text:
    Healey v. Wells Fargo N.A.

      C.P. of Lackawanna County,
    No. 11 CV 3340

      Daniel Mitsakos, for plaintiffs.

      Craig A. Hirneisen, for defendant.
    May 12, 2015
   NEALON, J.,

ORDER

Defendant, Wells Fargo Bank, N. A. (“Wells Fargo”), has filed a de novo appeal of the special trial master’s order of March 12, 2015, requiring three out-of-state employees of Wells Fargo to appear in Lackawanna County for discovery depositions in this matter. (Docket entry no. 63). The gravamen of Wells Fargo’s appeal is that the out-of-state employees are not parties for purposes of Pa.R.C.P. 4007.1(a), and as such, they must be served with subpoenas by plaintiffs, Colleen Healey and Paul Healey (“the Healeys”), in order to be deposed. (Id. at ¶¶ 3, 5-8, 17-20). The Healeys counter that subpoenas are unnecessary since Rule 4007.1(a) provides that “[a] party noticed to be deposed shall be required to appear without subpoena,” and the proffered deponents “are parties to the instant action for purposes of Pennsylvania Rule of Civil Procedure 4007.1(a).” (Docket entry no. 65 at pp. 4-5).

The Healeys commenced this action against Wells Fargo seeking to recover damages based upon Wells Fargo’s failure to offer the Healeys a permanent loan modification agreement after they successfully completed a trial period plan under the Home Affordable Modification Program (HAMP) in which they participated after Ms. Healey was compelled to take a temporaiy medical disability leave from work due to health issues. (Docket entiy no. 10 at ¶¶ 4, 10-48). Following Wells Fargo’s filing of preliminary objections and the dismissal of certain causes of action, the Healeys’ claims for breach of contract, fraud in the inducement, violations of the Unfair Trade Practices and Consumer Protection Law, and promissory estoppel remain pending. See Healey v. Wells Fargo, 2012 WL 994564 (Lacka. Co. 2012). The case management order in effect requires all discovery to be completed by July 31, 2015, with the Healeys’ expert reports being due by August 31, 2015, and Wells Fargo’s expert reports due on or before September 30, 2015. (Docket entry no. 59).

The parties’ discovery dispute is governed by Pennsylvania Rule of Civil Procedure 4007.1(a), which states:

A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action, except that no notice need be given a defendant who was served by publication and has not appeared in the action. A party noticed to be deposed shall be required to appear without subpoena.

Pa.R.C.P. 4007.1(a) (emphasis added). The second sentence in Rule 4007.1(a) “clearly requires that a party who is noticed to appear for a deposition must do so without a subpoena.” Barley v. Consolidated Rail Corp., 820 A.2d 740, 744 (Pa. Super. 2003) (emphasis in original). Conversely, “although the Rule does not expressly state it, the implication of the final sentence is that when a party seeks to depose a nonparty, this must be achieved by means of a subpoena.” Id. Thus, the critical inquiry is whether the three prospective deponents, Brooke Ann Bosier, Beverly DeCaro and Kevin Kreis, are parties for purposes of Rule 4007.1(a).

Noting that Brooke Ann Bosier (“Bosier”) and Kevin Kreis (“Kreis”) reside in Iowa and that Beverly DeCaro (“DeCaro”) is located in New York, Wells Fargo submits that Rule 4007.1(a) requires them to be served with subpoenas, whereas the Healeys’ counsel merely noticed the depositions of these non-parties by forwarding a deposition notice to counsel for Wells Fargo. (Docket entry no. 63 at ¶¶5-8). Wells Fargo further contends that in granting the Healeys’ motion to compel on March 12, 2015, “the special trial master advised counsel that the depositions of Ms. DeCaro, Ms. Bosier, and Mr. Kreis needed to be noticed and held in accordance with applicable law and procedures governing the depositions of third party, out of state witnesses.” (Id. at ¶ 12). In reply, the Healeys argue that “[tjhere is no stenographic record of the March 12, 2015 oral argument” before the special trial master, and since the instant appeal is de novo under Local Rule 4000.1, “the proceedings before the special trial master are irrelevant for purposes of this appeal.” (Docket entry no. 66 at p. 12). The Healeys posit that Bosier, DeCaro and Kreis should be treated as parties under Rule 4007.1(a) inasmuch as “DeCaro and Bosier verified discovery answers for defendant Wells Fargo” and “Kreis responded on Wells Fargo’s behalf to a complaint filed by the Healeys with the Pennsylvania Attorney General’s Office, Bureau of Consumer Protection.” (Docket entry no. 65 at p. 2).

The Pennsylvania Rules of Civil Procedure contain special provisions governing the depositions of corporate parties such as Wells Fargo. Rule 4007.1(e) states that a party may name a corporation as the deponent and describe the intended subjects of the deposition, and “[i]n that event, the organization so named shall serve a designation of one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf....” Pa.R.C.P. 4007.1(e). The Explanatory Comment to Rule 4007.1 clarifies that the “consent to testify” requirement in Pa.R.C.P. 4007.1(e) does not apply to “officers, directors or managing agents” of the corporate deponent since “their position requires them to testify.” Pa.R.C.P. 4007.1, Explanatory Comment (1978) at ¶ 8. In lieu of a deposition by oral examination, a party may conduct a deposition by written interrogatories, and Rule 4004(a)(2) provides that “[a] deposition upon written interrogatories may be taken of a public or private corporation...in accordance with the provisions of Rule 4007.1(e).” Pa.R.C.P. 4004(a)(2). The accompanying Explanatory Comment cautions that “[i]f a person who has knowledge of the facts is not an officer, director or managing agent but is an employee and he refuses his consent, discovery may be used to ascertain his identity and he may thereafter be subpoenaed to appear.” Id., Explanatory Comment (1978) at ¶4. The synthesis of these rules regulating the depositions of corporate representatives is that an officer, director or managing agent of a corporation is obligated to appear at a deposition on behalf of the corporation because “their position requires them to testify,” while an employee “who has knowledge of the facts” but “is not an officer, director or managing “agent” may be subjected to a deposition only following service of a subpoena if [s]he does not consent to the deposition.

The Superior Court of Pennsylvania has cautioned that “[t]he term ‘managing agent’ as used in Pa.R.C.P. 4020(a) and 4007.1(e) should not be interpreted too literally.” Mecca El v. Murzyn, 831 A.2d 724, 727 (Pa. Super. 2003). Rather, the question of “[wjhether a person is a managing agent ‘is to be answered pragmatically on an ad hoc basis.’” Id. (quoting Rivera v. Philadelphia Theological Seminary of St. Charles Borromeo, Inc., 326 Pa. Super. 509, 529, 474 A.2d 605, 616 (1984), aff’d as modified on other grounds, 510 Pa. 1,507 A.2d 1 (1986)). According to the Superior Court, “where an individual’s interests are identified with those of his principal, and the nature of the individual’s functions, responsibilities and knowledge pertain to the subject matter of the deposition and litigation, that individual is an appropriate ‘managing agent’” for purposes of the Pennsylvania Rules of Civil Procedure. Id.

