazine which contained an advertisement for “Hott 209 Go Go Entertainment at 5049 Milford Road, East Stroudsburg, Pennsylvania.” This was the address of the Werry’s Property. NT 3/14/14 at 54, 161, township exhibit 35. The ad stated that the establishment was opening soon and urged interested parties to “secure your position now!” id. This ad was very similar to the ad on the Go Go Danny’s Facebook page. Id. at 162. Township exhibit 20.

Ms. Atkinson also viewed the Go Go Danny’s Facebook page advertising Go Go Danny’s as a “Bar-Adult Entertainment 5049 Milford Road East Stroudsburg, Pennsylvania “NOW OPEN!!! Full Liquor Bar Hot Go Go Entertainment! ATTN: LADIES! MAKE BIG $$$ IN THE POCONOS!” NT 3/14/14 at 162, Township exhibit 10, 11, 12. The Facebook page entry for February 11, 2014 stated that Go Go Danny’s was opening for business on that day.

Shawn McGlynn, the Middle Smithfield township zoning officer, went to the Werry’s basement bar just after 4:00 p.m. on February 11,2014. The bar appeared to have been completely refurbished. He saw people in the bar and asked when the bar was opening. He was told that they were waiting for the “bartenders and the girls.” He then left. NT 3/14/14 at 40, 43. The next morning, on his way to the office, Mr. McGlynn noticed that signs had been put up along Route 209 advertising “Go Go Danny’s.” Id. at 44, township exhibit 13.

Christina Brown, the director of operations at Werry’s, testified that the bar in the motel basement opened for two days in February, 2014, testimony of Christina Brown, NT 3/20/14 at 37. On the days the bar in the basement was open, two dancers were working and danced “on the pole.” Testimony of Nicole Spano, NT 3/20/14 at 92. They were wearing bikinis. Id. The bar did not remain open because of inclement weather, a water problem and then the temporary injunction imposed by the court.

The Middle Smithfield Township Zoning Ordinance provided from 2012 to present that:

§010-060. Effect of provisions.
A. No structure shall be erected, constructed, razed, moved, altered, rebuilt or enlarged; and no use of a structure or land or water area shall be established or changed for any purpose nor in any manner except in conformity with all regulations, requirements and controls and after issuance of a zoning permit as specified in this ordinance, except as hereinafter provided.
§010-090. Applicability.
A. This ordinance shall apply throughout the Township of Middle Smithfield. Any of the following activities or any other activity regulated by this chapter shall only be carried out in conformity with this chapter, to wit:
1. Erection, construction, movement, placement, expansion, extension, reduction and/or demolition of a structure, building, sign and/or area of land;
...3. Creation of a new use.
B. A zoning permit is required to be issued prior to the start of any of the following activities throughout the Township of Middle Smithfield:
1. Erection, construction, movement, placement, expansion, extension, reduction and/or demolition of a structure, building, sign and/or area of land;
2. Creation of a new use; and/or
3. Site alterations.

Township exhibit 31, testimony of Michelle Clewell, NT 150.

Ordinance 183 amended the zoning ordinance on March 27,2012 to prohibit adult uses from the C-l zoning district. Adult uses were then conditionally permitted in the “I” zoning district. This was codified in §041-010 and the township table of use regulations within zoning districts.

The last amendment to the Middle Smithfield Township Zoning Ordinance is found in Ordinance No. 198, adopted on December 30, 2013, which provides as follows:

SECTION 1: The definition of “adult use, live entertainment facility” in Section 020-20 of article II, definitions, of the zoning ordinance is amended so as to state in its entirety the following:
“ADULT USE, LIVE ENTERTAINMENT FACILITY. A use including live entertainment involving both A, and B. below:
A. 1 or more adults in the facility (which may include, but not be limited to: waiters, waitresses, dancers, clerk, bartenders, contractors or others) who are;
1) displaying uncovered male or female genitals or nude or almost nude female breasts or
2) engaging in simulated or actual “adult use specified sexual activities” or repetitive contact between the genital areas of 2 or more adults or between the anal and genital areas of 2 or more adults, and
B. which is related to an entrance charge, cover charge, tips or other monetary compensation paid by the spectators, patrons and /or customers to the person or entity operating the use or to persons involved in such activity.”

Township exhibit 34.

Middle Smithfield Township also had a Subdivision and Land Development Ordinance (SALDO) in effect while the basement bar was being constructed. Section 170-5 of the township’s SALDO provided in part:

No...land development of any lot...shall be made... except in accordance with the provisions of these regulations.

Township exhibit 31.

The SALDO defined “land development” as:

“The improvement of one lot...for any purpose involving: ...a single nonresidential building on a lot... regardless of the number of occupants or tenure...

SALDO section 170-14.

Section 170-142 of the SALDO provided:

Hereafter all plans for land development within the corporate limits of Middle Smithfield Township shall be submitted to and reviewed by the Township Planning Commission and the Board of Supervisors and shall be approved, approved subject to specified conditions acceptable to the applicant or rejected by Middle Smithfield Township in accordance with the procedures outlined in this article.

The township contends that the opening of the Go Go Danny’s bar in the basement of the motel units created a new nightclub/bar requiring an application for a zoning permit and a land development permit. Harima and JMJ contend that Go Go Danny’s is an accessory use of the motel.

The evidence in this case established that Go Go Danny’s is intended to be a bar or nightclub offering adult live entertainment. JMJ called witnesses who stated that the female dancers in the bar would wear bikinis, but the impression created by the advertisements for the bar are that dancers would be nude or scantily clad, offering “almost nude views of female breasts.” The room adjacent to the barroom appears to be designed for private “lap dances.” Without too much of a stretch of the imagination, this activity meets the definition above of an adult use, live entertainment facility. Mr. McGlynn, the zoning officer, did not observe this activity when he was briefly in the bar on February 11, 2014, but the advertisements support the Township’s position that adult use activity was being offered.

