author: ALBRIGHT, J,

text:
    J.P. Morgan Chase Bank v. Caplen

      Neil E. Jokelson, for plaintiff.

      Stephen M. Hladik, for defendant.
    March 28, 2011
   ALBRIGHT, J,

'The defendant, Neil B. Caplen, appeals from this court’s order dated, June 2, 2010, granting the plaintiff JP Morgan Chase Bank’s motion for summary judgment and entering judgment in favor of the plaintiff, JP Morgan Chase Bank, as trustee, c/o Wilshire Credit Corporation and against the defendant, Neil B. Caplen, in the amount of $404,507.59, together with interest at the legal rate and costs. For the reasons that follow, the undersigned believes that the order of June 2, 2010 should be affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

On June 12, 2001, Neil B. Caplen executed and delivered a promissory note with an adjustable rate rider (the “note”) in the amount of two hundred twenty-eight thousand dollars ($228,000.00) to First Franklin Financial Corporation. To secure his obligation under the note, the defendant executed a mortgage on the same date (the “mortgage”), encumbering real estate located at 67 High Gate Lane, Blue Bell, Montgomery County, Pennsylvania, 19422 (the “property”). [Am. Compl. at ¶ 5]. Two days later, on June 14,2001, in Santa Clara County, California, First Franklin Financial Corporation assigned the note and the mortgage to JP Morgan Chase Bank, as trustee [the “assignment”]. [Mot. to Amend Caption and Compl. at Ex. “A”; Am. Compl. at ¶2^)]

On or about October 1, 2003, Mr. Caplen defaulted on the mortgage, precipitating the plaintiff’s instituting this lawsuit with the filing of a complaint in mortgage foreclosureonFebruary 24,2004. [Am. Compl. a^8].The defendant responded with his answer and new matter, filed on March 13, 2004, which was followed by the plaintiff’s filing of an amended complaint and second answer and new matter filed by Mr. Caplen, admitting therein the identity of the plaintiff. [Def.’s Ans. at ¶ 1, 11/1/06]. Pursuant to the undersigned’s order, dated November 30, 2007, discovery in this case was closed on February 1,2008, and the plaintiff, being of the opinion that no genuine issues of material fact remained in a record devoid of evidence upon which the defendant might rely or employ in defense of the plaintiff’s mortgage foreclosure action, filed its motion seeking the entry of summary judgment against the defendant mortgagor whose formal response was made on April 3, 2009. After the summary judgment request was briefed and argued, the undersigned, by order dated June 2, 2010, granted the plaintiff’s motion and entered judgment in rem in favor of the plaintiff and against Mr. Caplen in the amount of $404,507.59, together with interest at the legal rate and costs. That order was appealed by the defendant to the Superior Court of Pennsylvania, and, on July 26,2010, Mr. Caplen timely filed and served upon the undersigned his concise statement of matters complained of on appeal (Pa.R.A.P. “1925(b) Statement”), which provides the following:

1. The court erred in granting summary judgment to the plaintiff.
2. The plaintiff should not have prevailed given its inability to identify the alleged trust for which JP Morgan Chase Bank was allegedly acting as trustee or its alleged powers as trustee, the terms of the alleged trust, the type of purported trust it was acting on behalf of or even whether the alleged trust arose as a matter of law or was written.
3. The plaintiff should not have prevailed in its summary judgment motion as it could not even state or prove that the purported and as yet unidentified trust for which it purported to act as trustee still exists.
4. The plaintiff should not have prevailed in its summary judgment motion as it could not even state or prove that the purported and as yet unidentified trust still owned the mortgage in question or whether it had assigned the subject matter to another third party or has distributed or conveyed any purported entitlement it has to any purported beneficiary of said trust.
5. The plaintiff, in its capacity as an alleged “trustee” for a trust which it is unable to identify, was not the real party in interest and could not act on behalf of the real part in interest whose identity remains unascertained.

DISCUSSION

In Pennsylvania, summary judgment is appropriate where the record shows that no genuine issue of material fact exists as to any necessary element of the cause of action or defense which could be established by additional discovery and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035.2. In considering the merits of a motion for summary judgment, the trial court must view the record in the light most favorable to the non-moving party and the moving party has the burden of proving that no genuine issue of material fact exists. Fine v. Checcio, 582 Pa. 253, 265, 870 A.2d 850, 857 (Pa. 2005). In an action for mortgage foreclosure, the entry of summary judgment is proper if the mortgagor admits that the mortgage is in default, that he has failed to pay interest on the obligation and that the recorded mortgage is in the specified amount. See Cunningham v. McWilliams, 714 A.2d 1054 at 1057 (Pa. Super. 1998). On appeal from a grant of summary judgment, the Superior Court will reverse a grant of summary judgment only if the trial court has either committed an error of law or abused its discretion. Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 585, 812 A.2d 1218, 1221 (Pa. 2002).

Mr. Caplen presents essentially one issue on appeal, namely, that the plaintiff, JP Morgan Chase Bank, as trustee, is not a real party in interest because it has not identified the trust from which it derives its powers, and, therefore, has no right to proceed. [See Def.’s Resp. to Pl.’s Mot. for Summ. J., 4/3/09, at ¶ 20.] That lone issue, however, appears to have been fairly easily resolved since the defendant, having previously admitted JP Morgan Chase Bank as trustee’s status as the proper party plaintiff to this lawsuit, has, by implication, recognized the bank’s existence as the real party in interest entitled to initiate foreclosure against Mr. Caplen. Furthermore, having failed to effectively deny those averments contained in the plaintiff’s amended complaint which are pertinent to Mr. Caplen’s alleged default, the defendant has essentially admitted those allegations, thereby rendering nonexistent any remaining or potential genuine issues of material fact which might otherwise deprive the plaintiff of its resort to the entry of summary judgment in this case. [Def.’s Ans. to Pl.’s Am. Compl. 1, 11/1/06]

Pursuant to Pennsylvania Rule of Civil Procedure 1147, which governs mortgage foreclosure actions, a plaintiff must set forth the following criteria in its complaint:

(1) the parties to and the date of the mortgage, and of any assignments, and a statement of the place of record of the mortgage and assignments;
(2) a description of the land subject to the mortgage;
(3) the names, addresses and interest of the defendants in the action and that the present real owner is unknown if the real owner is not made a party;
(4) a specific averment of default;
(5) an itemized statement of the amount due; and
(6) a demand for judgment in the amount due. Pa. R.C.P. 1147(a)(l)-(6).

The amended complaint filed in this case by JP Morgan Chase Bank, as trustee, contains the averments necessary to satisfy each of the criteria described in Rule 1147. [See Am. Compl. & Pl.’s Mot. to Am. Compl. at ].

Pennsylvania Rule of Civil Procedure 1029 requires a defendant to admit or deny each averment of fact within the complaint with specificity, stating that “[ajverments in a pleading to which a responsive pleading is required are admitted when not denied specifically by necessary implication. A general denial or a demand for proof, except as provided by subdivisions (c) and (e) of this rule, shall have the effect of an admission.” Pa.R.C.P. 1029(b). With the exception of one paragraph, the general denials set forth in the defendant’s answer to the plaintiff’s amended complaint with new matter render admitted each of the averments in the plaintiff’s amended complaint. [See Def.’s Ans. to Pl.’s Am. Compl. ¶¶ 1-14]

Paragraph 12 of the plaintiff’s amended complaint states that “Notice pursuant to Act 91/160, was sent to defendant on 12/31/03. Atrue and correct copy of the notice sent to the defendant is attached hereto and marked as Exhibit ‘D.’” [Pl.’s Am. Compl. a^ 12]. Mr. Caplen responded, “Denied as beyond the knowledge of the defendant. Strict proof is demanded. By way of further answer, the notice attached as Exhibit ‘D’ is not proper notice and fails to confirm [sic] to the requirements of Act 91/160.” [Def.’s Ans. To Pl.’s Am. Compl. at ¶ 12, 11/1/06] However, pursuant to 35 Pa.C.S. § 1680.403c.(a), a mortgagee need only “send to such mortgagor at his or her last known address the notice provided in subsection (b).” Despite Mr. Caplen’s statement to the contrary, notice pursuant to Act 91 was, in fact, properly served upon him on November 30, 2003, as evidenced by the plaintiff’s amended complaint, to which was attached the required notice, which was, as noted, addressed to the defendant at the property which is the subject of this action. Furthermore, given the defendant’s failure to raise any issue regarding the propriety of the “Notice” in his 1925(b) statement, the trial court has determined that Mr. Caplen has opted not to pursue this issue on appeal.

In examining the only specific issue raised on appeal by Mr. Caplen, one’s attention must first be drawn to paragraph 1 of the plaintiff’s amended complaint, which states, “Plaintiff is JP Morgan Chase Bank, as trustee (Plaintiff), with an address in care of Wilshire Credit Corporation, 14523 SW Millikan Way, Suite 200, Beaverton, OR 97005.” [Pl.’s Am. Compl. at 1, 5/3/05] Instead of objecting to this averment, as he now does, Mr. Caplen, as noted above, “[a]dmitted” in his answer, and thereby conceded that the plaintiff’s representative status and capacity to sue were correctly described and that JP Morgan Chase Bank, as trustee c/o Wilshire Credit Corporation, was the proper party plaintiff in this case and real party in interest. [Def.’s Ans. to Pl.’s Am. Compl. at ¶ 1, 11/1/06] Pertinent to any discussion of the plaintiff’s standing as the real party in interest in this case is the application of Pa. R.C.P. 2002 which provides:

(a) Except as otherwise provided in clauses (b), (c) and (d) of this rule, all actions shall be prosecuted by and in the name of the real party in interest, without distinction between contract under seal and parol contracts.
(b) A plaintiff may sue in his or her own name without joining as plaintiff or use-plaintiff any person beneficially interested when such plaintiff
(1) is acting in a fiduciary or representative capacity, which capacity is disclosed in the caption and in the plaintiff’s initial pleading.... Pa. R.C.P. 2002(a)-(b)(l) (emphasis added).