The federal rules of civil procedure have comparable provisions concerning the depositions of corporate representatives. See Fed. R. Civ. P. 30(b)(6); Fed. R. Civ. P. 31(a)(4); Fed. R. Civ. P. 32(a)(3). The Superior Court has referenced federal precedent when deciding whether an organization’s employee is a “managing agent” under the state discovery rules. See Rivera, 326 Pa. Super, at 529-530, 474 A.2d at 615-616. Federal decisions consider a corporate employee to be a “managing agent,” and thereby obligated to appear for a deposition without a subpoena, if the employee possesses “the authority to speak for the corporation” on the subject matter of the litigation. Philadelphia Indemnity Insurance Company v. Federal Insurance Company, 215 F.R.D. 492, 494 (E.D. Pa. 2003) (citing cases). Other relevant federal criteria are whether the employee (1) has the power to exercise judgment and discretion on behalf of the corporation with regard to the subject matter of the litigation, (2) can be depended upon to carry out the corporate employer’s direction to provide required testimony, and (3) has an alignment of interests with the corporation rather than one of the other parties. Dempsey v. Bucknell University, 2013 WL 5352284, at *4 (M.D. Pa. 2013) (quoting Philadelphia Indemnity Insurance Company, supra); Luther v. Kia Motors America, Inc., 2009 WL 1727909, at *2-3 (W.D. Pa. 2009). “When a person’s managing agency status is debatable, ‘courts in pretrial proceedings have resolved doubts under the standard in favor of the examining party.’” Dempsey, supra (quoting E.I. DuPont de Nemours & Co. v. Kolon Industries, Inc., 268 F.R.D. 45, 49 (E.D. Va. 2010)).

During oral argument on Wells Fargo’s discovery appeal, counsel for the parties stipulated that the official job titles of Bosier and DeCaro are vice-presidents of loan documentation. In mortgage foreclosure litigation, Wells Fargo’s vice-presidents of loan documentation serve as the affiants for the foreclosure complaints that are filed by Wells Fargo, and attest on behalf of Wells Fargo that the borrower has defaulted on the mortgage obligations, that Wells Fargo has furnished the statutorily required pre-foreclosure notices, and that the borrower has failed to cure the default or take the necessary steps to avoid foreclosure. See Wells Fargo Bank N.A. v. Spivak, 104 A.3d 7, 9 (Pa. Super. 2014). Counsel further confirmed at the oral argument that Kreis is the “Executive Management Specialist in the office of the president,” and was responsible for replying on Wells Fargo’s behalf to the complaint that the Healeys filed with the Bureau of Consumer Protection. Last, the Healeys’ counsel represented that the Healeys are willing to conduct the discovery depositions of the out-of-state deponents, Bosier, DeCaro and Kreis, by videoconference rather than personal attendance in Lackawanna County.

By virtue of their official titles as vice-presidents of Wells Fargo, and their apparent authority to speak on behalf of Wells Fargo in this case by verifying its discovery responses, Bosier and DeCaro are “officers” of Wells Fargo who may be deposed by the Healeys without the necessity of a subpoena. See Philadelphia Indemnity Insurance Company, supra (holding that insurance company’s “assistant vice president, D & O Claims” and “vice president, manager, specialty claims” were “corporate officers that may be deposed without a subpoena by Philadelphia Indemnity.”). Furthermore, Kreis is a “managing agent” of Wells Fargo for purposes of his discovery deposition in this case. As a current “executive management specialist in the office of the president,” Kreis’ “interests are identified with those of his principal,” and since Kreis was empowered by Wells Fargo to respond to the complaint that the Healeys filed with the Bureau of Consumer Protection, his “functions, responsibilities and knowledge pertain to the subject matter” of this case. Mecca El, 831 A.2d at 727. Having been designated by Wells Fargo to reply to the Bureau of Consumer Protection, Kreis clearly has “authority to speak for the corporation” concerning the Healeys’ allegations, and is vested with the power to exercise his judgment and discretion for Wells Fargo in that matter. See Rivera, 326 Pa. Super, at 530, 474 A.2d at 616 (in wrongful death action against seminary arising from altar boy’s drowning in seminary swimming pool, dean of students, to whom the seminary rector referred requests to use the seminary pool, was the seminary’s managing agent for deposition purposes); Dempsey, supra, at *4-5 (finding that faculty members, an events manager and an associate registrar were managing agents of a university in suit filed by a student who was formally censured for disorderly conduct). Thus, Kreis must also appear for a discovery deposition without first being served with a subpoena.

A correlative issue, which often arises in discovery disputes involving the depositions of out-of-state corporate employees, concerns the situs of the proposed deposition. See, e.g., Stemrich v. Zabiyaka, 2013 WL 1127484, at *2 (M.D. Pa. 2013) (“Pennsylvania courts follow the general rule that depositions of corporate agents and officers should ordinarily be taken at the corporation’s principal place of business.”); Luther, supra, at *3 (“If a location other than the corporate place of business is proposed by the party seeking the deposition, and the corporation files a timely objection, a protective order should be granted unless there are unusual circumstances which would justify allowing the deposition to proceed at the place suggested by the deposing party”). In the case sub judice, the identified deponents are located in Iowa and New York. However, the Healeys have agreed to conduct the depositions by videoconference, and as we have previously observed, “[cjourts have embraced videoconferencing as a cost effective alternative to the personal attendance of geographically distant or unavailable witnesses.” Locker v. Henzes, 2012 WL 485466, at *4 (Lacka. Co. 2012). Consequently, although B osier, DeCaro and Kreis may be deposed without a subpoena pursuant to Pa. R.C.P. 4007.1(a), they need only submit to videoconference depositions which “would not require either party to travel.” Stemrich, supra, at *3.

And now, this 12th day of May, 2015, upon consideration of “defendant’s appeal motion of special trial master’s order granting plaintiffs’ motion to compel depositions,” the memoranda of law submitted by the parties, and the oral argument of counsel on May 4,2015, and based upon the reasoning set forth above, it is hereby ordered and decreed that:

1. “Defendant’s appeal motion of special trial master’s order granting plaintiffs’ motion to compel depositions” is denied, subject to plaintiffs’ stipulation with respect to the videoconference format; and

2. “Plaintiffs’ motion to compel depositions” is granted to the extent that Brooke Ann B osier, vice-president of loan documentation, Beverly DeCaro, vice-president of loan documentation, and Kevin Kreis, executive management specialist in the office of the president, shall appear for their depositions without subpoena pursuant to Pa.R.C.P. 4007.1(a) prior to July 31, 2015, provided that their depositions are conducted by videoconference at a mutually convenient time. See Pa.R.C.P. 4012(a)(2)-(3) (empowering courts to prescribe the method and place of a deposition.).

      . Under Lacka. Co. R.C.P. 4000.1, discovery motions must initially be presented to and decided by the court-appointed special trial master whose ruling “may be appealed de novo” to the court of common pleas within ten days of the master’s decision. Fratzola v. Klepadlo, 26 Pa. D. & C. 5th 533, 537-538 (Lacka Co. 2012).