Kevin Hickey, a principal of HOTTPA, designed the advertisements for the bar. Mr. Hickey testified that he has an establishment in New Jersey known as HOT22 and that he is in the business of offering nude entertainment which included strippers, pole dancing and lap dancing. NT 3/20/14 at 120,127. It is not clear why HOTTPAis involved with Go Go Danny’s as JMJ is the liquor licensee and the ■ tenant. However, Mr. Hickey testified that he placed the advertisement for Go Go Danny’s in Xtreme Magazine. Township exhibit 35, NT 3/20/14 at 124, He placed the ad because he “wanted to see the kind of reaction I would get because we are looking to do business over there and I just wanted to get customers calling, girls calling, et cetera.” Id. at 125. Dan Russo is a corporate officer of HOTTPA. NT 3/14/14 at 6.

Mr. Hickey also identified his telephone number on the Facebook posting for Go Go Danny’s. Id. at 122. The email address on the Go Go Danny’s Facebook page, hott209@.... was Mr. Hickey’s business manager’s email address. Id. at 123. Township exhibits 10, 11, 20.

The Middle Smithfield Township Zoning Ordinance treats a nightclub/bar use as separate and distinct from a motel use. The table of use regulations of the ordinance establishes a motel as use category F5 and a nightclub/bar as use category F7. Township exhibit 31. The ordinance defines a “motel” as “a building in which lodging, with or without meals, is provided and offered to the public for compensation, and which is open to transient guests, usually with access to units primarily from interior lobbies, courts or halls and is not a rooming house or boarding house.” Id. Section 20-20.

A “nightclub/bar” is defined as “a commercial establishment dispensing alcoholic beverages for consumption on the premises, as well as food, and which dancing and musical entertainment are permitted. State regulations governing alcoholic beverages shall be incorporated into this definition by reference, as they may be amended from time to time.” Id.

The opening of Go Go Danny’s introduced a new use to the Werry’s Property. The Werry’s Pub and Motel is a permitted use in the C-l zone, however the Werry’s property is non-conforming because it did not meet all of the dimensional and other requirements of the ordinance. The Werry’s Property had been registered as a nonconforming property through a filed certificate of non-conformance. Township exhibit 6.

Anightclub use is also permitted in the C-l zone, but the township has a legitimate interest in making sure that there is adequate access, parking, sewer, water, setbacks storm water runoff and proper design. These considerations are addressed when a property owner applies for a zoning and SALDO permit. This was not done by Harima or JMJ. Instead they renovated what was a dusty basement, and opened for new business.

In determining whether a use has changed it must be kept in mind that a property owner’s right to expand a lawful non-conforming use to meet natural business expansion is protected by the law and the constitution. Township of Kelly v. Zoning Hearing Board of Kelly Township, 388 A.2d 347 (Pa. Cmwlth. 1978). However, it is also the policy of the law to closely restrict such non-conforming uses and to strictly construe provisions in zoning ordinances which provide for non-conforming uses in order to discourage the indefinite continuation of structures on the land which are in complete variance with the zoning plan. Hanna v. Board of Adjustment of Forest Hills, 183 A.2d 539 (Pa. 1962). Therefore, there is no constitutionally protected right to change from one nonconforming use to another, Hammond v. Zoning Hearing Board of the Borough of Stroudsburg, 564 A.2d 1324 (Pa. Cmwlth. 1989). Here, the basement was changed from a storage area to a nightclub/bar. Harima and/or JMJ needed zoning and land development permits to do that.

Harima and JMJ argue that they are entitled to a variance by estoppel. They contend that the township zoning officer at the time, Wayne Rohner, told them that they did not need a zoning permit. They base this argument on Mr. Rohner’s testimony. Mr. Rohner was called by the defendants and testified that he posted a cease and desist order on the premises when the basement bar was under construction with no permits. Testimony of Wayne Rohner, NT 3/14/2014 at 171. He stated that “Bob (Spano) gave Dave Manter and myself a tour (of the) basement.” Id. Mr. Spano told Mr. Rohner “that he was looking to reopen the bar and he needed a building permit for the renovation work that was occurring.” Id. “He (Mr. Spano) asked me if he needed a zoning permit to open up the bar. And I said, no.” Id.

Variance by estoppel has arisen out of situations where the municipality has, for a considerable period of time, acquiesced in an illegal use. Although municipal inaction alone is clearly not sufficient, Lennox v. Zoning Board of Adjustment of Pittsburgh, 447 A.2d 1049 (Pa. Cmwith. 1982); Ignelzi v. Zoning Board of Adjustment of Pittsburgh, 433 A.2d 158 (Pa. Cmwith. 1981), “[wjhere municipal inaction is compounded by facts which create a strong equity in the owner, the decision of the Supreme Court in Sheedy v. Philadelphia Zoning Board of Adjustment, 187 A.2d 907 (Pa. 1963), indicates that relief is possible.” R. Ryan, Pennsylvania Zoning Law and Practice, § 8.3.5 (1970).

The Commonwealth Court reviewed the necessary elements in a variance by estoppel case in Caporali v. Ward, 493 A.2d 791, 793 — 794 (Pa. Cmwith. 1985):

A review of the case law indicates, however, that the following elements are indispensable: 1) municipal failure to enforce the law over a long period of time or some form of “active” acquiescence of the illegal use; 2) good faith throughout the proceedings by the property owner; and 3) innocent reliance evidenced by substantial expenditures. Sheedy; Lebovitz v. Zoning Board of Adjustment of Pittsburgh, — Pa.Commonwealth Ct. —, 486 A.2d 1061 (1985); Knake v. Zoning Hearing Board of Dormont, 74 Pa. Commonwealth Ct. 265, 459 A.2d 1331 (1983).

Id.

I find that the evidence presented in this case does not support a variance by estoppel for several reasons. The first is that although Mr. Rohner testified that he told Mr. Spano a permit was not necessary, that was not what was indicated on the cease and desist order posted on the property in 2012. The cease and desist order clearly warned Spano that “THIS SITE IS IN VIOLATION OF THE FOLLOWING; (X) ZONING ORDINANCE. Testimony of Shawn McGlynn, NT 3/14/14 at 93, township exhibit 25. Mr. Rohner was no longer the zoning officer at the time of the hearing; he appeared as a consultant for Mr. Spano. NT 3/14/14 at 179. To the extent that Mr. Spano relied on statements by Mr. Rohner and not the written cease and desist notice, he did so at his peril.