Further, in the context of this rule and as demonstrated by all of the relevant pleadings in this case, JP Morgan Chase Bank, as trustee, is acting in its fiduciary and representative capacity for the real party in interest, the “trust.” As required under Pa.R.C.P. 2002(b)(1), the plaintiff has sufficiently disclosed the capacity in which it is acting and its authority to pursue this mortgage foreclosure action as noted in both the case caption and in the body of the amended complaint itself. Furthermore, it is well-accepted that “the trustee is the proper party to sue or be sued on behalf of a trust.” 76 AmJur.2d Trusts, § 656. “A trustee is a necessary party to assert or defend title to trust property, and is an indispensable party to an adjudication of rights of beneficiaries in a trust.” 76 AmJur.2d Trusts § 679.

Given the fact that the plaintiff and defendant are parties to the underlying mortgage — the plaintiff having attained its status through a properly executed and recorded assignment — any contention by Mr. Caplen that the plaintiff somehow lacks the authority to bring this action is meritless. See Collins v. Allstate Idem. Co., 626 A.2d 1162, 1167 (Pa. Super. 1993) (concluding in the context of an insurance dispute between an insured-plaintiff and insurer-defendant, the fact that the United States might later have an independent statutory right of reimbursement against the insured-plaintiffs did nothing to undermine insured-plaintiff’s standing as a real party in interest).

Even if one might choose to assume that the defendant’s admission as to the plaintiff’s status as a real party in interest was, somehow, inconclusive of that fact, Mr. Caplen had not adduced or produced any evidence to the contrary that might tend to negate that to which he had previously subscribed and acknowledged as having established the plaintiff’s standing to seek a foreclosure and enforcement of its right to recovery in this action. As such, there remains no legitimate dispute regarding what amounts simply to the defendant, admittedly, being in default of his note and mortgage, originally held by the mortgagee, First Franklin Financial Corporation, and subsequently assigned to the plaintiff herein, JP Morgan Chase Bank, As trustee. There is absolutely nothing in the record of this case which might, evidentially, warrant either the trial court’s invalidation of the assignment itself or its preclusion of the assignees from pursuing its remedies secured by that instrument. Ertel v. Patriot-News Co.,544 Pa. 93, 103, 674 A.2d 1038, 1043 (Pa. 1996).

CONCLUSION

Based upon the foregoing, the trial court respectfully submits that the order, dated June 2, 2010, granting the plaintiff’s motion, for summary judgment and entering judgment in favor of the plaintiff, JP Morgan Chase Bank, as trustee c/o Wilshire Credit Corporation, and against the defendant, Neil B. Caplen, in the amount of $404,507.59 together with interest at the legal rate and costs, should be affirmed.

      . On June 19,2001, the mortgage was duly recorded in the office of the recorder of deeds of Montgomery County, Pennsylvania “in mortgage book 9028, page 1074, et seq.” [See Am. Compl., at ¶2].

      . On November 7, 2003, the assignment was duly recorded in the office of the recorder of deeds of Montgomery County, Pennsylvania in mortgage book “10853, page 168.” [See Pl.’s reply to def.’s new matter., a^ 1,3/31/2004],

      . A “real party in interest” is a person who “has the power to discharge the claim upon which the suit is brought and to control the prosecution of the action brought to enforce rights arising under the claim.” See Collins v. Allstate Idem. Co., 626 A.2d 1162, 1167 (Pa. Super. 1993) (quoting Std. Pa. Prac. 2d § 14:17 (1981)).

      . A defendant cannot raise a violation of Pa.R.C.P 2002 in new matter and instead the issue shouldbe asserted in preliminary objections.” Spitzer v. Smith, 10 Pa. D. & C.2d 243 (1942).

      . A defendant may not raise a violation of Pa.R.C.P. 2002 in new matter and instead that issue should be asserted in preliminary objections.” Spitzer v. Smith, 10 Pa. D & C.2w 243 (1942).


source: Caselaw Access Project

author: DANTOS, J.,

license: Public Domain

text:
    Commonwealth v. Copeland

      Jeffrey S. Dimmig, deputy district attorney, for Commonwealth.

      Irene Chiavaroli-Johns, for defendant.
    March 30, 2011
   DANTOS, J.,

Defendant, Dante Copeland, has been charged with robbery, kidnapping for ransom, criminal conspiracy to commit theft by unlawful taking, receiving stolen property, two (2) counts of unlawful restraint, and conspiracy to commit robbery. Presently before this court is defendant’s motion to transfer case to juvenile court. 42 Pa. C.S.A. § 6322. A hearing relative to defendant’s motion to transfer case to juvenile court was conducted before this court on February 24, 2011. At the evidentiary hearing, the defendant presented the testimony of Lehigh County juvenile probation officers PatrickBest and Aaron Lichtfus. Additionally, this court reviewed the transcript of the preliminary hearing conducted on November 17, 2010, before District Justice Anthony Rapp.

Initially we note that at a decertification hearing, the defendant bears the burden to establish by a preponderance of the evidence that the transfer will serve the public interest. 42 Pa. C.S.A. § 6322(a); see also Commonwealth v. Sanders, 814 A.2d 1248, 1250 (Pa. Super. 2003). To resolve the question of whether the defendant has satisfied his burden of proof, consideration must be given to the factors enumerated in the juvenile act, 42 Pa.C.S.A. § 6355(a)(4)(iii). The factors contained in aection 6355(a) (4)(iii) are the following:

(A) the impact of the offense on the victim or victims;
(B) the impact of the offense on the community;
(C) the threat to the safety of the public or any individual posed by the child;
(D) the nature and circumstances of the offense allegedly committed by the child;
(E) the degree of the child’s culpability;
(F) the adequacy and duration of dispositional alternatives available under this chapter and in the adult criminal justice system; and
(G) whether the child is amenable to treatment, supervision or rehabilitation as ajuvenile by considering the following factors:
(I) age;
(II) mental capacity;
(III) maturity;
(IV) the degree of criminal sophistication exhibited by the child;
(V) previous records, if any;
(VI) the nature and extent of any prior delinquent history, including the success or failure of any previous attempts by the juvenile court to rehabilitate the child;
(VII) whether the child can be rehabilitated prior to the expiration of the juvenile court jurisdiction;
(VIII) probation or institutional reports, if any;
(IX) any other relevant factors. 42 Pa. C.S.A. § 6355(a) (4)(iii).

While the Juvenile Act requires that a decertification court consider all of the amenability factors, it is silent as to the weight assessed to each by the court. Commonwealth v. Jackson, 555 Pa. 37, 44, 722 A.2d 1030, 1033 (Pa. 1999); Sanders, 814 A.2d at 1251. The ultimate decision whether to decertify a matter to juvenile court lies within the sole discretion of the decertification court. Jackson at 45, 722 A.2d at 1034. See also Commonwealth v. Coto, 562 Pa. 32, 40, 753 A.2d 217, 222 (2000).

The incident which brought about this prosecution is alleged to have occurred on November 10, 2010. On that date, John Sanchez received a telephone call from an acquaintance, co-defendant Ruben Valdez, inquiring if Mr. Sanchez would do him a favor and drive him to his house to pick up his clothes. (N.T. 11/17/2010, pp. 4-6, 19) Mr. Sanchez agreed to do this favor for him. (N.T. 11/17/2010, p. 6) Mr. Sanchez drove his vehicle to 332 W. Brookdale Street, Allentown, Lehigh County, Pennsylvania and picked up co-defendant Valdez and defendant Dante Copeland. (N.T. 11/17/2010, pp. 6, 21) At that time, co-defendant Valdez entered Mr. Sanchez’s vehicle as the front passenger, and defendant Dante Copeland sat in the rear driver’s side seat behind Mr. Sanchez. (N.T. 11/17/2010, pp. 6, 22)

As directed, Mr. Sanchez drove to 715 N. 9th Street, Allentown, Lehigh County, where co-defendant Valdez entered the house and returned a few minutes later with clothing. (N.T. 11/17/2010, p.6) Then Mr. Sanchez was requested to drive to a friend’s residence located at the Mack Pool apartments. (N.T. 11/17/2010, pp. 7, 24) When they arrived at this desired location, Mr. Sanchez parked and turned off his vehicle. (N.T. 11/17/2010, p. 7) Suddenly, Defendant Dante Copeland put a shoestring, rope or something similar around Mr. Sanchez’s neck and started to choke him. (N.T. 11/17/2010, pp. 7-8,22,24-25, 46-47) At the same time, co-defendant Valdez brandished a knife, placed it to Mr. Sanchez’s throat, and threatened to kill Mr. Sanchez if he did not give them three thousand ($3,000.00) dollars. (N.T. 11/17/2010, pp. 8-9, 25-27) Mr. Sanchez’s hands were bound with electrical tape. (N.T. 11/17/2010, pp. 9, 31-32) The co-defendants then ordered Mr. Sanchez to place telephone calls to obtain the desired money, by reading a script that had been written on a note. (N.T. 11/17/2010, pp. 8-9, 27)