      . Additionally Rule 4020 addresses when discovery depositions may be used against a party at trial, and authorizes the admission or use by an adverse party of “[t]he deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a party or a person designated under Rule 4004(a)(2) or 4007.1(e) to testify on behalf of a public or private corporation....” Pa. R.C.P. 4020(a)(2).


source: Caselaw Access Project

author: WILLIAMSON, J.,

license: Public Domain

text:
    Oltsmanns v. Erie Insurance Co.

      C.P. of Monroe County,
    No. 10796 CIVIL 2014

      M. Lee Albright, for plaintiff.

      Leo A. Bohanski, for defendant.
    April 10, 2015
   WILLIAMSON, J.,

This matter involves a dispute over the terms of settlement of an underinsured motorist claim (“UIM”). Jesse Oltmanns (“plaintiff’) filed a praecipe for writ of summons against the defendant, Erie Insurance Exchange (“Erie”) on December 18, 2014 and a writ was issued. On January 20, 2015, plaintiff filed a motion to enforce settlement seeking enforcement of terms of settlement together with filing costs and attorney fees. Plaintiff also filed a praecipe listing the matter for argument court on the same date. This court ultimately issued a Rule to Show Cause returnable for an answer by Erie, and Erie filed a timely answer. The matter was re-listed for argument on April 6, 2015. Both parties submitted briefs and attended oral argument.

BACKGROUND

Plaintiff alleges he was in an automobile accident on July 7, 2011. He obtained a settlement against the responsible parties for the policy limit available of $15,000. Thereafter, plaintiff made a claim against Erie, his own insurer, for UIM benefits. Plaintiff alleges an agreement for settlement was reached on April 9, 2014, between plaintiff’s counsel, and an adjuster for Erie. Plaintiff submitted in support of his claims herein, a copy of an e-mail his counsel sent to the Erie adjuster dated April 9, 2014 at 3:48 p.m., and, a copy of an e-mail from the Erie adjuster to plaintiff’s counsel also dated April 9, 2014, at 3:11 p.m.

The e-mail first sent from Erie to plaintiff’s counsel indicated the parties can settle at $8,500, that a release was attached for the plaintiff to sign, and that payment would be issued promptly following a return of the original signed release. The e-mail response from plaintiff’s counsel sent 37 minutes later to Erie, indicated agreement to the $8,500 settlement and that in lieu of signing a release, the correspondence (e-mail) from plaintiff’s counsel would memorialize the agreement. Plaintiff’s counsel went on to acknowledge in that e-mail that Erie would have no further obligations to plaintiff as a result of the $8,500 offered.

Plaintiff’s motion and brief argue the parties had an agreement to settle for $8,500 and that Erie refuses to pay the amount due. Plaintiff seeks enforcement of that agreement and attorney fees of $2,000 plus filing costs of this action in the amount of $140.

DISCUSSION

Plaintiff argued in his motion and brief that an agreement was reached and basic contract law requires defendant to make payment. Plaintiff cites in his motion cases that support settlement agreements being enforceable by contract law. We agree. However, that does not immediately resolve the issue in this matter. The parties have a genuine issue as to what was agreed to by the parties.

The plaintiff argued in his motion and brief, that the parties agreed to settle for $8,500 on April 9, 2014 and that he knew of no reason why Erie refused to tender the funds as agreed. Erie responded in their answer and brief that the sole reason the funds have not been paid is the plaintiff’s failure or refusal to sign a release. We do not know if there were any other communications between Erie or Erie’s counsel and plaintiff’s counsel, after the April 9, 2014 e-mails regarding settlement, so we cannot say with certainty that plaintiff’s counsel was aware of Erie’s continuing request for a signed release before a check would be issued. However, we find it extremely hard to believe that there was no conversation between the parties about the matter prior to plaintiff filing the instant action in December 2014, and therefore, plaintiff should have been aware of why the funds had not been sent. That reason was that Erie first wanted a signed release from the plaintiff. Simple rules of professionalism would dictate a telephone call or exchange of correspondence to try and resolve the matter before filing suit.

We question the communications, in part because this matter may have been resolved sooner, and in part because of what has been represented to the court. The plaintiff has indicated in filings that he had no idea why the settlement proceeds were not paid by Erie. However, in the plaintiff’s own filings, he has attached the April 9, 2014 e-mail of Erie, that was sent to plaintiff’s counsel, indicating the matter could be settled for $8,500, and that the money would be paid after the plaintiff signed and returned a release. It seems clear what Erie expected. But plaintiff represented in his brief, “plaintiff is not aware of any reason why defendants now claim that they will not pay the settlement, other than they do not wish to honor the agreement they entered into.” We fail to see how plaintiff did not know Erie expected a signed release. If plaintiff really did not know, it would have been prudent to inquire with Erie, at some point in that eight (8) month time period before he filed this action, in an effort to resolve the matter.

At oral argument, plaintiff’s counsel conceded he now knows Erie wants a signed release before the funds will be released. This is the same request Erie made in their e-mail sent to plaintiff’s counsel on April 9, 2014. Therefore, we will review whether or not a contract for settlement exists between the parties based upon the stipulated facts supplied to this court in the pleadings.

Plaintiff and Erie both admit to the e-mail exchange of April 9,2014 and the e-mails attached to plaintiff’s motion to enforce settlement as Exhibits “A” and “B.” Erie sent the first e-mail at 3:11 p.m. indicating $8,500 would settle the case and that the funds would be sent after the plaintiff signed and returned a release to Erie. Plaintiff’s counsel confirmed agreement to $8,500 in his e-mail to Erie sent 37 minutes later. However, plaintiff’s counsel did not agree to plaintiff signing a release, and instead included language in his e-mail that he indicated was in lieu of a signed release from the plaintiff. Under basic contract law, the e-mails as presented indicate Erie made an offer; and, plaintiff, through counsel, counter-offered by indicating the amount was acceptable, but proposing that language in the e-mail suffice instead of a signed release. There is no indication that Erie accepted this counter-offer. Therefore, there was no meeting of the minds, and no agreement under basic contract law for the settlement plaintiff seeks to enforce.

Plaintiff argued at oral argument that no release is required in this UIM claim, and therefore, the agreement as to the $8,500 settlement should stand. Plaintiff stated that the insurance contract between plaintiff and Erie is silent as to any requirement for a signed release when a UIM claim is settled, and therefore, Erie’s requirement of a signed release is unenforceable. Plaintiff did not provide any case law in support of this proposition either at argument or in his brief. Plaintiff did not provide a copy of the insurance policy between plaintiff and Erie, so it is unknown what the policy states. However, we are unaware of any case law that disallows a UIM carrier from requiring a signed release of its insured as a term of settlement, just because the underlying policy is silent on the issue.

Furthermore, we find the cases cited by Erie out of the Eastern District of Pennsylvania, although not binding, to be persuasive. As the court stated in Leab v. Cincinnati Ins. Co., 1997 U.S. Dist. LEXIS 8868 (E.D. Pa. 1997), “[sjigning a release is (was) the only means by which to put an end to the UIM coverage dispute.” Id. at **23-24. A release confirms the parties’ agreement; it confirms the client is fully aware and agreeable; it assures the UIM carrier the matter is over; and it prevents any further claims, which is the goal of any settlement. If the parties cannot agree on a signed release as a condition to settlement, they can proceed to trial. For these reasons, we find that nothing prevents Erie from requesting a signed release as part of the terms of settlement. As the plaintiff failed to do so, and failed to agree to do so, there can be no agreement to settle.