Secondly, there was no testimony that the zoning officer was made aware that there would be adult live entertainment in the premises. The record does not reflect this knowledge on the part of the township until the day of the opening of Go Go Danny’s when the Facebook advertisements were brought to the attention of the Supervisors and then the zoning officer, Mr. McGlynn, who immediately investigated the situation that day.

Thirdly, since a zoning application was not submitted and no other writing or application was given to the township as to the particulars of what use was occurring in the basement, the township was not on notice of the nightclub use until Go Go Danny’s opened, when the township immediately reacted to it. It is true that certificates of occupancy were issued by the township on April 16,2013, but these advised Harima that “(t)he above listed structure is approved for occupancy provided that the applicant has complied with all federal laws, state laws and municipal ordinances and approvals.” Defendants’ exhibits 5, 12,

Harima, Inc. and JMJ are also not in a position of having acted in good faith. They began the renovations of the basement storage room and the outside roof with no contact with zoning officials. Only after the cease and desist order was imposed did they seek building permits. Mr. Spano was a supervisor at the time the zoning ordinance was adopted on December 9, 2010. He was in a position to be aware of the requirements of obtaining a zoning permit. Township exhibit 31.

Finally, defendants argue in the alternative that Go Go Danny’s was a non-conforming use. They contend that the area in question had previously been used as a bar. They base this argument on the testimony of Wayne Rohner, Mr. Rohner described what he saw when he inspected the premises in June, 2012. There was a bar in the basement. There was a ledge behind the bar and there was a bar sink and existing bathrooms. NT 3/14/14 at 185, 186. Mr. Rohner said the bar sink “was old.” Id. at 185.

Defendants did not present any testimony as to when, if ever, the basement bar had been used. Other witnesses testified that the room was used for storage for decades. As set forth above, Raymond Wolfe, the Budget Finance Manager for the township, operated the Werry’s Property with Robert Spano in 2008. No bar was present in the basement of the motel units at that time. The area had a countertop, but there were no operating toilets or sinks. The rooms were used for storage. NT 3/14/14, 111-114.

LeAnn McClary worked at Werry’s from 2000 through 2008 in various capacities, including bartender, desk clerk and cook. During this time, the basement below motel units 11-17 were used for storage. Testimony of LeAnn McClary, NT 3/14/14 at 120.

Christina Brown was the director of operations at Werry’s at the time of the hearing. She was in charge of operations in the Werry’s Pub and in the basement bar for the two days that the bar was open. She testified that she had worked for Werry’s for 23 years. During that time, the basement room had been used for storage until a bachelor/ bachelorette party was held there 2011 or early 2012. Testimony of Christina Brown, NT 3/20/14 at 40. The evidence does not support the non-conforming use of the basement rooms as a bar.

A non-conforming use may be abandoned. If there was such a use, as the bar and sink and shelf might imply, it was abandoned and used for storage instead. Christina Brown testified that the basement room was used to store beer for “20-something years.” NT 3/14/14 at 237. The commonwealth court found in Spencer v. ZHB of Rockland Twp., 533 A.2d 497 (Pa. Cmwlth. 1987) that a non-conforming trailer use had been abandoned after a trailer had been removed from a property for three years.

Here, there was no testimony establishing the last time the room had been used as a bar, or even that it had ever been used as a bar. Christina Brown was the witness with the greatest knowledge of the use of the premises in the past, and she had always known the room to be used for beer storage for more than two decades. The use, if it existed in the past, had been abandoned.

The temporary injunction previously imposed on March 3, 2014 and March 20, 2014 will be continued as a preliminary injunction, in place until an application for a zoning permit and a land development permit are filed and seen to a final decision, or until further order of this court.

No injunction against HOTTPA, Inc. will issue, because that corporation has not been shown to have any possessory interest in the land or the liquor license.

CONCLUSIONS OF LAW

1. This court has jurisdiction to restrain violations of the Middle Smithfield Township municipal ordinances regulating the use of land, despite the availability of other remedies.

2. Middle Smithfield Township is not required to exhaust its statutory remedies before seeking to enjoin a defendant’s alleged violation of a zoning ordinance.

3. A preliminary injunction is needed to prevent immediate and irreparable harm that cannot be adequately compensated by damages.

4. More harm would result from not granting the injunction than from granting it.

5. The injunction will restore the parties to their status as it existed immediately prior to the alleged wrongful conduct.

6. The injunction is designed to abate the offending activity.

7. The preliminary injunction will not negatively affect the public interest.

8. Middle Smithfield Township’s right to relief is clear.

9. Middle Smithfield Township has a reasonable likelihood of success on the merits.

ORDER

And now, this 16th day of May, 2014, following a hearing on the Township of Middle Smithfield’s motion for preliminary injunction, and consideration of the briefs and arguments of the parties, it is ordered that:

1. Defendants Harima, Inc. and JMJ Hospitality, Inc. are preliminarily enjoined from conducting a bar or nightclub business in the basement of the Werry’s Motel premises. In addition, no live or other entertainment shall be offered to the public from that location and no signs advertising business in the basement bar shall be placed on the premises.

2. This preliminary injunction shall remain in effect until Harima, Inc. applies for a zoning permit and a land development permit and obtains a final decision on those applications, or until further order of court.

3. The request for injunction against HOTTPA, INC, is denied as that corporation was not shown to have title or interest in the premises or the liquor license.


author: WILLIAMSON, J.,

text:
    Wise v. Hyundai Motor Company

      C.P. of Monroe County,
    No. 3777 CIVIL 2011

      James M. Wetter and Ammar S. Wasfi, for plaintiffs.