The first telephone call that was placed was to Mr. Sanchez’s mother. (N.T. 11/17/2010, p. 9) However, Mr. Sanchez’s mother did not believe what her son was saying pursuant to the scripted conversation and hung up. (N.T. 11/17/2010, pp. 9, 29, 49-50, 52-53) Next, co-defendant Valdez called Mr. Sanchez’s father. (N.T. 11/17/2010, p. 10) This time co-defendant Valdez spoke directly with the father and demanded one thousand ($1,000.00) dollars. (N.T. 11/17/2010, p. 10) Mr. Sanchez’s father was advised that if he did not provide them with one thousand ($1,000.00) dollars within two (2) hours, they were going to kill his son. (N.T. 11/17/2010, pp. 10,29) Mr. Sanchez’s father left work immediately to travel to Brooklyn, New York, to acquire the one thousand ($1,000.00) dollars ransom. (N.T. 11/17/2010, pp. 10, 30)

After this telephone call was concluded, Mr. Sanchez was ordered into the passenger seat of the car, and co-defendant Valdez drove the vehicle back to the residence located on Broolcdale Street. (N.T. 11/17/2010, pp. 11, 31-32) At the residence, Mr. Sanchez, still bound, was placed in the bathroom by defendant Dante Copeland and co-defendant Valdez. (N.T. 11/17/2010, pp. 11, 33-34, 60, 63) Co-defendant Valdez gave co-defendant Lorenzo Dyer the knife and put him in charge of watching the victim. (N.T. 11/17/2010, pp. 12, 34, 60-61) The co-defendants took Mr. Sanchez’s cellular phone and keys off his person. (N.T. 11/17/2010, pp. 12,33)

Over the next several hours, the co-defendants placed telephone calls to the victim’s family members in an effort to put pressure on them to obtain the money. (N.T. 11/17/2010, pp. 12, 37, 39) At one point, Mr. Sanchez’s sister spoke with the co-defendants and requested more time to gather the money. (N.T. 11/17/2010, pp. 13, 39) Angered, defendant Dante Copeland grabbed a cigar cutter and told the victim’s sister that “if you think I’m playing, let’s chop off one of your fingers and send it over there.” (N.T. 11/17/2010, p. 13) Defendant Dante Copeland actually took the cigar cutter and placed it on the victim’s finger. (N.T. 11/17/2010, pp. 13, 47)

Thereafter, at approximately 8:00 p.m., defendant Dante Copeland left the residence. (N.T. 11/17/2010, pp. 14, 65) Upon his return, he noticed police officers outside. (N.T. 11/17/2010, p. 14) Consequently, defendant Dante Copeland ran into the residence, related to the co-defendants that the police were on scene, put the victim in the closet and ordered him to “act cool,” and turned out the lights. (N.T. 11/17/2010, pp. 14, 36, 42-43, 56-57) Defendant Dante Copeland hid in a closet from the police. (N.T 11/17/2010, p. 3 6) Approximately thirty-five to forty-five minutes later, at about 12:10 a.m., the police knocked on the door of the residence and they were subsequently let into the house by co-defendant Valdez. (N.T. 11/17/2010, pp. 15, 57-58) The victim did not immediately relate to the officers what had transpired. (N.T. 11/17/2010, pp. 42-44) Instead, he was taken to Lehigh County prison, along with the co-defendants, it appearing that he participated in the scheme to extract money from his parents. (N.T. 11/17/2010, pp. 42-43, 65) Approximately forty-five (45) minutes later, however, Mr. Sanchez revealed to detective Louis Collins of the Allentown Police Department what had occurred and he was released from prison. (N.T. 11/17/2010, p. 43-44, 67-68)

Defendant Dante Copeland was bom on May 8, 1994. He was sixteen (16) years old at the time of this incident, and is presently just shy of seventeen (17) years old. Prior to being arrested in the within matter, the defendant was involved in the juvenile criminal system. Specifically, in June of 2007, the Lehigh County Juvenile Probation Department received a referral involving the defendant based on a charge of disorderly conduct that stemmed from an attempted fight on the property of the Raub Middle School. Specifically, an officer from the Allentown Police Department witnessed a crowd of students surrounding the defendant who had removed his shirt in preparation of fighting another student. When the officer instructed the defendant to “back off,” the defendant fled and a foot pursuit ensued. Ultimately the defendant was caught by the police officer. The defendant was placed on a consent informal adjustment for this offense.

A second referral was received by the Lehigh County Juvenile Probation Department with regard to this defendant based on a non-payment charge. At that time the defendant was given community work service to perform in lieu of the payments owed. The defendant completed the ordered community work service.

Next, on March 24, 2010, the defendant was detained by the Lehigh County Juvenile Probation Department arising from an incident in Catasauqua involving the defendant discharging a firearm. In particular, the defendant brandished a handgun while on a playground in Catasauqua. He fired the handgun into the air while a large number of children and families were present, thereby causing a great panic and commotion at the park. The defendant fled after this incident. The police were notified and officers from the Catasauqua Police Department arrived on scene. Through their investigation, the officers learned the identity of the shooter. When they apprehended the defendant, he possessed eleven (11) bags of marijuana on his person. The defendant was adjudicated delinquent based on the charges of recklessly endangering another person and possession of marijuana. In reference to this referral, the defendant was placed in a sixty (60) day leadership development program through Cornell Abraxus. The defendant completed this program on June 21, 2010, but remained on probation through the Lehigh County Juvenile Probation Department. The defendant had numerous probation violations, which included not abiding by his curfew, missing three (3) scheduled appointments with his probation officer and interacting with people with whom he was prohibited.

Another referral was received on August 17, 2010, by the Lehigh County Juvenile Probation Department in relation to this defendant. On this date, the defendant was the passenger in a vehicle which the driver did not have permission to use. The subject vehicle was stopped by officers and the defendant fled. A foot pursuit ensued. The defendant was eventually located, but refused to cooperate to be taken into custody. Consequently the K-9 unit was called to assist the officers in apprehending the defendant. With regard to this matter, the defendant was adjudicated delinquent on the charge of disorderly conduct and defiant trespass, a summary offense. The disposition included house arrest for a period of thirty (30) days and a period of probation. As part of his probation, the defendant was ordered to attend eight (8) weekends of boot camp. The defendant never began this program because he absconded prior to its commencement.

Throughout the course of the Lehigh County Juvenile Probation Department’s involvement with the defendant, defendant’s disrespectful attitude and unsatisfactory academic performance were discussed. At all relevant times, the defendant was uncooperative and disrespectful with his mother. Indeed, while his mother made reasonable requests of the defendant in an attempt to provide him with a structured environment, the defendant was insolent and uncontrollable. Also, while the defendant is intelligent (which was demonstrated by his outstanding academic performance at Cornell Abraxus), he was failing most of his tenth grade classes at Dieruff High School. The defendant showed a lack of motivation, as was evidenced by his appalling grades, his eleven (11) absences and his twenty-five (25) tardies. The defendant’s school work was described as incomplete and below his ability. Moreover, the defendant was suspended from Dieruff High School for out of control behavior. The defendant is mature for his age, street savvy and is a self-proclaimed member of the “Handsome Boys.”

Without a doubt, the nature and circumstances of the within alleged offenses are extremely serious. Defendant was not simply in the wrong place at the wrong time, but rather was a willing and active participant in the crimes. The defendant was integral to the success of the criminal plan, as the defendant participated in the planning and carrying out of the robbery, kidnapping and unlawful restraint of the victim. The nature of the crimes themselves and the defendant’s role in the crimes demonstrated criminal sophistication. This was not a spur of the moment crime without clearly defined roles and parts. The defendant’s street intelligence was essential to achieving the desire goal — robbery and kidnapping for ransom. No factors weigh so heavily to this court as do the sophistication of the crimes committed and the defendant’s degree of culpability in the commission thereof. See Commonwealth v. Pennington, 751 A.2d 212, 219 (Pa. Super. 2000).

Furthermore, the within crimes are an escalation of the defendant’s prior criminal conduct. In the past, the defendant exhibited assaultive and defiant behavior. However, the within alleged crimes demonstrate a layer of planning and sophistication that illustrates that the defendant has ascended to the next level of criminal behavior.

Additionally, the defendant’s actions posed a grave risk to the victim and the community at large. It is undeniable that the victim and the victim’s family have been negatively affected by these terrible crimes. Also, the community was impacted by these heinous crimes. This type of criminal activity causes others in the community to be concerned for their safety and to fear that similar occurrences will transpire. The community would be best served by maintaining the defendant’s adult status.