We also note the following of interest to this matter. Erie attached to their answer, a copy of the release the plaintiff signed to receive the $15,000 policy limits of the tortfeasor’s insurance policy to settle that claim. (Exh. “A”). It is no different, from a policy perspective or from a purely legal perspective, that a UIM carrier would also want a signed release. Erie also attached a copy of the release they sent to plaintiff’s counsel for the plaintiff to sign. (Exh. “B”). We note the release only seeks to release Erie, and only for this incident. There appears to be no reason not to sign the release, and none was given, but for the request of the plaintiff’s counsel. That request evidences a failure of a meeting of the minds, and of an enforceable contract in this case.

Finally, we take note of the fact that a lot of time has been lost in this matter. The plaintiff, who is the true party in this proceeding, has been without settlement funds he could have received one year ago. There was no evidence the plaintiff refused to sign the release. The plaintiff may not understand the significance of the requested release one way or another to him. We are left to wonder if the plaintiff was even aware of his option to sign a release or not sign a release in order to have obtained his settlement funds sooner. It may be that plaintiff’s counsel believes no signed release should be necessaiy in a UIM case. It may be that the actions taken by plaintiff’s counsel are in furtherance of zealous advocacy on the part of clients. It may be that plaintiff’s counsel’s language in the e-mail was simply an attempt to effect the same result as a signed release, but in a quicker manner. In the end, it is the client who suffers the delay of a potential settlement in this matter.

We find that the parties did not reach an agreement as to the terms of settlement as Erie conditioned payment on receipt of a signed release. Plaintiff, through counsel, did not agree to execution of that release. There is nothing to support the contention that a request for a signed release as a term of settlement in a UIM case is improper. Therefore, the motion to enforce settlement will be denied. Hopefully, the parties can still resolve this matter by a settlement in the near future.

ORDER

And now, this 10th day of April, 2015, the plaintiff’s motion to enforce settlement is denied.

      . We acknowledge this language paraphrases the e-mails, but covers the important facts.

      . This was the reason cited in Erie’s answer to the motion to enforce settlement, their brief, and at oral argument.


text:
    Commonwealth v. Corliss

      C.P. of Monroe County,
    No. 1748 CRIMINAL 2013

      Michael Rakaczewski, for Commonwealth.

      Pro se defendant.
    April 16, 2015
   WILLIAMSON, J.,

This matter comes before the court on defendant’s pro se “amended petition for habeas corpus” filed April 6, 2015. We note that the defendant has filed numerous petitions for habeas corpus, made previous requests for reconsideration, and now files this petition which appears, in part, to seek the same relief as prior petitions. We note that while the defendant continues to assert essentially the same thing, namely that he was not subject to the additional registration requirements of Megan’s Law IV, effective December 20, 2012, for alleged violations thereof in 2013, it is necessary to set forth in full our interpretation of the statute. We also note the defendant’s other contention in this petition, that his prior conviction is not an element of the offense charged under 18 Pa C.S.A. §4915.1. We will again address these issues in an effort to move the matters along.

BACKGROUND

The defendant was charged with three (3) counts of failing to properly register pursuant to the requirements of 18 Pa. C. S. A. § 4915.1. The duty to register arises out of the defendant’s conviction in 1998 for certain sexual offenses. The defendant was sentenced and served his full sentence, gaining release in 2008. Upon his release, the defendant was subject to registration requirements of Megan’s Law as a sexual offender. On December 20, 2012, Act 91 of 2012 took effect, and was known as Megan’s Law IV. (42 Pa. C.S.A. §9799.10 et. seq.). This act provided additional registration requirements for sexual offenders. At the time, the defendant was no longer serving a sentence, and he was not on parole or probation for any offenses. The defendant was still required to register as a sex offender under prior versions of Megan’s Law, and he had not yet completed the time period in which he was required to register as such. In 2013, he allegedly failed to register vehicles, required under Megan’s Law IV, Act 91 of 2012, effective on December 20, 2012.

The defendant was initially represented by counsel who filed timely omnibus motions. The defendant then discharged counsel and chose to proceed pro se in this matter in January 2014. The defendant has filed various motions and petitions challenging the legal sufficiency of the Commonwealth’s charges since the time he started to proceed pro se. Many of these motions and petitions were filed after the time allowed by law, and any extensions granted by this court. Furthermore, all of defendant’s motions and petitions have been interlocutory by nature. In some instances, the defendant requested permission to appeal an interlocutory order, which were denied by this court. The defendant has also sought permission of the Superior Court to appeal interlocutory orders, which have been denied.

Trial on the ultimate issues in this case has been delayed due to defendant’s filings, many of which were duplicative and already decided by this court. Several of the motions and petitions appear to be similar restatements of the same issues. While the defendant has an absolute right to file motions and petitions, they must conform to the Rules of Criminal Procedure, Statutes of this Commonwealth, and not be duplicative of prior ones. Therefore, in an attempt to bring finality to the pre-trial issues raised by the defendant in this case, we will issue the following discussion and order. We will treat defendant’s instant petition as a new petition and as a request for reconsideration of our order of March 27, 2015.

DISCUSSION

In defendant’s amended petition for habeas corpus, the defendant essentially raises the following three (3) issues:

1. SORNA (Megan’s Law IV) of 42 Pa. C.S.A. § 9799.10 et seq. effective December 20, 2012 by Act 91 of 2012 does not apply to the defendant, and therefore, no requirement that he register vehicles for which he has been charged;
2. SORNA (Megan’s Law IV) § 9799.13 (3) as amended by Act 19 of 2014 effective March 14, 2014 does not apply to the defendant as the alleged date of his violations were in 2013 and pre-date the amendment to 42 Pa. C.S.A. § 9799.13 (3).
3. Defendant’s prior conviction is not an element of 18 Pa. C.S.A. § 4915.1, for which the defendant has been charged.

We will address the defendant’s issues even though they appear to have been addressed previously by this court, as the defendant has raised additional arguments; and/or slightly different issues. We have addressed the application of SORNA, or Megan’s Law IV, effective December 20,2012 on the defendant in our prior opinions and orders dated March 16,2015 and March 27,2015. We incorporate those opinions herein as though set forth at length in this opinion and order. The defendant continues to assert in his amended petition for habeas corpus relief, that the new requirements of Megan’s Law IV effective on December 20, 2012 only apply to individuals still serving a sentence or on parole or probation on December 20, 2012 as a result of a conviction as a sexual offender. The defendant cites 42 Pa. C.S.A. § 9799.13 (2) of Act 91 of 2012 in support thereof. The defendant then states that such an application is consistent with prior case law applying Megan’s Law requirements retroactively only to defendants who remain in custody, or serving any portion of their original sentence.