      Alyssa Talarico and Joseph Pulcini, Jr., for defendants.
    May 12, 2014
   WILLIAMSON, J.,

This matter comes before us on a motion for summary judgment filed by-Hyundai America Technical Center, Inc. (hereafter “moving defendant”) on March 13, 2014. On April 14, 2014, James Wise and Elizabeth Weidman, co-administrators of the estate of Amanda Wise, deceased (hereafter “plaintiffs”) filed a response in opposition of summary judgment. In the motion, moving defendant argues that it is entitled to summary judgment because it did not design, manufacture or sell the vehicle which plaintiffs are alleging was defective. Essentially, moving defendant argues that because plaintiffs cannot produce any evidence that the moving defendant manufactured, designed, tested, sold, supplied or distributed the subject vehicle in question, it is entitled to summary judgment. Furthermore, moving defendant asserts that because of plaintiffs’ failure to establish the causation element of the claims alleged against the moving defendant, summary judgment should be granted in its favor.

According to the parties’ pleadings, the accident in question occurred on or about August 16, 2010 at 3:10 a.m. on State Route 33 in Hamilton Township, Monroe County, Pennsylvania. It is alleged that, at the time of the accident, the driver of the subject vehicle reportedly fell asleep at the wheel. According to the police report, as a result of the driver falling asleep, the subject vehicle left the roadway, continued to go straight, and struck a dirt mound with the undercarriage of the vehicle. The police report continues, stating that the subject vehicle became airborne and struck a large tree. Further, the police report notes that the front seat passenger, Amanda Wise (hereafter “decedent”) became entrapped in the subject vehicle, which subsequently caught fire after coming to rest. The decedent sustained fatal injuries from the vehicle fire following failed attempts to free her from the vehicle. The decedent was pronounced dead at the scene of the vehicle accident at approximately 4:24 a.m. by Monroe County Deputy Coroner Dave Thomas. A subsequent autopsy established the cause of death as thermal injuries sustained as a result of the accident.

Following initial pleadings, plaintiffs’ first amended complaint was filed on June 28, 2011. Moving defendant filed an answer with new matter and new matter cross-claim on October 5, 2012. Plaintiffs filed an answer to moving defendant’s new matter on October 22, 2012. Subsequently, moving defendant filed the instant motion for summary judgment and brief in support on March 13, 2014. Plaintiffs filed a response in opposition to the motion for summary judgment on April 14, 2014. A memorandum of law in opposition to the motion for summary judgment was filed by plaintiffs on April 30, 2014. Oral arguments on the motion were held on May 5, 2014. After review of the parties’ motions and briefs, and in consideration of the representations made at oral arguments, we are ready to dispose of moving defendant’s motion.

DISCUSSION

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

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

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

This motion for summary judgment requires us to determine if a genuine issue of material fact exists as to whether plaintiffs can establish the causes of action against moving defendant in the face of moving defendant’s claims that it did not manufacture, design, test, sell, supply or distribute the subject vehicle. Moving defendant’s argument in regards to the claims of negligence, strict liability, breach of warranty and wrongful death is that plaintiff cannot prove causation as to moving defendant. Therefore, moving defendant asserts that the failure of plaintiffs to demonstrate a causal connection between its conduct and the injuries sustained by plaintiffs entitles moving defendant to summary judgment.

In support of its position, moving defendant asserts that the verified responses to plaintiffs’ discovery requests have clearly shown that moving defendant “did not design, manufacture, assemble, test, distribute or sell the subject vehicle.” Moving def.’s brief in supp. of mot. for summ. j. p. 5 (citing ex. E and I). Moreover, moving defendant argues that in the verification, the representative states that he is a duly authorized representative of moving defendant and makes the verification on moving defendant’s behalf. Thus, moving defendant argues, the discovery responses and verification conform to Pennsylvania law and clearly establish moving defendant’s noninvolvement with the subject vehicle. Therefore, moving defendant requests this court to enter summary judgment on its behalf.

In response, plaintiffs take the position that the motion for summary judgment should be denied because it has been filed prior to the plaintiffs having the opportunity to obtain full and complete responses to narrowly tailored discovery requests to which they are entitled. Plaintiffs’ argument boils down to the fact that they believe not all relevant and pertinent discovery has been provided by moving defendant. In support of this position, plaintiffs contend that the moving defendant has not yet provided meaningful discovery, or even conformed to the standards of practice for the orderly exchange of information through the formal discovery process. Further, plaintiffs argue that the outstanding discovery responses are the subject of a recently filed motion to compel currently in front of this court.

Moreover, plaintiffs assert that the verification submitted by the moving defendant, which was signed by the corporation’s general counsel Mark Torigian, Esq., was made without his personal knowledge or information and belief. Specifically, plaintiffs argue that the language used in the verification, signed by attorney Torigian, requires the moving defendant to identify which matters he lacked personal knowledge of, and to specifically identify the source of the information provided in the answers. As such, because moving defendant, by and through attorney Torigian, has failed to identify the matters which it lacked personal knowledge of, and failed to specifically identify the sources of the information provided, plaintiffs argue the verification does not meet the requirements of the rules, and is in violation of Pa. R.C.P. 1024(c). Therefore, plaintiffs contend that not only is discovery outstanding in this matter, but the verification attached to the discovery responses does not meet the standards set forth in the Pennsylvania Rules of Civil Procedure.

Without addressing the adequacy of the moving defendant’s verification called into question by the plaintiffs, we agree with the position asserted by the plaintiffs regarding the outstanding discovery. As such, summary judgment in favor of the moving defendant cannot be entered at this time.

As stated above in our recitation of the standard of law in a summary judgment motion, the entry of such is only appropriate when the right is “free and clear from doubt.” Musser, 562 A.2d at 280. Furthermore, we are instructed that summary judgment is appropriate when there is no genuine issue of material fact, or, if after the completion of discovery relevant to the motion, the party bearing the burden of proof at trial has failed to produce evidence of essential facts to the cause of action. See Pa. R.C.P. 1035.2 (1), (2). With regard to outstanding discovery requests and entering summary judgment, we are told that summary judgment may be entered “prior to the completion of discovery in matters where additional discovery would not aid in the establishment of any material fact.” Manzetti v. Mercy Hospital of Pittsubrgh, 776 A.2d 938, 950-51 (Pa. 2001) (emphasis added). Therefore, it is imperative for us to determine whether discovery is complete, and if additional discovery would aid in the establishment of a material fact.