Lehigh County Juvenile Probation officer Aaron Lichtfus opined that decertification to juvenile court is not appropriate in this situation and that the juvenile system is inadequate to supervise, treat or rehabilitate the defendant before the defendant turns twenty-one (21) years old. This court must agree. Defendant’s prior juvenile history, his probation violations, the sophistication of the crimes charged, his street-savvy behavior, and his anti-social personality are indicative of the defendant’s reduced amenability to treatment, supervision or rehabilitation prior to his attainment of age twenty-one (21). This court recognizes that juvenile court jurisdiction ends at the age of twenty-one (21) regardless of whether or not the defendant continues to pose a threat to society. Commonwealth v. Zoller, 498 A.2d 336, 440 (Pa. Super. 1985). A period of four (4) years is woefully inadequate to expect that the defendant would respond to treatment. The evidence presented at the decertification hearing revealed that the defendant does not have the ability to benefit from what the juvenile system as to offer. Within the adult system, a state correctional institution is available to the defendant that would suit his needs. Specifically, Pine Grove is a state correctional facility housing young adult offenders between the ages of fifteen (15) and twenty-one (21) years old.

This court finds that the defendant has not borne the heavy burden placed upon him to prove that transfer to the juvenile system would serve the public interest. In particular, decertification is not appropriate because often serious nature of the charges, the escalation in criminal behavior and the criminal sophistication exhibited. See Commonwealth v. Aziz, 724 A.2d 371, 379 (Pa. Super. 1999) (seriousness of allegations, failure to respond to previous treatment, significant pattern of violent and escalating criminal behavior justified in denying decertification). In short, the defendant’s amenability to treatment, supervision, or rehabilitation as a juvenile is suspect at best. Commonwealth v. Austin, 664 A.2d 597 (Pa. Super. 1995). Consequently, the defendant’s motion to transfer case to juvenile court is denied.

ORDER

And now, March 1, 2011, upon consideration of defendant’s motion to transfer case to juvenile court, and after hearing held on February 24, 2011, and for the reasons stated in the accompanying opinion, it is hereby ordered that the defendant’s motion to transfer case to juvenile court is denied.

      . 18 Pa. C.S.A. § 3701(a)(1)(h).

      . 18 Pa. C.S.A. § 2901(a)(1).

      . 18 Pa. C.S.A. § 3921(a); 18 Pa. C.S.A. § 903(a)(1).

      . 18 Pa. C.S.A. § 3925(a).

      . 18 Pa. C.S.A. § 2902(a)(2); 18 Pa. C.S.A. § 2902(a)(1).

      . 18 Pa. C.S.A. § 3701(a)(1)(H); 18 Pa. C.S.A. § 903(a)(1).

      . While a decertification court must consider all of the factors set forth in 42 Pa.C.S.A. § 6355, it need not address, in seriatim, the applicability and importance of each factor and fact in reaching its final determination. Jackson at 45, 722 A.2d at 1034.

      . Mr. Sanchez had met co-defendant Valdez in September of 2009, at the house on Brookdale Street. (N.T. 11/17/2010, pp. 16-17).

      . Co-defendant Valdez offered the victim thirty ($30.00) dollars for gas money. (N.T. 11/17/2010,24).

      . Mr. Sanchez knew defendant Dante Copeland from middle school. (N.T. 11/17/2010, pp. 21, 47).

      . The note said, “Mom, these people got me hostage. They want $3,000 in 12 hours, and if not, they’re going to kill me.” (N.T. 11/17/2010, P- 28)

      . The residence located at 322 W. Brookdale Street, Allentown was owned by a person named Joey. (N.T. 11/17/2010, p. 32).

      . Co-defendant Valdez took Mr. Sanchez’s car keys and gave them to defendant Dante Copeland so that he could drive two (2) unidentified girls home. (N.T. 11/17/2010, pp. 14, 35, 64)

      . It was later determined that the gun the defendant possessed was a BB gun.

      . Even though the defendant was successfully discharged from this program, the staff at Cornell Abraxus expressed numerous concerns with regards to the defendant: the defendant’s anti-social thinking, his lack of cooperation in groups, and his anger management issues.

      . When the defendant was in tenth grade in 2010, the highest grade that he achieved was a “D” in algebra, despite having an above average intelligence and no mental illness or defect.


author: WETTICK JR., J,

text:
    Dominion Products and services, Inc. v. Pittsburgh Water and Sewer Auth.

      Steven R. Baicker-McKee, for plaintiffs.

      MarkF. Nowak, Allen M. Lopus, and Danny P. Cerrone Jr., for defendant Pittsburgh Water and Sewer Authority.

      Bernard M. Schneider, for defendant Utility Line Security, LLC.
    March 31, 2011
   WETTICK JR., J,

Pittsburgh Water and Sewer Authority (“PWSA”) is an authority created pursuant to the municipality authorities act of 1945, as amended, 53 P.S. §301 et seq. PWSA provides water and sewer services to approximately 113,000 households within the city of Pittsburgh.

Pursuant to an amended agreement, effective January 1, 2010, between United Line Security, LLC (“ULS”) and PWSA (Complaint, Ex. 7), ULS agreed to make all necessary repairs to the water and sewer lines of every PWSA customer, and each year to provide services valued at up to $1 million to separate sanitary and storm sewer lines. In exchange for these services, PWSA agreed to add a $5.00 fee to the monthly bill of each PWSA customer and to forward this amount to ULS upon receipt of payment. The amended agreement provides that any PWSA customer may opt-out of the program, in which case the $5.00 fee is not collected and ULS is no longer obligated to repair the water and sewer lines of this customer.

Two of the plaintiffs — Dominion Products and Services, Inc. (“Dominion”) and The Manchester Group, LLC (“Manchester”) — repair broken water and sewer lines of property owners who chose to participate in their warranty programs, including PWSA customers located within the City of Pittsburgh. Dominion and Manchester contend that the opt-out line warranty program created through the amended agreement is not authorized under the Municipality Authorities Act and violates a City of Pittsburgh ordinance (code of ordinances §601.18) which prohibits negative option billing. These challenges to the line warranty program are the subject of this opinion and order of court.

Under Pennsylvania law, the property owner is responsible for maintaining the water and sewer lines on their properties. If the homeowner fails to maintain the lines, PWSA will arrange for the repairs and place liens on the property for the cost of the repairs.

According to the briefs of PWSA and ULS, frequently the repairs must be promptly made because of public health considerations. The average cost of a water line repair is between $1,500 and $3,000, and the average cost of a sewer line repair is approximately $4,000 (ULS SurReply Brief, Ex. 6 and Ex. 7).

In many instances, the property owners do not have the resources to make the repairs or to reimburse PWSA for the costs it incurred in arranging for the repairs. Also, the cost of the repairs may exceed the value of the property. Consequently, PWSA is not assured of ever being reimbursed for its expenses when it arranges for the repairs.

The opt-out line security program created through the amended agreement provides greater protection to the property owner and at less cost as compared to the warranty programs of Dominion and Manchester. This is so because the ability of ULS to serve most of the property owners within a compact geographic area (i.e., the City of Pittsburgh) reduces the costs of operating the warranty program. ULS has this ability to serve most homeowners in Pittsburgh because experience has shown that most people do not opt in to opt-in programs and do not opt out of opt-out programs.

This is borne out by the development of the existing opt-out line security program. In early 2009, P WS A determined it was in the interests of both PWSA and its customers for PWSA to provide a cost-effective line warranty program that would protect its customers from being faced with unanticipated and expensive costs of repairing their water and sewer lines — frequently, in an emergency situation in which the homeowners are not in a position to shop for the best deal. PWSA issued a request for proposals for an opt-in line warranty protection plan. In response to the request, it received two proposals: one from ULS and another from a third-party that has no involvement in this lawsuit.

Upon consideration of the proposals, pursuant to a board resolution, on July 31, 2009, PWSA entered into an agreement with ULS that made available to PWSA’s customers an opt-in warranty protection plan for their water and sewer lines. The price for providing protection for water and sewer service lines was $8.50 per month with a rebate to PWSA of $14.00 per customer annually. PWSA would bill and collect the monthly payments from its customers who enrolled in the program. Complaint, Ex. 5.

As I previously stated, the goal of the program was to enroll a significant percent of PWSA’s customers in the program in order that most customers would have their repairs made by ULS, and PWSA would almost be out of the repair business. The program was a failure. Only approximately 3,000 PWSA customers enrolled in the program.

Through a December 11, 2009 resolution, the PWSA board voted to amend the July 31, 2009 agreement into an opt-out warranty program and to lower the monthly fees based on what would now be an opt-out program. The sixth whereas clause of the resolution provided that an opt-out program would benefit PWSA’s customers by reducing the cost of warranty services and the seventh whereas provision stated that the opt-out program would benefit PWSA by promoting the prompt repair of broken or damaged water service lines and sewer laterals, thereby reducing the incidence of exoneration claims for water lost due to breaks and the incidence of property damage and other claims resulting from subsidence due to broken or damaged sewer laterals. Complaint, Ex. 6.

Pursuant to this resolution, PWSA and ULS entered into the December 30, 2009 amended opt-out agreement which reduced the monthly fee to $5.00 (while eliminating the rebate to PWSA) and included a new requirement that ULS would provide up to $1 million annually of services in connection with separating sanitary and storm sewer lines.

In summary, it is reasonable for me at this stage of the proceedings to conclude that (1) customers of PWSA who want warranty protection will receive more protection at less cost through PWSA’s opt-out program than will be provided through any sign-up warranty programs of business enterprises in which PWSA has no involvement; (2) a substantial majority of PWSA’s customers are, and will continue to be, participants in PWSA’s water and sewer line repair protection program, thereby ensuring that for most customers repairs will be promptly completed; and (3) for most customers, PWSA will no longer need to arrange for repairs to water and sewer lines.