As we addressed in our opinions and orders of March 16, 2015 and March 27,2015, the cases cited by the defendant were decided based upon the language of Megan’s Law II. Here, the issue is the language of Megan’s Law IV of Act 91 of 2012, which was in effect at the time of the defendant’s alleged conduct in 2013. Our reasoning that Megan’s Law IV, (specifically Act 91 of 2012) applies to the defendant was set forth at length in an opinion and order of March 27, 2015. We also set forth therein the reason for our initial misapplication of the amendment to Megan’s Law IV enacted March 14, 2014 by Act 19 of 2014, that specifically revised 42 Pa. C.S.A. § 9799.13 (3). We still find the language of 42 Pa. C.S.A. §9799.13 (3), as it was written under Act 91 of 2012, effective December 20, 2012, to require application of Megan’s Law IV registration requirements on the defendant, for the reasons set forth in our opinion and order of March 27, 2015.

The defendant now raises the issue that the purpose set forth in Megan’s Law IV under 42 Pa. C.S.A. § 9799.10 (4) (Act 91 of 2012) shows that the new amendments of December 20, 2012 were not meant to apply to the defendant. The defendant then argues the wording of § 9799.10 (4) is consistent with Commonwealth v. Richardson, 784 A.2d 126 (Pa. Super. 2001) and other cases cited by the defendant, even though Richardson, and the other cases dealt with language in Megan’s Law I and II. However, the issue here is the language of Megan’s Law IV pursuant to Act 91 of 2012, effective December 20, 2012.

We find the following language supports application of the registration requirements of Megan’s Law IV to the defendant. First, 42 Pa. C.S.A. § 9799.10, “purposes of subchapter,” effective December 20, 2012, states in part as follows:

“(1) To bring the Commonwealth into substantial compliance with the Adam Walsh Child Protection and Safety Act of 2006...
(2) To require individuals convicted or adjudicated delinquent of certain sexual offenses to register with the Pennsylvania State Police and to otherwise comply with this subchapter if those individuals reside within this Commonwealth...
(3)...
(4) To require individuals who are currently subject to the criminal justice system of this Commonwealth as inmates, supervised with respect to probation or parole or registrants under this subchapter to register with the Pennsylvania State Police and to otherwise comply with this subchapter.” (emphasis added)

42 Pa. C.S.A. § 9799.10.

In addition to the stated purpose to conform with the Federal “Adam Walsh Act,” the purpose includes registering those individuals convicted of certain sexual offenses under paragraph (2), and “registrants under this subchapter” under paragraph (4). The defendant is someone who was “convicted” of certain sexual offenses as defined under paragraph (2). The language therein does not state it was someone previously convicted, or convicted after the effective date of the statute. Rather, it just states “convicted,” which applies to the defendant. Paragraph (2) then goes on to require that those individuals “convicted” must register and “otherwise comply with this subchapter.” The defendant would also appear to be a “registrant.” The defendant argues that § 9799.10 (4) only applies to those currently subject to the criminal justice system. However, that ignores the sentence structure with a comma (,) after “inmates” and the word “or” prior to “registrants.” The sentence break and “or” implies three different classifications: an inmate; or individual supervised on probation or parole; and a “registrant.” A “registrant” is further defined as “one who registers” according to Black’s Law Dictionary, 6th ed. The defendant was someone who registers as of December 20, 2012.

We find further support for intended application of Megan’s Law IV (Act 91 of 2012) to the defendant under 42 Pa. C.S.A. §9799.11, “legislative findings and declaration of policy”:

“(a) (1)...
(2) This Commonwealth’s laws regarding registration of sexual offenders need to be strengthened.
(3)...
(b) Declaration of policy. The general assembly declares as follows:
(1) It is the intention of the general assembly to substantially comply with the Adam Walsh Child Protection and Safety Act of 2006.” et seq.

42 Pa. C.S.A. §9799.11.

Furthermore, unlike the enabling legislation in Megan’s Law II (Act 18 of 2000), there is no specific language as to application of Megan’s Law IV (Act 91 of 2012) other than in § 9799.13. In Megan’s Law II, at § 5, the act stated “[t]he reenactment and amendments of 42 Pa. C.S.A. ch. 97 subch. H shall apply to individuals incarcerated or convicted on or after the effective date of this act.” See 42 Pa. C.S.A. ch. 97 §5 (Act 18 of 2001). However, Megan’s Law IV (Act 91 of 2012) addresses applicability in § 9799.13, which includes various reasons for application of the act to an individual. This includes a separate listing of the following:

“(1) An individual who, on or after the effective date of this section, is convicted of...
(1.1)...
(1.2)...
(2) An individual who, on or after the effective date of this section, is ... an inmate..., is being supervised by the Pennsylvania Board of Probation or Parole or county probation or
parole, is subject to a sentence of intermediate punishment or has supervision transferred ...
(2.1) An individual who, on or after the effective date of this section, is ... an inmate in a Federal Correctional Institute...
(3) An individual who is required to register or was required to register and failed to register with the Pennsylvania State Police under this subchapter prior to the effective date of this section and who has not fulfilled the period of registration as of the effective date of this section.” (emphasis added)

42 Pa. C.S.A. §9799.13 (Act 91 of 2012 effective December 20, 2012).

The defendant argues that Megan’s Law IV only applies to those still serving a sentence or on probation or parole. He cites § 9799.13 (2). However, the sections cited above clearly show that the scenario the defendant argues is only one type of individual to which the act now applies. It also applies to those on federal probation, those in a federal institution, and those required to register prior to the effective date of this act (this last reason applying to the defendant). The defendant argues that the language of § 9799.13 (3) reads differently than as interpreted by this court, and instead, only applies to those who failed to register, and not to both those already required to register who have been registering, and those individuals required to register, but failed to do so. We find the legislature meant to require both types of individuals to be applicable under Megan’s Law IV (Act 91 of 2012) by this language.

The defendant next argues that the amendment effective March 14, 2014 (Act 19 of 2014) as to 42 Pa. C.S.A. § 9799.13 (3) was in response to Megan’s Law III (Act 152 of 2004) being vacated by the Pennsylvania Supreme Court in Commonwealth v. Neiman, 84 A.3d 603 (Pa. Super. 2013). However, as we have set forth in prior opinions, the defendant does not cite the actual holding, and reason therefore, of the case he cites. In Neiman, the Supreme Court was faced with whether Act 152 of 2004 violated the “single subject” rule of Article III, Section 3 of the Pennsylvania Constitution. In other words, the court addressed whether or not other judicial code amendments than just Megan’s Law amendments could be made in the same act. The Pennsylvania Supreme Court ultimately found that the act, which addressed more than one subject under the Judicial Code, was violative of the Pennsylvania Constitution because it did not relate to a single unifying subject. It included more than just Megan’s Law amendments, and that was what was unconstitutional. The court further found that the Megan’s Law Amendments of Act 152 could not stand on their own as a result of the other non-Megan’s Law amendments, so the entire act was struck by the court. In any event, the legislature adopted Megan’s Law IV effective December 20, 2012. Therefore, the Neiman case had nothing to do with the legislature amending 42 Pa. C.S.A. § 9799.13 (3) on March 14, 2014 by Act 19 of 2014.