In denying moving defendant’s motion, we find that discovery is not complete in this matter and that additional discovery would aid in the establishment of material facts. Plaintiffs’ main argument, both through their answer to moving defendant’s motion for summary judgment, along with the representations made at oral arguments, is that the outstanding discovery in the case will help establish whether or not moving defendant truly had any involvement with the subject vehicle. We recognize that moving defendant has denied any involvement in the design, manufacture, testing, assembling, distributing or selling of the subject vehicle. However, we must also take into consideration the statement made by moving defendant’s counsel at oral arguments that the moving defendant has performed testing for other vehicles designed, manufactured, assembled, distributed and sold by Hyundai. Plaintiffs have represented to this court that the outstanding discovery requests may well establish that the moving defendant did in fact have some involvement with the above enumerated functions of the subject vehicle. Therefore, we do find there to be a need for further discovery to best determine moving defendant’s involvement with the subject vehicle, and if a genuine issue of material fact arises from that involvement.

Furthermore, at oral arguments, moving defendant represented to this court that narrow discovery remains outstanding in this case. Along with that representation, however, moving defendant reaffirmed their position that they did not have any involvement with the subject vehicle in this matter. We believe it is enough for moving defendant to recognize that outstanding discovery remains as to its potential involvement in this matter to deny its motion at this time. If the outstanding discovery conclusively establishes that moving defendant in fact had no involvement with the subject vehicle, judgment in its favor may be had at that time. However, we refrain from making such judgment until a time in which discovery is complete and permits this court to do so.

We also note the history of discovery requests in this case, and what appears to be contentious behavior regarding discovery. Furthermore, there is still a pending motion to compel discovery, discovery conference and status conference scheduled in this matter. It appears no depositions have been completed which may or may not lead to information concerning moving defendant’s contention that they never manufactured, designed or sold the defective vehicle. Finally, we are troubled by a verification attached to discovery responses of an alleged representative of the moving defendant who purports to state not all matters are within his personal knowledge and no one else would have such missing knowledge. Without further explanation, it leaves this court wondering which information the representative did not have personal knowledge. We note it could be the information pertaining to the denial that they manufactured, designed, tested or sold the alleged defective vehicle. Without more, there remains a claimed factual dispute.

In conclusion, viewing the evidence in a light most favorable to the non-moving party, this court finds that the discovery in this matter is incomplete. Further, we find that full and complete discovery in this matter may well establish a genuine issue of material fact suitable for determination at a later stage in the pleadings. We base these determinations on the pleadings, oral arguments and exhibits of both plaintiffs and moving defendant. As such, summary judgment is not appropriate at this time, and we enter the following order.

ORDER

And now, this 12th day of May, 2014, upon consideration of defendant Hyundai America Technical Center, Inc.’s motion for summary judgment, the same is denied.

      . The police report referenced in this opinion is attached as exhibit Ato moving def.’s brief in supp. of the mot. for summ. j.

      . The language in the verification brought into question by the plaintiffs states that “[t]he matters stated in the foregoing answers are not all within my personal knowledge, and I am informed and believe there is no other officer or employee of defendant Hyundai America Technical Center, Inc. who has personal knowledge of all such matters.” Moving def.’s brief in supp. of mot. for summ. j. ex. E.


author: BARATIA, J.,

text:
    Henry v. Lehigh and Northampton Transportation Authority

      C.P. of Northampton County,
    No. C-48-CV-2012-2380

      Christopher J. Culleton, for plaintiff.

      Richard L. Orwig, for defendant.
    June 11, 2014
   BARATIA, J.,

ORDER OF COURT

Andnow,this 11th day of June, 2014, upon consideration of the defendant, Lehigh and Northampton Transportation Authority (LANTA)’s, motion for summary judgment, and the plaintiff, Deborah Henry, Executrix of the Estate of Anthony Kowzun, deceased’s, response thereto, it is hereby ordered that said motion is disposed of as follows:

1. The motion is denied with regard to the negligence claim (count I); and
2. The motion is granted with regard to the wrongful death (count II) and survival (count III) claims.

STATEMENT OF REASONS

Facts and Procedural History

On March 8, 2012, the plaintiff, Deborah Henry, Executrix of the Estate of Anthony Kowzun, Deceased, filed a complaint. In this complaint, the plaintiff avers that the decedent, Anthony Kowzun, died of an accidental overdose of narcotic prescription pain medicine on May 9, 2011, because the decedent required this treatment due to the injuries sustained after he was struck with a shopping cart upon the sudden stop of the LANTA bus on August 9, 2010. The plaintiff alleges that the death of the Mr. Kowzun “was caused solely and exclusively by the negligence and carelessness of the defendant, Lehigh and Northampton Transportation Authority (LANTA), and was due in no manner to any act or failure to act on the part of the plaintiff’s decedent.” See complaint, ¶ 8.

The facts, as established by the record and cast in the light most favorable to the plaintiff, the non-moving party, show that on August 9, 2010, the decedent went to the front of the LANTA bus to talk with the driver of the regarding a connection at a subsequent bus stop. While the decedent stood near the front of the bus, the driver suddenly stopped the bus, causing another passenger’s portable shopping cart to be released down the aisle and to strike the decedent. See id. at ¶¶ 5-8; deposition of Ismael Torres, Jr., 1/09/13, at 40:9-44:15. The decedent allegedly suffered “severe and permanent” injuries as a result of this incident that required treatment with narcotic pain medication. Complaint at ¶¶ 5-6. On May 9, 2011, nine months later, the decedent died of “an accidental] overdose of narcotic prescription pain medication,” which was allegedly prescribed to him as a result of this incident. Id. at ¶ 7.

The plaintiff sets forth the following causes of action in the complaint: negligence (count I), wrongful death (count II), and survival (count III). The plaintiff seeks damages for medical care, loss of earning capacity, other financial losses, permanent loss of a bodily function, loss of enjoyment of life, physical pain, suffering and mental anguish under the negligence cause of action. See complaint at ¶¶ 13-18. For the wrongful death claim, the plaintiff seeks reimbursement for expenses incurred in connection with the decedent’s death. Id. at ¶ 26. Finally, under the survival action, the plaintiff seeks damages for pain and suffering, and for the amount paid for medical treatment for the injuries resulting from the incident. Id. at ¶ 32.