DISCUSSION OF THE LAW

The relief which plaintiffs seek in this lawsuit includes the entry of a court order declaring that the amended agreement between PWSA and ULS is invalid and unenforceable and the issuance of an injunction enjoining PWSA from invoicing any of PWSA customers for the line warranty program unless the customer has opted into this program.

A.

Plaintiffs contend that the inclusion of a $5.00 fee for the line warranty program on the statement of customers who never opted into this program is the use of negative option billing prohibited by Pittsburgh code of ordinances §601.18. This provision reads as follows:

§ 601.18. Prohibited billing practice.
(a) Definitions. As used in this section, certain terms are defined as follows:
(1) Negative option billing. A business practice whereby a provider of goods or services provides such goods or services without any prior agreement of or a request from the recipient and then bills or otherwise attempts to collect payment from the recipient for such goods or services. Negative option billing shall not include isolated instances where a provider mistakenly provides goods or services to a recipient and shall not include any tax or fee charged by a governmental or quasi-governmental entity.
(2) Goods. Any tangible or intangible things or items of value.
(3) Service. Any labor, activity or action of value.
(b) Negative option billing prohibited. The use of negative option billing by any individual or any business entity, organization or association is prohibited. Any person that receives goods or services as a result of a billing practice that has been judicially determined to be negative option billing has no obligation to pay for or return such goods or services. Any person who suffers a loss as a result of a negative option billing practice may bring a private action to recover actual and other damages.
(c) Exceptions. This section shall not apply to any goods or services provided in an emergency situation or in a situation that the provider of the goods or services reasonably believed to be an emergency.
(d) Violation and penalty. Any individual, or any business entity, organization or association violating this section shall be fined up to five hundred dollars ($500.00) for each violation, plus costs. Every day that a negative option billing plan is in effect shall constitute a separate violation.
(Ord. 22-1991, eff. 6-28-91)

PWSA and ULS apparently agree that ULS cannot charge any individuals or businesses for services without a prior agreement or request from the individual or business. However, both PWSA and ULS contend that ULS is not billing any individual or business. To the contrary, PWSA is charging and collecting a $5.00 fee pursuant to a program created and operated by PWSA under which ULS provides to PWSA services worth up to $1 million each year for separating sanitary and storm sewer lines and under which ULS will make repairs to all broken water and sewer lines of PWSA’s customers who have not opted out, thereby relieving PWSA of any responsibility for making the repairs.

I find no merit to plaintiffs’ contention that the opt-out line warranty program should be characterized as a ULS program under which PWSA serves as a billing agent for ULS. This program was created and is operated by PWSA to further the separate interests of PWSA, namely, to assure the prompt repair of water and sewer lines of its customers, to drastically reduce the number of situations in which PWSA is left arranging for the repairs, and to obtain services worth up to $1 million each year for separating sanitary and storm sewer lines.

I agree with defendants that the billing practices of a municipal authority are not covered by §601.18. Under §601.18(b), only the following may not use negative option billing: “any individual or any business entity, organization or association.” These are not categories that are used to refer to governmental entities. Furthermore, it is unlikely that the persons enacting this legislation sought to control the activities of other governmental bodies in an ordinance that did not explicitly refer to governmental bodies.

Also, the reference in §601.18 is to any “business entity” rather than to any “business or governmental” entity. The use of the term “business” was apparently meant to exclude entities that are not “business” entities.

Finally, the exclusion in §601.18(a) of “any tax or fee charged by a governmental or quasi-governmental entity” is consistent with my interpretation of §601.18(b).

B.

As I previously stated, I agree with PWSA and ULS that the opt-out line warranty program is a program created and operated by PWSA. Since PWSA is governed by the Municipality Authorities Act, 53 Pa.C.S. §5601 et seq., the legality of the PWSA opt-out line warranty program is governed by this legislation.

Plaintiffs correctly state that a municipal authority may exercise only those powers granted by its enabling legislation. Section 5607(d) describes the powers that an authority may exercise. I agree with defendants that the creation and operation of the line warranty program constitutes a valid exercise of powers which §5607(d) has conferred upon an authority. Under §5607(d)(5), an authority is permitted to “construct, improve, maintain, repair and operate projects” and under §5607(d)(17) an authority is permitted to “do all acts and things necessary or convenient for the promotion of its business and the general welfare of the authority.” See Glennon’s Milk Services, Inc. v. West Chester Area Municipal Authority, 538 A.2d 138, 141 (Pa. Cmwlth. 1988), where the court, in ruling that the municipal water authority did not abuse its discretion in implementing rules and regulations requiring customers to keep their service pipes on and off their property in good working order at their own expense, stated: “[T]he authority clearly has the exclusive power to determine services and improvements required to provide adequate, safe and reasonable service.”

The Municipality Authorities Act is structured in such a fashion that §5307(d) provides that every authority may exercise all powers necessary or convenient for the carrying out of the purposes set forth in this section, including the powers specifically described in subsections §5607(d) (1) through §5607(d)(31). However, the exercise of these powers is limited by the limitation provisions of §5607(b). In other words, the power set forth in §5607(d) cannot be exercised where there is an express provision within §5607(b) which bars otherwise authorized conduct.

The relevant provisions of §5607(b) read as follows:

(2) The purpose and intent of this chapter being to benefit the people of the Commonwealth by, among other things, increasing their commerce, health, safety and prosperity and not to unnecessarily burden or interfere with existing business by the establishment of competitive enterprises; none of the powers granted by this chapter shall be exercised in the construction, financing, improvement, maintenance, extension or operation of any project or projects or providing financing for insurance reserves which in whole or in part shall duplicate or compete with existing enterprises serving substantially the same purposes.

The first provision of §5607(b) prohibits an authority from unnecessarily burdening or interfering with existing businesses and describes the authority’s establishment of a competitive enterprise as an unnecessary burden or interference with an existing business. The second provision does not permit a municipality to exercise powers in the operation of any project which in whole or in part duplicates or competes with existing enterprises serving the same purposes. Both provisions apply.

Prior to the creation of the opt-out line warranty program, the water and sewer lines of PWSA customers were repaired by private companies that repair and replace broken water and sewer lines. Under the heading plumbing in the Verizon Yellow Pages for Greater Pittsburgh (March 2009-2010) are listed more than twenty companies describing water and sewer repairs as services that they provide. The opt-out warranty program comes within the first provision because it is a competitive enterprise created by PWSA that burdens and interferes with existing business. The opt-out line warranty program which PWSA has created also comes within the second provision because it competes with existing enterprises and provides substantially the same services.

The opt-out line warranty program also competes with the existing warranty programs offered by Dominion and Manchester. In fact, no PWSA customer is likely to continue in (or opt into) plaintiffs’ warranty programs because they offer less protection at a higher price.

Assume that PWSA sought to increase rates by $5.00 per month; to earmark these funds for the repair of water and sewer lines; and to create a division of PWSA that repairs water and sewer lines at no cost to its customers. Under §5607(b)(2), it could not do so because it would be creating an enterprise that competes with the more than two dozen plumbing companies serving the same purpose — the repair of water and sewer lines — and with existing businesses that also offer warranty protection.

I reach the same result if PWSA used the earmarked funds to hire a third party to provide repairs at no cost to the customer. The purpose of such a program is to replace the status quo, in which water and sewer lines are repaired by plumbers chosen by the homeowner, with a repair program in which PWSA selects the entity that will provide the repairs.

PWSA and ULS contend that §5607(b)(2) does not apply because ULS is the competitive enterprise. It was not created by PWSA. I disagree. Enterprise — as defined in Black’s Law Dictionary (9th Ed. 2009) — is “an organization or venture.” In this case, the venture is a program established and administered by PWSA (1) to ensure that all sewer and water repairs are promptly and competently made for property owners who do not opt-out and (2) to minimize the need for PWSA to arrange for such repairs. This enterprise, established by PWSA, interferes with existing warranty programs and competes with existing plumbing companies that make water and sewer line repairs.

Under 1 Pa.C.S. § 1921 (b), when “the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” At the same time, under 1 Pa.C.S. §1922, the general assembly does not intend for a statute to be construed to achieve a result which the legislature could not have intended. In the present case, the words are clear and this legislation achieves a result that the general assembly could have intended, namely “keeping government small” by permitting government to become involved only where necessary services are not being furnished by private enterprise.

I recognize that it is likely that no business enterprise can provide the benefits to PWSA and to its customers that are provided by the PWSA opt-out line warranty program. However, the apparent purpose of the first provision and second provision of §5607(b)(2) is to protect existing business enterprises from losing business to an enterprise created by a municipal authority. Or, in other words, the apparent purpose is to prevent a municipal authority from competing with existing business enterprises by providing a better service or a better product.

In summary, while the PWSA opt-out line warranty program appears to be a good program for PWSA customers, it is not a program that is permitted under the Municipality Authorities Act. For these reasons, I deny defendants’ request that I dismiss the case on the ground that the opt-out line warranty program is permitted under the Municipality Authorities Act.

ORDER OF COURT

And now, March 14,2011, it is ordered that defendants’ preliminary objection seeking dismissal of plaintiffs’ claims for injunctive and declaratory relief based on Pittsburgh ordinance §601.18 is sustained, and defendants’ preliminary objection seeking dismissal of plaintiffs’ claims for injunctive and declaratoiy relief based on section 5607(b) of the Municipality authorities Act is overruled.