The defendant’s second argument is that SORNA (Megan’s Law IV) as amended March 14, 2014 does not apply to him. This is the amendment specifically to 42 Pa. C.S.A. § 9799.13 (3). We agree, and specifically addressed this in our opinion and order filed March 27, 2015 on defendant’s motion for reconsideration. Furthermore, we explained in that opinion and order the mistake we made in our opinion and order of March 16,2015. The defendant goes on to argue that it was not a mistake and is further evidence of this court advocating for the Commonwealth. The defendant is correct that the Commonwealth also misstated the application of the March 14,2014 amendment of 42 Pa. C.S.A. § 9799.13 (3) as to the defendant in their brief. Quite frankly, this court read the language that appears in the most current copy of Purdon’s Pennsylvania Statutes and Consolidated Statutes Annotated in initially referencing the Act 19 of 2014 language for 42 Pa. C.S.A. § 9799.13 (3) as applying to the defendant. We failed to note the effective date language at the end of the text of the statute that noted paragraph 3 was amended March 14, 2014, and thus, believing it was part of the original text of § 9799.13 enacted by Act 91 of 2012. That is how this court mistakenly applied the March 14, 2014 amendment in our order of March 15,2015. However, whether or not a court relies on the law cited by one party or the other, does not mean they are “advocating” for a particular party. In any case, this issue was resolved in our order of March 27, 2015, when we reviewed application of the proper version of Megan’s Law IV as to the defendant.

Finally, the defendant states his prior conviction is not an element of 18 Pa. C.S.A. §4915.1 for which he is charged. We note the defendant has raised this issue in an appeal already taken to the Superior Court in 3120 EDA 2014. We note the defendant raised the same issue in his brief to the Superior Court, namely whether or not §4915.1 requires evidence of a prior conviction as an element of the offense. The defendant sought to have any evidence of his prior conviction, subjecting him to registration as a sexual offender, stricken at time of trial. The defendant argued the prior conviction was not an element of the offense charged, and therefore inadmissible.

In his amended petition for habeas corpus relief, the defendant again requests such information be excluded at time of trial. The defendant still cites to Commonwealth v. Jemison, 98 A.3d 1254 (2014) as authority which this court previously addressed. As the matter is already on appeal, we need not address this issue again.

We recognize that all of the issues raised by the defendant in his amended petition for habeas corpus relief are interlocutory by nature. The issue concerning the admissibility of the defendant’s prior conviction subjecting him to registration is already on appeal with the Superior Court. As can be seen from the docket in this case, the defendant has filed several appeals to interlocutory orders. The defendant will, in all likelihood, wish to file an appeal to this interlocutory order, with or without permission of this court. As the defendant will state, he has a right to file a request to appeal an interlocutory order, even when permission is denied by this court. However, he has already appealed at least one issue that he is now requesting relief yet again from this court (admissibility of his prior conviction as an element of the offense for which he is currently charged); he has filed motions and petitions after deadlines set to do so expired; and, several of his motions/petitions contain matters similar to or the same as ones already decided by this court. Although all of the issues the defendant has requested be heard on appeal are issues properly preserved and raised only if and after convicted, he continues to request permission for an interlocutory appeal. Also, as the pleadings clearly indicate, the defendant believes the court is acting against him as evidenced by his references to the court “advocating” for the Commonwealth and interposing legal authority “sua sponte.” We believe the defendant is likely to continue filing motions and petitions, despite deadlines having expired, and appealing interlocutory orders (rather than proceed to trial and preserving the issue on appeal only if convicted, which is the proper procedure for interlocutory appeals unless Rule 702(b) is met). Therefore, absent good cause shown, we will not entertain any additional omnibus pre-trial motions or petitions, including amended petitions.

However, we do note that defendant has raised issues with regard to the interpretation of language, and applicability, of 42 Pa. C.S.A. § 9799.13 (3) as it was worded pursuant to Act 91 of 2012 (effective December 20, 2012). This language directly effects whether or not the charges in this case may proceed against the defendant. If the defendant is not subject to Megan’s Law IV requirements, then the defendant cannot be convicted under 42 Pa. C.S.A. §9715.1 as charged in this case. There is no case law on this issue. We also note that the legislature amended language at § 9799.13 (3) by Act 19 of 2014 after this defendant’s arrest in 2013. Therefore, there may be an issue with regard to the interpretation of the language of 42 Pa. C.S.A. § 9799.13 (3). The pro se defendant has previously filed interlocutory appeals, when this court has denied permission to do so and is likely to continue doing so. The issue presented in this matter is one in which a final order would be within the jurisdiction of the appellate court after trial. There is a controlling question of law as to which there is substantial ground for difference of opinion, and an immediate appeal would materially advance the ultimate termination of this matter, either by dismissal of the charges, or to proceed to trial. We will deny the defendant’s motion, but will grant permission for the defendant to appeal this court’s decision with regard to applicability of Megan’s Law IV effective December 20, 2012 on the defendant. The defendant is advised that if he wishes to appeal, he must follow the proper procedures and time deadlines on appeal. The defendant is advised to consult the Pennsylvania Rules of Procedure, including Chapter 13 of the Rules of Appellate Procedure. The case of Commonwealth v. McMurren, 945 A.2d 194 (Pa. Super. 2008) may provide the defendant with further guidance.

ORDER

And now, this 16th day of April, 2015, the defendant’s pro se amended petition for habeas corpus dated April 6, 2015 is hereby denied.

This court is of the opinion that this order involves a controlling question of law regarding the applicability under 42 Pa. C.S.A. § 9799.13 (3) (Megan’s Law IV-Act 91 of 2012 effective December 20, 2012) as to which there is a substantial ground for difference of opinion and that an immediate appeal from this order may materially advance the ultimate termination of the matter.

If the defendant wishes to appeal this order, he is advised to consult the Pennsylvania Rules of Appellate Procedure and file a petition for permission to appeal pursuant to Chapter 13 of the Appellate Rules of Procedure. Defendant should be aware of the deadline to file such an appeal.


text:
    Santiago v. Abuiso

      C.P. of Monroe County
    April 16, 2015
   WILLIAMSON, J.,

This matter comes before us on preliminary objections to plaintiff Lisa Santiago’s complaint filed by defendant Jason Abuiso on January 26, 2015. Defendant Jason Abuiso filed a brief in support of preliminary objections on March 17,2015. Lisa Santiago (hereafter “plaintiff’) filed a brief in opposition to defendant Jason Abuiso’s preliminary objections on April 1,2015.

Background

In the underlying complaint, plaintiff alleges that, at all relevant times, defendant Jason Abuiso operated a 1978 Buick Regal owned by defendant Joseph Robles, with defendant Robles’ permission and consent. On or about December 1, 2007, plaintiff was operating a 2007 Nissan Sentra with the permission and consent of the owner Robert McGrath. While traveling south on State Route 196, plaintiff was stopped in traffic near its intersection with Nittany Court in Mount Pocono, PA. Around 1:06 p.m., defendant Abuiso was traveling behind plaintiff and allegedly rear-ended plaintiff’s vehicle causing numerous injuries and disabilities. Plaintiff alleges that she suffered back and neck injuries from the accident and is seeking in excess of $50,000 total from the two defendants. Plaintiff also included a claim of negligence against defendant Joseph Robles for negligently entrusting his vehicle.