On April 5, 2012, the defendant filed its “answer of defendant Lehigh and Northampton Transportation Authority to plaintiff’s complaint with affirmative defenses.” In paragraphs 39 and 40 of the new matter in the form of affirmative defenses (“new matter”), the defendant avers that it is a “local agency” under the Governmental Immunity Act of October 5, 1980, 42 Pa.C.S.A. § 8541, et seq., such that the plaintiff’s recovery of damages is barred in whole or in part. In paragraph 44 of its new matter, the defendant avers that the plaintiff has not set forth facts indicating a causal link between its actions and the decedent’s injuries.

On March 7, 2014, the defendant filed its motion for summary judgment and brief in support. The defendant argues in its motion that the plaintiff’s damages are limited under local agency/govemmental immunity, and that the plaintiff’s medical expert report fails to establish any causal relationship between the bus incident and the death of the decedent. With regard to the second argument, that the plaintiff failed to establish the requisite causal relationship, the defendant incorporates the following portion of the plaintiff’s medical expert report:

Patient’s emotional baseline of mild depression and anxiety was being treated and stable prior to the accident and these worsened since the accident and he became increasingly unstable emotionally. His mood, anxiety level and quality of sleep all became worse since the accident. He had been advised psychiatric consultation for these as well.
His situation at work also deteriorated since the accident which resulted in chronic neck, low back and calf pain, and the requirement of pain control with stronger pain medications all contributed to worsening job performance. He was not as effective at the tasks of his job in marketing. This also led to him losing his job in approximately late 2010.
These events and medical problems did contribute to his eventual demise in April, 2011.

Defendant Lehigh and Northampton Transportation Authority’s motion for summary judgment ¶ 35, exhibit “C” — Medical expert report by A. John Titus, M.D. of The Rock Wellness Center (May 9, 2013).

We also note that Dr. Titus’ report indicates that as a result of the shopping cart incident, the decedent suffered a “contusion of the calf’ which “did heal over the next few months.” Id. Interesting, Dr. Titus noted that the decedent also complained of “intense neck pain, and low back pain” for which the decedent “was placed on pain medications for the next 8 months [until his death].” Id. Dr. Titus also noted that an MRI report of 2010 established that the decedent suffered from “multilevel disk disease of the cervical spine involving at least three levels with disk herniations and disk desiccation.” Id. However, nowhere in his report does Dr. Titus opine that the cervical (neck) disk herniations and disk desiccation were caused by the shopping cart bump to the back of the decedent’s calf.

The defendant also produced its competing expert opinion authored by Dr. Larry A Rotenberg, M.D. Dr. Rotenberg noted that the decedent “had long standing, chronic and severe mental health issues, as well as drug and alcohol issues, as well as significant difficulties in interpersonal relationships.” See defendant’s motion for summary judgment, exhibit “D” — Rotenberg letter/report (July 18, 2013). Further, Dr. Rotenberg opined “within a reasonable degree of medical certainty that Mr. Kowzun’s death on 05/09/11, was not caused by the incident on the bus, which occurred on August 12, 2010.” Id.

On March 28, 2014, the plaintiff filed “plaintiff’s answer in opposition to defendant’s motion for summary judgment” and “plaintiff’s memorandum of law in opposition to defendant’s motion for summary judgment.” In the answer in opposition, the plaintiff argues that genuine issues of material fact exist as to whether the defendant was negligent and whether the defendant’s negligence caused or contributed to the decedent’s death. The plaintiff further asserts that this case falls within an exception to governmental immunity, allowing for recovery. In support of the assertion that genuine issues of material fact exist with regard to causation, the plaintiff offers that Dr. Titus opines in his expert report that: “These events and medical problems did contribute to his eventual demise . . . Plaintiff’s memorandum of law in opposition to defendant’s motion for summary judgment, exhibit “C.” The plaintiff argues that this statement is sufficient proof of causation, barring entry of summary judgment.

This matter was placed on the argument list of May 27, 2014, and argument was heard.

Legal Standard

Pennsylvania Rule of Civil Procedure 1035.2 states:

After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to the jury.

Pa.R.C.P. 1035.2.

Further, under Pa.R.C.P. 1035.3(a), the nonmoving party may not rest upon mere allegations or denials of the pleadings but must file a response within thirty (30) days after service of the motion. In other words, the nonmoving party has a clear and affirmative duty to respond to a motion for summary judgment. Harber Phila. Ctr. City Office Ltd. v. LPCI Ltd. P’ship, 764 A.2d 1100, 1104 (Pa. Super. 2000). Also, Pa.R.C.P. 1035.3(d) specifically provides that “[sjummary judgment may be entered against a party who does not respond.” Id.

Summary judgment may be granted only in the clearest of cases where the record shows that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. P.J.S. v. Pa. State Ethics Comm’n, 723 A.2d 174, 176 (Pa. 1999) (citing Marks v. Tasman, 589 A.2d 205 (Pa. 1991)). Summary judgment is only appropriate in the clearest of cases, because an order favorable to the moving party will prematurely end an action. Scopel v. Donegal Mut. Ins. Co., 698 A.2d 602, 605 (Pa. Super. 1997) (citations omitted). The moving party has the burden of proving the non-existence of any genuine issue of material fact. O’Rourke v. Pa. Dep’t of Corr., 730 A.2d 1039, 1041 (Pa. Commw. Ct. 1999) (citing Kee v. Turnpike Comm’n, 722 A.2d 1123 (Pa. Commw. Ct. 1998)). “Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which it bears the burden of proof... establishes the entitlement of the moving party to judgment as a matter of law.” Murphy v. Duquesne Univ. of the Holy Ghost, 777 A.2d 418, 429 (Pa. 2001) (quoting Young v. PennDOT, 744 A.2d 1276, 1277 (Pa. 2000)) (omission in original) (internal quotation marks omitted). The record must be viewed 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. Ertel v. Patriot-News Co., 674 A.2d 1038, 1041 (Pa. 1996) (citation omitted).