Status conference will be held on March 31, 2011 at 10:00 a.m.

      . The Municipality Authorities Act is now found at 53 Pa.C.S. §5601 et seq.

      . At the last status conference, it was agreed that I would initially address only the preliminary objections raising these challenges to the amended agreement.

      . My rulings in this opinion shall also apply to the two class actions brought against PWSA and ULS filed at GD10-002304 (Steinberg v. PWSA) and GD10-002305 (Farber v. PWSA).

      . The only other interpretation that the words would permit is that an authority may establish competitive enterprises that are not very competitive and, therefore, do not have much impact on existing businesses. However, this is not a sensible construction of §5607(b) (2) because there is no legislative purpose that would be furthered through this construction of the legislation. Furthermore, even under this construction of §5607(b)(2), the program that the authority has established completely interferes with competitive enterprises.

      . These companies are still repairing and replacing water and sewer lines outside the city of Pittsburgh.

      . If ULS were seen as independent of PWSA, then as a business it could not use an opt-out plan under the Pittsburgh ordinance prohibiting . negative option billing.

      . Section 5607(b)(2)(i)-(vi) lists situations in which its limitations do not apply. See, e.g., (b)(2)(ii) which allows powers to be exercised for industrial development projects if the authority does not develop industrial projects which will compete with existing industries. None permit the opt-out line warranty program.


author: LASH, J,

text:
    Ollar v. Berks County Bd. of Assessment Appeals

      Henry M. Koch Jr., for appellant.

      Gregory A. Shantz, for appellee.

      March 23, 2011
   LASH, J,

The appellant, Isadore Ollar (hereinafter “landowner”), has appealed the decision of the Berks County Board of Assessment Appeals (hereinafter “board”) directing a rollback from the preferential use assessment to full market value assessment of one (1) acre of real estate owned by landowner, pursuant to the Pennsylvania Farmland and Forest Land Assessment Act of 1974 (Act 319), commonly known as the Clean and GreenAct, 72P.S. § 5490.1, etseq., (hereinafter “Clean and Green Act”). In removing the one (1) acre from Clean and Green preferential status, the board found that landowner was engaged in a rural enterprise on the premises. A non-jury trial was held on March 17, 2011.

This court enters the following findings of fact:

I.FINDINGS OF FACT

1.Theappellant,Isadore011ar(hereinafter“landowner”), is an adult individual with a mailing address of P.O. Box 125, Miller Lane, Oley, Berks County, Pennsylvania 19547-0125.

2. The appellee, Berks County Board of Assessment Appeals (hereinafter “board”), is an agency of the County of Berks, with a principal place of business located in the Berks County Services Center, Third Floor, 633 Court Street, Reading, Berks County, Pennsylvania 19601.

3. Landowner is the owner of real estate consisting of 13.16 acres of farmland located at 32 Miller Lane, Alsace Township, Oley School District, Berks County, Pennsylvania (hereinafter “subject property”). The parcel number for the subject property is 22-5328-02-78-1091.

4. The parcel is improved with a mobile home and other outbuildings, including a lean-to style outbuilding to house fanning equipment, bams, and a grain drying facility.

5. The subject property was accepted and enrolled into the Berks County Clean and Green program in 1994 and has remained in that program ever since.

6. Landowner utilizes the subject property for farming and as the base of his farming operations. In addition to the subject property, landowner leases and farms approximately 1,200 acres, 600 acres in Berks County and 600 acres in Northampton County.

7. Landowner owns several large farming equipment vehicles which, when not in use, are stored on the subject property. Landowner also owns several trucks used for transportation, including tractor trailers, flatbeds, and lowboys. The trucks were purchased and are used in landowner’s farming business to, among other things, transport fertilizer, seed, and other materials to the farming sites, deliver harvesting product to the grain bins on the subject property or elsewhere, and transport large farming equipment from one farming site to another.

8. Landowner’s farming operations consists of the growing of soybeans, com, and wheat.

9. On occasion, which landowner estimates to be approximately fifteen (15) times a year, landowner assists neighboring farm owners, with whom he is acquainted, in their transportation needs. He is compensated for his out-of-pocket expenses, plus seventy-five dollars ($75.00) for his time.

10. Landowner’s intentions in purchasing the trucks were for the aforesaid use in his farming business. He did not purchase them to engage in a trucking business. He does not solicit, nor accept trucking business from the general public, nor advertise.

11. On or about June 8, 2010, the Berks County Assessment Office sent a notice to landowner setting forth that they found a “rural enterprise” on the subject property. As a result of this finding, the assessment office removed one (1) acre of land from the Clean and Green program, which thereby increased the assessment on the subject property by nineteen hundred dollars ($1,900.00) per year. Additionally, a rollback penalty was assessed in the amount of four hundred forty-five dollars and ninety-four cents ($445.94).

12. On or about June 30, 2010, the Berks County Assessment Office sent a “Corrected Change Notice” to landowner, regarding a July 2010 split assessment, setting forth that the Clean and Green assessment was now one hundred seventy-two thousand three hundred dollars ($172,300.00), and the full market value assessment was two hundred six thousand six hundred dollars ($206,600.00).

13. On or about July 16,2010, landowner filed an appeal of the assessment office notice to the board, contesting the removal of one (1) acre from clean and green.

14. On August 5, 2010, landowner appealed the July 2010 split assessment to the board.

15. The board held a hearing on September 20, 2010. By notice dated October 5, 2010, the board notified landowner that the appeals had been denied.

16. On November 3, 2010, landowner filed the within appeal to common pleas court.

17. On February 14, 2011, this court ordered that the appeal from the board’s decision removing the one acre. from the Clean and Green program shall be tried separately .from the split assessment.

II. DISCUSSION

The question before this court is whether landowner’s use of his trucks for purposes other than his farming operation is an engagement in rural enterprises.

The Clean and Green Act is designed to preserve the natural resource of agricultural and forestry land. This is accomplished by providing incentives through a reduction of the property tax, motivating the landowner to ignore whatever development value the land may have, and preserve the land in its current state. Feick v. Berks County Board of Assessment Appeals, 720 A.2d 504, 506-507 (Pa. Cmwlth. 1998).

By enrolling his tract of land into the Clean and Green program, a landowner receives the preferential assessment so long as the tract meets the minimum requirements for eligibility which, among other things, requires that the tract of land be used for agricultural use, agricultural reserve, or forest reserve purposes. However, if the landowner obtains preferential assessment but then uses the land for a purpose not eligible under the Clean and Green Act, the Clean and Green Act requires that the land be removed from the program and the entire tract be subject to rollback taxes.

A rural enterprise is not an eligible use under the Clean and Green Act and, therefore, its presence on enrolled land would normally subject the entire land to removal and rollback taxes. However, the general assembly determined that some rural enterprises are sufficiently small in scope, such that their presence would not impact or adversely affect the preservation of the land, and therefore, the rollback penalty should be limited to the actual acreage affected. Accordingly, in § 5490.8(d) of the act, the general assembly provided that a landowner may apply a maximum of two (2) acres of a tract of land subject to preferential assessment toward a “rural enterprise incidental to the operational unit without subjecting the entire tract to roll-back taxes,” provided that:

(ii) An assessment of the inventory of the goods involved verifies that it is owned by the landowner or his beneficiaries.
(iii) The rural enterprise does not permanently render the land incapable of producing an agricultural commodity.
(2) Roll-back taxes shall be imposed upon that portion of the tract where the commercial activity takes place and the fair market value of that tract shall be adjusted accordingly.

In the within matter, the board determined that landowner was engaged in a rural enterprise, namely, a trucking operation. The board presented evidence, including the presence of “Ollar Trucking” listings on department of transportation documentation and painted on landowner’s tractors, a personal listing in the phonebook, and a “penguin” logo on a trailer advertising a separate business. Most important was landowner’s own admission that goods were being transported for third parties. The board did determine that the trucking operation was limited in scope to one (1) acre and, therefore, limited the penalty to removal of the one (1) acre, plus the rollback taxes, for that acre.

Landowner testified that he does not and has not conducted a trucking business and has no interest in doing so. He owns several trucks, which he purchased for the use of his farming operation. While, as stated, he has used the trucks to transport property of his neighbors, he does so simply to provide assistance to them and is not engaged in making a profit. For his efforts, landowner receives his out-of-pocket expenses and seventy-five dollars ($75.00) per trip, nothing more. He has never solicited trucking business, nor advertised his availability to provide trucking services.

Landowner disputes the board’s categorization of the evidence. He agrees that his name does appear in the phonebook, however, this is his personal number. In fact, until this matter arose, he had believed that his phone number was unlisted. The penguin logo, appearing on one of his trailers, was present on the trailer when he purchased it and was never removed. He has no relationship with the company owning the logo. He has the name “Ollar Trucking” painted on his tractors, but this simply denotes that he does trucking within his farming operation, and was not meant to hold himself out as conducting a trucking business.

The Clean and Green Act does not provide a definition for “rural enterprise.” The dictionary definition of “enterprise” is “a unit of economic organization or activity; esp: a business organization.” Enterprise can generally be described as an entity organized and existing to fulfill a specific economic purpose, usually a business purpose.