On December 1,2009, plaintiff filed a praecipe for writ of summons in the Monroe County Court of Common Pleas. Monroe County sheriffs attempted to serve defendant Abuiso with process after the writ of summons was received but he was no longer at the address. In January 2010, plaintiff was informed that defendant Abuiso was no longer at that address and service had not been effectuated. In December 2014, plaintiff located defendant Abuiso and served him with process on December 7, 2014. The underlying complaint was filed on December 11, 2014.

Argument

“Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint.” Haun v. Community Health Systems, Inc., 14 A.3d 120, 123 (Pa. Super. 2011). Moreover, “preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief.” Id. Finally, “if any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.” Id.

In ruling on preliminary objections, “all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences deducible therefrom, must be accepted as true.” Wurth by Wurth v. City of Philadelphia, 584 A.2d 403, 407 (Pa. Cmwlth. 1990). The “court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinions.” Penn Title Ins, Co. v. Deshler, 661 A.2d 481, 483 (Pa. Cmwlth. 1995).

Defendant Abuiso’s first preliminary objection is in the nature of a motion to dismiss plaintiff’s complaint for lack of jurisdiction, improper service, and failure to conform to law or rule of court pursuant to Pa.RCP. 1028(a)(1) and Pa.RCP. 1028(a)(2). Defendant Abuiso argues that plaintiff has the obligation to serve him with original process on or before the statute of limitations, and if not, then to prove that she made a good-faith effort to serve the original process on defendant Abuiso.

The bar of the statute of limitations is an affirmative defense to be raised as new matter in a responsive pleading, not by means of preliminary objections in the nature of a demurrer. Pa.R.C.P. No. 1030; Lamp v. Heyman, 469 Pa. 465, 470, 366 A.2d 882, 885 (1976). However, plaintiff has not objected to this issue being raised by way of preliminary objections. Cases in Pennsylvania have allowed preliminary objections raising the issue that improper service of a writ of summons has failed to toll the statute of limitations for the filing of a complaint when there has been no procedural objection by the opposing party. Lamp v. Heyman, 469 Pa. 465, 470, 366 A.2d 882, 885 (1976); McCreesh v. City of Philadelphia, 585 Pa. 211, 227, 888 A.2d 664, 674 (2005); Sayne v. Wylie, 296 Pa. Super. 134, 137, 442 A.2d 694, 696 (1981). Furthermore, as the defendant notes in his brief, the failure to serve original process in the manner prescribed by Pa. R.C.P. 401, is a matter that can be raised by preliminary objection.

Preliminary objections may be filed by any party to any pleading and are limited to the following grounds: lack of jurisdiction over the subject matter of the action or the person of the defendant, improper venue or improper form or service of a writ of summons or a complaint. Pa. R.C.P. 1028(a)(1).

Original process shall be served within the Commonwealth within thirty days after the issuance of the writ or the filing of the complaint. Pa.R.C.P. No. 401(a). If service within the Commonwealth is not made within the time prescribed by subdivision (a) of this rule or outside the Commonwealth within the time prescribed by Rule 404, the prothonotary upon praecipe and upon presentation of the original process, shall continue its validity by reissuing the writ or reinstating the complaint, by writing thereon “reissued” in the case of a writ or “reinstated” in the case of a complaint. Pa.R.C.P. No, 401(b)(1). A writ may be reissued or a complaint reinstated at any time and any number of times. A new party defendant may be named in a reissued writ or a reinstated complaint. Pa.R.C.P. No. 401(b)(2).

In Lamp v. Heyman, the Pennsylvania Supreme Court held that a writ of summons shall remain effective to commence an action only if the plaintiff then refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion. Since the manner in which writs of summons are to be prepared and delivered to the sheriff for service is not covered by our rules and since there are differences among the judicial districts of Pennsylvania in the procedures followed in these matters, a plaintiff should comply with local practice as to the delivery of the writ to the sheriff for service. If under local practice it is the prothonotaiy who both prepares the writ and delivers it to the sheriff, the plaintiff shall have done all that is required of him when he files the praecipe for the writ; the commencement of the action shall not be affected by the failure of the writ to reach the sheriff’s office where the plaintiff is not responsible for that failure. Otherwise, the plaintiff shall be responsible for prompt delivery of the writ to the sheriff for service. Lamp v. Heyman, 469 Pa. 465, 478-79, 366 A.2d 882, 889 (1976).

Here, plaintiff admits that she was informed in January 2010 that the writ of summons had not been successfully served upon defendant Abuiso, and that there were no other attempts to reissue the writ or effect service upon defendant Abuiso until December 2014. In fact, there are no other attempts at service on the docket in this case after the initial attempt at time of filing for the writ of summons (December 1,2009) and filing and service of the complaint in December 2014. Plaintiff waited nearly five years to take further action on the docket after learning that service upon defendant Abuiso was unsuccessful. Five years is an unreasonable amount of time to wait to effectuate service upon defendant Abuiso and that lengthy delay has stalled the legal process which was set in motion by plaintiff. This accident occurred December 1,2007, which was seven (7) years before defendant Abuiso was served in this matter.

In plaintiff’s brief in opposition to defendant Abuiso’s preliminary objections, they cite McCreesh v. City of Philadelphia, a case from the Supreme Court of Pennsylvania. In that case, the plaintiff effectuated service upon the defendant by means of certified mail when the correct means of service was hand delivery by the sheriff or a competent adult. McCreesh v. City of Philadelphia, 585 Pa. 211, 222, 888 A.2d 664, 671 (2005). InMcCreesh, the Supreme Court of Pennsylvania held that “[n] either our cases nor our rules contemplate punishing a plaintiff for technical missteps where he has satisfied the purpose of the statute of limitations by supplying a defendant with actual notice.” Id. at 674. In that case, the plaintiff mailed a copy of the writ to the defendant’s Law Department just days prior to expiration of the statute of limitations period. Three months later, the plaintiff effected proper service on the defendant of a re-issued writ. The court in McCreesh specifically reversed the Commonwealth Court because the “appellant supplied the city with actual notice,” prior to the expiration of the statute of limitations. Id. The court intended to adopt the logic that it would only dismiss those “claims where plaintiffs have demonstrated an intent to stall the judicial machinery or where plaintiff’s failure to comply with the Rules of Civil Procedure has prejudiced defendant.” Id.

Unlike in McCreesh, plaintiffs failure to effectuate service upon defendant Abuiso was not because of a technical misstep. Further, there was no actual service or notice of a filing in this case. The plaintiff was informed that the address for defendant Abuiso was incorrect after filing the praecipe for writ of summons. It was never served nor sent to the defendant in an incorrect manner of service. There was not even a letter sent or phone call to the defendant that an action was being commenced on December 1, 2009. The issue in this case is not a technical misstep in the means of service by plaintiff but rather that no service had been effectuated at all because of an incorrect address. There was then a five year delay before plaintiff attempted service a second time. There was no other docket activity in that period of time. Plaintiff indicated in her brief that a diligent search for the defendant Abuiso was conducted, but there was no factual record of those attempts supplied and the docket shows no further attempts through the sheriff’s office. Thus, plaintiff did not satisfy the purpose of the statute of limitations by supplying defendant with actual notice and the five-year delay before a second attempt to serve defendant Abuiso constitutes an intent to stall the legal process which was set in motion. This is consistent with the holding in Englert v. Fazio Mechanical Services, Inc., 932 A.2d 122 (Pa. Super. 2007). Here, the facts of record show that plaintiff failed to establish that they made a good faith effort to accomplish service.