Under the Nanty-Glo Rule, summary judgment may not be granted where the moving party relies exclusively on oral testimony, either through testimonial affidavits or deposition testimony to establish the absence of a genuine issue of material fact. Nanty-Glo Borough v. American Surety Co., 163 A. 523, 524 (Pa. 1932); see also Penn Center House, Inc. v. Hoffman, 553 A.2d 900, 903 (Pa. 1989); White v. Owens Corning Fiberglas, Corp., 668, A.2d 136, 142 (Pa. Super. 1995); Garcia v. Savage, 586 A.2d 1375, 1377-78 (Pa. Super. 1991); O’Rourke, 730 A.2d at 1041 (citing Kaplan v. Se. Pa. Transp. Auth., 688 A.2d 736 (Pa. Commw. Ct. 1997)).

Discussion

A. Wrongful Death and Survival Causes of Action

We first address the defendant’s second argument, that the plaintiff has offered insufficient proof of causation to sustain the separate causes of action for wrongful death (count II) and survival (count III).

These actions are codified in Pennsylvania’s wrongful death act and survival act, 42 Pa.C.S. §§ 8301 and 8302. The purpose of the wrongful death Act is to compensate the spouse, children or parents of a decedent for the loss of earnings of the deceased occasioned by the negligence of a defendant(s). The survival act allows a personal injury action brought by the decedent’s personal representative. Both are derivative actions, in that each is based on the existence of an underlying negligence action.

A plaintiff must prove the following four elements to recover in an action for negligence:

1. A duty or obligation recognized by law.
2. A breach of the duty.
3. Causal connection between the actor s breach of the duty and the resulting injury.
4. Actual loss or damage suffered by the complainant.

Lux v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281, 1286 (Pa. Super. 2005) (emphasis in original).

With regard to the third element, a plaintiff must establish a causal connection between the defendant’s breach and the plaintiff’s injury by showing that the defendant’s conduct was the proximate cause of the plaintiff’s injury. See Hamil v. Bashline, 392 A.2d 1280, 1284 (Pa. 1978). In order to do so, “[a] plaintiff has the burden of proving that the defendant’s negligent act was a ‘substantial factor’ in bringing about the injuries for which damages are sought.” Frangis v. Duquesne Light Co., 335 A.2d 796, 799 (Pa. Super. 1975). The substantial factor test for determining whether a party’s negligence was the proximate or legal cause of another’s injury is as follows:

The actor’s negligent conduct is a legal cause of harm to another if:

(a) his conduct is a substantial factor in bringing about the harm, and
(b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in harm.

Restatement (Second) of Torts § 431 (1965); see Wisniewski v. Great Atlantic & Pacific Tea Co., 323 A.2d 744, 748 (Pa. Super. 1974).

Section 433 of the Restatement (Second) of Torts sets forth a method of determining whether concurrent negligent conduct is a substantial factor in producing the injury:

The following considerations are in themselves or in combination with one another important in determining whether the actor’s conduct is a substantial factor in bringing harm to another:
(a) the number of other, factors which contribute in producing the harm and the extent of the effect which they have in producing it;
(b) whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible;
(c) lapse of time.

Restatement (Second) of Torts § 433 (1965).

Although Pennsylvania law has not change with regard to causation, we do note that Gorman v. Costello, 929 A.2d 1208 (Pa.Super 2007), discussed the confusion related to the difficulty in drafting appropriate jury charges defining causation. Gorman defined the term causation as the “factual cause” of the damages. Id. at 1212. Further, the Gorman Court cited from the Pennsylvania Suggested Standard Civil Jury Instructs (SSJT Civ) 3.15 that:

Conduct is a factual cause of harm when the harm would not have occurred absent the conduct. An act is a factual cause of an outcome it, in the absence of the act, the outcome would not have occurred.

The determination with regard to causation is normally a question of fact for the jury: “the question is to be removed from the jury’s consideration only where it is clear that reasonable minds could not differ on the issue.” Hamil, 392 A.2d 1284-85. Further, our Supreme Court has observed that “the determination of whether an actor’s conduct was a substantial cause of the injuries complained of should not be taken from the jury if the jury may reasonably differ about whether the conduct of the actor has been a substantial factor in causing the harm.” Taylor v. Jackson, 643 A.2d 771, 776 (Pa. Commw. Ct. 1994) (quoting Ford v. Jeffries, 379 A.2d 111 (Pa. 1977)). A plaintiff need not exclude every possible explanation; instead, “it is enough that reasonable minds are able to conclude that the preponderance of the evidence shows defendant’s conduct to have been a substantial cause of the harm to plaintiff.” Hamil, 392 A.2d at 1285.

With regard the evidence required to prove causation, “if the ultimate determinations lie beyond the knowledge or expertise of the average layperson, expert testimony is permitted (and sometimes required) to aid the jury in understanding the factors involved and the teaching of the pertinent discipline with respect thereto.” Id. Moreover, “it is generally acknowledged that the complexities of the human body place questions as to the cause of pain or injury beyond the knowledge ofthe average layperson.” Id. As such, expert medical testimony must be employed and such testimony must “establish that the injury in question did, with a reasonable degree of medical certainty, stem from the negligent act alleged.” Id. (emphasis added). Unless a plaintiff’s medical expert can form an opinion with a reasonable degree of medical certainty, “there is nothing on the record which a jury can make a decision with sufficient certainty so as to make a legal judgment.” Id. (quoting McMahon v. Young, 276 A.2d 534 (Pa. 1971)).

Plaintiff’s brief in opposition to summary judgment misses the legal argument asserted by the defendant in relation to counts II and III. Instead, plaintiff identifies and argues one issue in its brief: there exists an “issue of material fact as to whether defendant was negligent as to its operation of its bus such that granting summary judgment to defendant would be improper.” Plaintiff’s brief at 1.

Actually, defendant’s theory as to the propriety of summary judgment for counts II and III involves the attack on the factual record produced by plaintiff. The defendant asserts that plaintiff’s evidence, even if accepted by the jury, cannot establish the element of causation for the claims of wrongful death and survival.