We find that landowner is not in the trucking business. Landowner’s activities performed for his neighbors do not constitute engaging in a rural enterprise, rather it constitutes “lending a helping hand.” Simply put, landowner is doing nothing more than performing a favor for his neighbors. This is evidenced by landowner’s testimony, which this court accepts as true, his refusal to accept trucking business from the general public, and the de minimis compensation he receives for his trips, which does not begin to address his time investment, nor the wear and tear on his vehicles.

We enter the following order:

ORDER

And now, March 23,2011, after a de novo trial held, this court sustains the appeal of the appellant, Isadore Ollar. The decision of the Berks County Board of Assessment Appeals is reversed. The entire 13.1 acres, previously enrolled in the Berks County Clean and Green program, shall remain enrolled, and no rollback taxes shall be assessed.

      . 72 P.S. §. 5490.5(a).

      . 72 P.S. § 5490.8(d).

      . Webster’s Ninth New Collegian Dictionary (1984) at p. 415.


author: PICCIONE, J,

text:
    Schick v. Huntington Bancshares, Inc.

      John J. DeCaro Jr, for plaintiffs.

      Richard J. Parks, for defendant.
    April 1, 2011
   PICCIONE, J,

Before this court for disposition are the defendant’s preliminary objections to plaintiffs’ second amended complaint. The current action arose out of a commercial guaranty executed on April 24, 2002 by plaintiff Carmen Shick in favor of Huntington Bancshares, Inc., formerly Sky Bank (hereinafter, “defendant”). Mr. Shick guaranteed the payment of an outstanding balance owed to defendant by Ambrosia Coal & Construction Company (hereinafter, “Ambrosia”). On August 30, 2007, defendant filed a complaint to confess judgment against Mr. Shick with this court at docket no. 11298 of 2007, C.A. Defendant thereafter sent a forbearance agreement to Mr. Shick and granted Mr. Shick several extensions of time within which to seek relief from the confessed judgment. On November 1,2007, Ambrosia made a payment of $190,000.00 on its loan account. On May 13, 2008, defendant withdrew $24,264.78 from the joint bank account that Mr. Shick and Amy Shick, his wife (hereinafter, “plaintiffs”), had with defendant. The funds were then applied to Ambrosia’s loan account as a set-off against the amount owed to defendant.

On June 30,2009, plaintiffs filed a complaint, alleging that defendant wrongfully withdrew and set-off plaintiffs’ joint deposit account. On September 23, 2009, defendant filed preliminary objections to plaintiffs’ complaint. After hearing oral argument, the court overruled defendant’s preliminary objection alleging legal insufficiency of plaintiffs’ claims of wrongful set-off, estoppel, conversion, and abuse of process. In so ruling, the court concluded that it could not consider the deposit agreement attached to defendant’s preliminary objections at this stage of the proceedings because nothing in plaintiffs’ complaint indicated that the terms of the attached deposit agreement applied to the joint account from which defendant withdrew $24,264.78. Specifically, the court stated:

[The deposit agreement attached to defendant’s preliminary objections] pertains to an account with an account number ending in 6888. Plaintiffs’ complaint, however, states that defendant withdrew the $24,264.78 from plaintiffs’ joint account with defendant that had an account number ending in 6752. Plaintiffs argue that defendant failed to show that the account referenced in plaintiffs’ complaint is the same account cited by defendants. The court agrees that defendant failed to demonstrate that the accounts ending in account numbers 6888 and 6752 are the same account. It cannot be determined by a review of the pleadings whether the language in the deposit agreement granting defendant a right to set-off applies to the account from which the $24,264.78 was withdrawn. For purposes of defendant’s demurrer, the language in the deposit agreement does not apply to plaintiffs’ joint account ending in account number 6752. Plaintiffs could have executed a different deposit agreement where defendant was not granted a right to set-off amounts contained within the account. Therefore, it cannot be said that no recovery is possible on the facts averred by plaintiffs. Shick v. Huntington Bancshares, Inc., 11060 of 2009, C.A. (C.P. Lawrence, February 23, 2010).

Defendant’s preliminary objections alleging legal insufficiency of plaintiff’s claim for punitive damages and alleging failure to conform to law or rule of court were sustained. Plaintiffs were granted 30 days to amend their complaint.

On March 24, 2010, plaintiffs filed an amended complaint to which defendant filed preliminary objections. Plaintiffs subsequently filed a second amended complaint on May 25,2010, and defendant filed the instant preliminary objections to the second amended complaint on July 6,2010. The court heard oral argument on defendant’s preliminary objections on October 25, 2010. Defendant argues that plaintiffs’ second amended complaint fails to state a cause of action upon which relief can be granted.

Rule 1028 of the Pennsylvania Rules of Civil Procedure permits parties to file preliminary objections based on the legal insufficiency of a pleading (demurrer). Pa.R.C.P. 1028(a)(4). It is well settled that a preliminary objection in the nature of a demurrer is properly granted where the contested pleading is legally insufficient. Strausser v. PRAMCO III, 944 A.2d 761, 764-65 (Pa. Super. 2008) (citing Excavation Technologies, Inc. v. Columbia Gas Co. of Pennsylvania, 936 A.2d 111, 113 (Pa. Super. 2007)). A demurrer must be resolved based solely on the pleadings, no testimony or evidence outside of the complaint may be considered to dispose of the legal issue presented. Cooper v. Frankford Health Care System, Inc., 960 A.2d 134, 143 (Pa. Super. 2008) (citing Cardenas v. Schober, 783 A.2d 317, 321 (Pa. Super. 2001)). “All material facts set forth in the pleading and all inferences reasonably deducible therefrom must be admitted as tue." Hess v. Fox Rothschild, LLP, 925 A.2d 798, 805 (Pa. Super. 2007). Conclusions of law or unjustified inferences contained in the complaint, however, are not admitted. Lerner v. Lerner, 954 A.2d 1229, 1234 (Pa. Super. 2008). Fact-based defenses are irrelevant when ruling on a preliminary objection in the nature of a demurrer. Werner v. Plater-Zyberk, 799 A.2d 776, 783 (Pa. Super. 2002) (citing Orner v. Mallick, 527 A.2d 521, 523 (Pa. 1987)). “The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible.” Price v. Brown, 545 Pa. 216, 221, 680 A.2d 1149, 1151 (Pa. 1996). “Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.” Wawa Inc. v. Alexander J. Litwornia & Associates, 817 A.2d 543, 544 (Pa. Super. 2003).

“A ‘speaking demurrer’ is defined as ‘one which, in order to sustain itself, requires the aid of a fact not appearing on the face of the pleading objected, or in other words, which alleges or assumes the existence of a fact not already pleaded, and which constitutes the ground of objection and is condemned both by the common law and the code system of pleading.’” Regal Indus. Corp. v. Crum and Forster, Inc., 890 A.2d 395, 398 (Pa. Super. 2005) (citing Black’s Law Dictionary 299 (6th ed. 1991). The court is not permitted to consider a speaking demurrer in rendering its decision on preliminary objections. Id. “[A] limited exception to the rule against speaking demurrers exists for documents filed in support of a demurrer where a plaintiff has averred the existence of certain written documents and premised his cause of action upon those documents.” Barndt v. Pennsylvania Dep’t of Corr., 902 A.2d 589, 592, n.2 (Pa. Cmwlth. 2006) (emphasis added).

In count I of the second amended complaint, plaintiffs assert a claim of wrongful set-off. They argue that defendant’s withdrawal of $24,264.78 from plaintiffs’ joint bank account was improper because actions taken and assertions made by defendant led plaintiffs to believe that defendant did not intend to exercise any right to set-off. Furthermore, plaintiffs argue that the set-off was improper because plaintiff Amy Shiclc did not owe any obligation to defendant.

In support of its preliminary objection to count I, defendant cites language from the deposit agreement for plaintiffs’joint account ending in account number 6888. Defendantassertsthattheagreementestablishes defendant’s right to set-off funds in the account against any other debt owed by plaintiffs. As stated above and in the February 23, 2010 opinion, the court cannot consider this deposit agreement at this stage of the proceedings because there is no indication in plaintiffs’ second amended complaint that the terms of the deposit agreement applied to the joint account from which defendant withdrew $24,264.78. Any attempt by defendant to assert that the deposit agreement applied to that joint account represents an attempt to assert a fact-based defense that is not properly before the court at this time.

Defendant also supports its preliminary objection to count I by citing to the following portion of this court’s February 23, 2010 opinion:

Absent an oral or written agreement to the contrary, plaintiffs have no cause to dispute defendant’s exercise of its set-off rights. Therefore, plaintiffs’ claim of wrongful set-off must be based on an agreement. Plaintiffs must allege whether one of their many agreements with defendant prohibited defendant from exercising its set-off rights. If such an agreement exists, plaintiffs must state specifically whether it is oral or written and, if written, attach a copy of the writing in accordance with Pa.R.C.P. 1019. Shick v. Huntington Bancshares, Inc., 11060 of 2009, C.A. (C.P. Lawrence, February 23, 2010).

Defendant argues that plaintiffs have failed to allege or attach any agreement demonstrating an understanding between the parties that defendant would not set-off funds in the joint account against another debt owed by plaintiffs.