Here, plaintiff acknowledges in its complaint that the decedent’s immediate cause of death was an accidental overdose of medication. Complaint ¶ 7. We submit that the drug overdose is the factual cause. However, we will also agree that it may be possible to have a concurring cause of death.

Under Powell v Drumheller, 653 A.2d 619 (Pa. 1995), our Supreme Court has defined a concurring cause as one which is “also responsible for producing the injury.” Id. at 622. According to the Powell Court, “[if] a defendant’s actions were a substantial factor in bringing about the harm, the fact that there is a concurring cause does not relieve the defendant of liability.” Id. The Powell court recognized concurrent causes exist where each is a substantial factor in causing the harm.

The plaintiff here attempts to commingle separate and independent injuries — the pain allegedly cause by the bump to the back of the leg by a shopping occurring in 2010, with the death caused by the drug overdose in 2011 — and then, without any reasonable support, wants this court to accept an assertion that allegation of pain in the decedent’s leg is a factual cause of a drag overdose, even though any reasonable review of Dr. Titus’ report suggests that that the calf injury, caused by the shopping cart, resolved months prior to Dr. Titus prescribing pain medication for the decedent’s degenerating cervical spine.

The only record that the plaintiff has relies upon for the claim that the shopping cart hitting the leg caused the decedent’s death is that notation in Dr. Titus report, which sets forth that “These events [of which the bump in the back of the leg by the shopping cart is one of the “events”] and medical problems did contribute to [the decedent’s] eventual demise in April, 2011.” Dr. Titus does not state that the shopping cart bumping into the back of the leg upon the sudden stop of the LANTAbus caused the death of Mr. Kowzun, was the cause of the overdose, or was a factual cause of his death. Further, his reference that “events and medical problems did contribute to his eventual demise” is not an opinion as to causation nor is it a finding made to a reasonable degree of medical certainty.

Clearly, the only reasonable conclusion, based upon the entire record, is that the direct, factual cause of the decedent’s death was the decedent’s abuse of his prescription medication. Frankly, given the record presented to us and considering Dr. Titus’ opinion, it would be far more reasonable to conclude that the physician who prescribed the medication to “control” the decedent’s pain is a far more likely concurring cause of the decedent’s death than the defendant bus company.

Finally, we conclude that after applying the criteria set forth in section 433 of the Restatement (Second) of Torts for evaluating concurrent causes, the alleged negligence of the defendant is not a substantial factor or concurring factor in causing the decedent’s death. First, with regard to the other contributing factors, chief among them is that the decedent died from an overdose of pain medication, a fact conceded by both parties. The decedent did not die as a direct injury sustained during the incident in question. Second, the defendant’s conduct in this case has not created a force or series of forces in active or continuous operation until the time of the decedent’s death. Instead, the decedent received medication, prescribed by a doctor, to address “multilevel disk disease of the cervical spine involving at least three levels with disk herniations and disk desiccation,” which the decedent abused and caused his own death by overdose. Third, approximately a year elapsed from the date of the incident until the date of the decedent’s death. While the third prong, the passage of time, does not warrant summary judgment by itself, in combination with the other facts it contributes in establishing that the shopping cart incident was not a substantial factor in the decedent’s death.

In conclusion, Dr. Titus’s medical expert report is insufficient to support causation in this case. The report appears to be a summary of Dr. Titus’s treatment of the decedent, with a passing reference to “events” and other “medical problems” that “did contribute” to the decedent’s death. It is not a definitive report that establishes the shopping cart bump to the back of the decedent’s leg as a factual or substantial cause of the decedent’s death.

There is no reasonable record by which a jury can find for plaintiff. Therefore, we grant the defendant’s motion for summary judgment as to counts II and III for wrongful death and survival.

B. Negligence Cause of Action

With regard to the negligence claim, however, we are on a different footing. Summary judgment should not be granted for the negligence claim with respect to the damages sought as a result of the injuries the decedent incurred after he was struck on the back of his leg by the shopping. First, the defendant is a “local agency” pursuant to the Tort Claims Act, 42 Pa.C.S.A. § 8541, etseq., which limits the recovery available to the plaintiff. The plaintiff has asserted that injuries to the decedent were caused by “the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties.” 42 Pa.C.S.A. § 8542(a)(2). Further, the alleged act by the local agency or its employees falls within one of the exceptions to governmental immunity, vehicle liability, as the plaintiff asserts that the defendant or its employee acted negligently, which caused the injury to the decedent. See 42 Pa.C.S.A. § 8542(b)(1).

Damages, however, may be limited under the Tort Claims Act, under the following provision:

(c) Types of losses recognized. —• Damages shall be recoverable only for:
(1) Past and future loss of earnings and earning capacity.
(2) Pain and suffering in the following instances:
(i) death; or
(ii) only in cases of permanent loss of a bodily function, permanent disfigurement or permanent dismemberment where the medical and dental expenses referred to in paragraph (3) are in excess of $1,500.
(3) Medical and dental expenses including the reasonable value of reasonable and necessary medical and dental services, prosthetic devices and necessary ambulance, hospital, professional nursing, and physical therapy expenses accrued and anticipated in the diagnosis, care and recovery of the claimant.
(4) Loss of consortium.
(5) Loss of support.
(6) Property losses.

42 Pa.C.S.A. §. 8553(c).

As demonstrated by the inclusion of this paragraph, recovery for pain and suffering requires proof of death, permanent loss of a bodily function, or permanent disfigurement or dismemberment if certain medical expenses exceed $1,500. Here, the plaintiff has proffered facts that support a finding that the decedent suffered an injury to his calf as a result of this incident. The defendant has not contested this fact. Additionally, there is no basis in the record to determine if the $1,500 cap applies. Thus, this issue must be submitted to the trier of fact.

The plaintiff has also presented sufficient evidence of negligence causing injury to the decedent. A reasonable jury could find that the defendant’s negligence caused injury to the- decedent, as evidenced by deposition testimony of the sudden stop, the shopping cart striking the decedent, and the decedent’s immediate complaint of injury. Dr. Titus’s report also indicates the existence of an injury to the decedent’s calf as a result of the incident.

We therefore deny the plaintiff’s motion for summary judgment with regard to the cause of action for negligence brought in count I.