Attached as exhibit C to plaintiffs’ second amended complaint is the proposed forbearance agreement sent by defendant’s counsel to plaintiff’s counsel. Exhibits El through E3 are copies of e-mail exchanges between defendant’s counsel and plaintiffs’ counsel which indicate that several extensions of time within which to seek relief from the confessed judgment were granted by defendant. Plaintiffs also allege in the complaint that they were negotiating payment terms with defendant prior to the set-off. As plaintiffs’ claims are based in part on the theory that defendant’s conduct limited its right to set-off funds, the attachment of these documents and the allegations of negotiations and agreements between the parties satisfies the court’s order.

The remaining question with respect to count I is whether plaintiffs have alleged sufficient facts to state a claim for wrongful set-off or whether count I is legally insufficient. As stated in the court’s February 23, 2010 opinion, “[i]t is generally established that a bank has a general lien upon or right of set off against all moneys or funds in its possession belonging to a depositor to secure the payment of the depositor’s indebtedness to it.” Royal Bank of Pennsylvania v. Selig, 644 A.2d 741, 744 (Pa. Super. 1994). Abank’s right of setoff arises under common law and is subject to the requirements of mutuality of obligation between the bank and the depositor, maturity of the debt, deposit in a general account, and depositor ownership. Pioneer Commercial Funding Corp. v. American Financial Mortg. Corp., 579 Pa. 275, 284, 855 A.2d 818, 824, n.11 (Pa. 2004).

A bank cannot knowingly accept a deposit for a particular purpose and then act to defeat the purpose for which that deposit was made. A garnishee-bank, therefore, cannot exercise its right to set-off where it holds money or property belonging to a third party, or where the depositor has informed the bank that the contents of an account have been designated to fulfill a specific purpose. Additionally, where the bank maintains an account in which its right to detain the contents is subject to control, or where an account is controlled by an agreement through which the parties have demonstrated that a right to set-off had not been intended, the account is considered “special” and no right to set-off exists. Where a “special” account exists, the bank is generally acting as a bailee or trustee. When an account has some characteristics consistent with a “special” as well as a “general” account, it is most important to consider the parties’ intent. If the parties have indicated that the right to set-off is preserved, the account is not considered “special.” Selig, 644 A.2d at 745 (citations omitted).

A review of plaintiffs’ second amended complaint reveals that plaintiffs have pled sufficient facts to support a claim for wrongful set-off. According to the complaint, defendant set-off $24,264.78 against the amount owed by plaintiff Carmen Shiclc and Ambrosia. Although defendant possesses a general common law right of set-off, several allegations made by plaintiffs indicate that the set-off was improper. For example, the complaint states that defendant set-off funds against plaintiffs’joint account despite plaintiff Amy Shiclc not owing any debt to defendant. Furthermore, the forbearance agreement, time extensions, and negotiations tend to show that the parties did not intend to preserve an unfettered right to set-off funds against plaintiff’s joint account. As a result, the court concludes that count I is legally sufficient to state a claim for wrongful set-off at this stage of the proceedings, and defendant’s preliminary objection to count I is overruled.

In count II of the second amended complaint, plaintiffs assert a claim of estoppel. They argue that, by granting plaintiffs a general extension, accepting payment on the loan account, failing to send any notice regarding amounts due and owing for a period of six months, and acknowledging to third parties the availability of funds in plaintiffs’ account, defendant is equitably estopped from asserting any set-off rights it may have against plaintiffs. Defendant argues that plaintiffs’ complaint is legally insufficient to state a claim for estoppel.

It appears from plaintiffs’ second amended complaint and their brief that plaintiffs are asserting a claim of equitable estoppel, not promissory estoppel. Equitable estoppel is a doctrine sounding in equity that prevents one from doing an act differently than the manner in which another was induced by word or deed to expect. Prime Medical Associates v. Valley Forge Ins. Co., 970 A.2d 1149, 1157 (Pa. Super. 2009). “It ‘arises when one by his acts, representations, or admissions, or by his silence when he ought to speak out, intentionally or through culpable negligence induces another to believe certain facts to exist and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts.’” Liberty Property Trust v. Day-Timers, Inc., 815 A.2d 1045, 1050 (Pa. Super. 2003) (citing In re Estate of Tallarico, 425 Pa. 280, 288, 228 A. 2d 736, 741 (Pa. 1967)). Equitable estoppel is “wholly a defensive doctrine,” and “does not create a cause of action at law.” Peluso v. Kistner, 970 A.2d 530, 533 (Pa. Cmwlth. 2009); Department of Public Welfare v. School District of Philadelphia, 410 A.2d 1311, 1314 (Pa. Cmwlth. 1980). Because equitable estoppel cannot be maintained as an independent cause of action, count II must be stricken from plaintiffs’ second amended complaint. Going forward, plaintiffs are not precluded from asserting the facts and arguing the theory that supports their claim of equitable estoppel; however, the facts asserted in count II do not support an independent cause of action. Therefore, defendant’s preliminary objection to count II is sustained.

Similarly, plaintiffs’ claim of waiver in count III of the amended complaint is legally insufficient to state a cause of action. Waiver is the voluntary and intentional abandonment or relinquishment of a known right. Prime Medical Associates, 970 A.2d at 1157. It is also a defensive doctrine which does not create an independent cause of action. Id. As a result, plaintiffs’ claim of waiver is stricken, and defendant’s preliminary objection to count Ill is sustained.

In count IV of the second amended complaint, plaintiffs’ assert a claim of conversion. “Conversion is the deprivation of another’s right of property in, or use or possession of, a chattel, without the owner’s consent and without lawful justification.” Francis J. Bernhardt, III, P.C. v. Needleman, 705 A.2d 875, 878 (Pa. Super. 1998) (citing Shonberger v. Oswell, 530 A.2d 112, 114 (Pa. Super. 1987)). Plaintiffs assert in their complaint that defendant unlawfully withdrew funds from plaintiffs ’ account without plaintiff’s consent and, in doing so, deprived plaintiffs of the use of their money deposited into their joint account. At this stage of the proceedings, there is no indication that defendant was permitted to withdraw the funds from plaintiffs’ joint account after plaintiffs and defendant allegedly reached an understanding that defendant would refrain from withdrawing funds from the account. There is also no indication that plaintiffs consented to the set-off. Therefore, plaintiffs’ have sufficiently stated a claim for conversion, and defendant’s preliminary objection to count IV is overruled.

Plaintiffs allege an abuse of process in count V of their second amended complaint. Abuse of process is the use of legal process against another primarily to accomplish a purpose for which it is not designed. Cruz v. Princeton Ins. Co., 972 A.2d 14, 15 n. 1 (Pa. Super. 2009). It “is, in essence, the use of the legal process as a tactical weapon to coerce a desired result that is not the legitimate object of the process.” Id. Whether the process was properly issued or initiated for a proper purpose is immaterial. Lerner v. Lerner, 954 A.2d 1229, 1238 (Pa. Super. 2008). “The subsequent misuse of the process, though properly obtained, constitutes the misconduct for which the liability is imposed.” Id. at 1239.

Plaintiffs allege that defendant’s set-off against their joint account constitutes execution by defendant upon its judgment entered by confession against plaintiff Carmen Shick. They assert that defendant’s failure to provide prior notice of the set-off to plaintiffs and the failure to rescind the general time extension constituted an abuse of process. Furthermore, they claim that the set-off was improper as applied to plaintiff Amy Shick, as the joint account was exempt from execution by defendant. Based on the facts alleged, the court concludes that plaintiffs sufficiently stated a claim for abuse of process. Therefore, defendant’s preliminary objection to count V is overruled.

In count VI of the second amended complaint, plaintiffs assert a claim for punitive damages. “Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.” Feld v. Merriam, 506 Pa. 383, 395, 485 A.2d 742, 747 (Pa. 1984). Nevertheless, punitive damages are a form of relief, not a separate cause of action. Robbins v. Cumberland County Children and Youth Services, 802 A.2d 1239, 1253 (Pa. Cmwlth. 2002). It is merely incidental to an underlying cause of action, which the jury may consider in determining that cause. Kirkbride v. Libson Contractors, Inc., 521 Pa. 97, 102, 555 A.2d 800, 803 (Pa. 1989). A review of the second amended complaint reveals that plaintiffs have sufficiently pled facts demonstrating that defendant acted with an evil motive or with reckless, outrageous indifference to the rights of others. Therefore, plaintiffs may assert a claim for punitive damages, but because such a claim does not constitute an independent cause of action, count VI must be stricken from plaintiffs’ second amended complaint. Defendant’s preliminary objection to count VI is sustained.

ORDER OF COURT

And now, April 1, 2011, the court having held oral argument on October 25, 2010 regarding defendant’s preliminary objections to plaintiffs’ second amended complaint, with John J. DeCaro, Jr., Esquire, appearing and representing the plaintiffs, and Richard J. Parks, Esquire, appearing and representing the defendant, the court finds and it is hereby ordered and decreed as follows:

1. Defendant’s preliminary objections alleging legal insufficiency of counts I, IV, and V of plaintiffs’ second amended complaint are hereby overruled pursuant to the attached opinion.

2. Defendant’s preliminary objections alleging legal insufficiency of counts II, III, and VI of plaintiffs’ second amended complaint are hereby sustained pursuant to the attached opinion.

3. Counts II, III, and VI are stricken from plaintiffs’ second amended complaint.

4. The prothonotary shall properly serve notice of this order and attached opinion upon counsel of record; and if a party has no counsel, then upon said party at their last known address, as contained in the court’s file.