We do not find that dismissal of plaintiff’s action against defendant Abuiso is the draconian result the court in McCreesh wanted to avoid. This case evidences the risks a plaintiff takes when waiting until the last day of the statute of limitations period to issue a writ of summons, and hope that the defendant is able to be located and served in a timely manner. The defendant may have been difficult to find, but plaintiff placed no factual attempts on the record to explain a five-year delay between filing for the writ and obtaining service. Meanwhile, this suit has languished for over seven years after the accident. This is not a prompt resolution in the court system for the parties. We believe the plaintiff’s actions example, and at the very least, infer an intent to stall the judicial machinery. Therefore, we need not address the issue of prejudice to the defendant.

Conclusion

This court grants defendant Abuiso’s first preliminary objection that improper service of the writ of summons did not serve to toll the statute of limitations in this case. Plaintiff was informed in January 2010 that service had not been effectuated upon defendant Abuiso because of an incorrect address, and no further attempts were made until December 2014. This nearly five-year delay between the first and second attempt served to stall in its tracks the legal machinery which plaintiff had set in motion. The improper service in this case was not due to improper method and no actual service was ever timely effectuated upon defendant Abuiso. Therefore, plaintiff has failed to conform to the law or rule of court. Since we are granting defendant Abuiso’s first preliminary objection, the other preliminary objections are deemed moot.

ORDER

And now, this 16th day of April, 2015, upon consideration of the preliminary objections by defendant, Jason Abuiso, to plaintiffs complaint, defendant Abuiso’s preliminary objection based on improper service is granted. The complaint filed in this matter is dismissed as to defendant Abuiso.

      . We note the defendant Abuiso was served at an address in Effort, Pennsylvania. This is also in Monroe County, Pennsylvania, just as the initial address plaintiff tried service at in Tobyhanna, Pennsylvania.


text:
    Smith v. Sanofi Pasteur, Inc.

      C.P. of Monroe County,
    No. 407 CIVIL 2010

      Gregory J. Pascale, for plaintiff.

      Carl J. Greco, for defendant.
    April 28, 2015
   WILLIAMSON, J.,

This matter comes before us on a motion for summary judgment filed by Sanofi Pasteur, Inc. (hereafter “defendant”) on March 9, 2015. Patricia Smith (hereafter “plaintiff) filed an answer to defendant’s motion for summary judgment on April 2, 2015.

Background

Plaintiff filed the underlying complaint on June 28, 2010. At the time of the alleged incident, plaintiff was employed by ACM protocol as an aseptic cleaner at defendant’s facility in Swiftwater, Pennsylvania. On January 30, 2008, at approximately 12:20 am, plaintiff states she was working at the facility with co-worker Selena Segarra. Ms. Segarra was steering a wet-vac while plaintiff was operating the hose of the wet-vac while cleaning. Plaintiff alleges that the wheels of the wet-vac she was using came to an abrupt stop and caused plaintiff to twist and fall against a cement wall. Defendant owned and allowed use of the wet-vac.

Plaintiff alleges defendant was negligent in permitting rusted wheels on the wet-vac, disregarding complaints of employees, and failing to reasonably maintain equipment, and that this negligence caused plaintiff’s injuries. Plaintiff alleges she suffered serious and permanent injuries as a result of this incident, including but not limited to injuries to her nervous system, damage to ligaments, aggravation of pre-existing conditions, and mental anguish.

Argument

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).

Defendant argues that summary judgment should be granted because plaintiff cannot establish the element of proximate cause in support of her negligence claim. Defendant states that the deposition testimony of both plaintiff and Ms. Segarra indicates that the cause of plaintiff’s fall was the hose of the wet-vac coiling around plaintiff’s leg, and not any defect in the wet-vac wheels. Defendant further contends that, even if this court considers the alleged defect to be a factor in plaintiff’s fall, it cannot be a substantial factor where other numerous factors led to the incident.

In her deposition, plaintiff did state that the cause of her fall was the hose of the wet-vac coiling around her leg. Patricia Smith Dep., 17:17-18:3. However, plaintiff also explained that, “[Ms. Segarra] had to get the wet-vac out of my way. So she tried to move it, but it wouldn’t roll. So like I said, she tried to lift it and she was turning... That’s when the hose wrapped around my legs because she couldn’t move it.” Patricia Smith Dep., 27,16-25.

In the deposition of Ms. Segarra, Ms. Segarra stated that, “When I couldn’t move it, I tried to lift it, but as I’m in that process of trying to lift it, the long black hose is actually curling around [plaintiff’s] foot.” Selena Segarra Dep. ,17:19-23. Ms. Segarra went onto say that, “Now my job was to pull that back. These wheels were not working because of the rusted axle. Because I can’t move it back, [plaintiff] is stuck.” Selena Segarra Dep., 20, 20-22.

Based on the deposition testimony of both plaintiff and Ms. Segarra, they are contending that the defect in the wet-vac was the ultimate cause of plaintiff’s fall because the defect caused the hose to coil around plaintiff’s foot. The testimony also indicates the failure to be able to move the wet-vac due to the rusted wheels preventing the ability to free the plaintiff from the hose. Whether or not events transpired in this manner is a question for the jury. Whether or not the defect existed or was a substantial factor in causing plaintiff’s injury is also a question of fact for the jury to decide. At this time, there is a genuine issue of material fact as to whether plaintiff can establish the element of proximate cause in her claim.

Conclusion

Based on the deposition testimony of plaintiff and Ms. Segarra, there is a genuine issue of material fact as to whether plaintiff can establish the element of proximate cause in her claim. Both plaintiff and Ms. Segarra state that a defect with the wheels on the wet-vac was a cause of what ultimately led to plaintiff’s fall. Whether there was a defect with the wheels on the wet-vac, and how substantial of a factor that defect was in plaintiff’s fall, are issues of fact for the jury to decide. Therefore, summary judgment is not warranted at this time.

ORDER

And now, this 28th day of April, 2015, upon consideration of the motion for summary judgment filed by defendant, the motion for summary judgment is denied.


author: HERRON, J.,

text:
    Estate of Sipos

      C.P. of Philadelphia County,
    O.C. No. 526 DE of 2013

      Howard M. Soloman, for accountant.

      Steven Zelinger, for objectant.
    March 9, 2015
   HERRON, J.,

An issue raised in the administration of the estate of decedent Kenneth Sipos is whether he changed the beneficiary of his IRA retirement account by bequeathing that account to his brother in a will executed two years after decedent had complied with the terms of the policy by designating William Horton as the beneficiary on the IRA application form. Based on the facts presented, decedent failed to take all — or any — reasonable efforts to comply with the policy requirements. As a consequence, the beneficiary of the IRA account remains William Horton, the person named on the IRA beneficiary designation/application form.

Background

Kenneth Sipos (“Kenneth”) died on July 28, 2012. In his May 26, 2011 will, he named his brother, David Sipos, executor. In April 2013, William Horton, a beneficiary under Kenneth’s will, filed a petition seeking an accounting by the executor. In response, David Sipos filed an account on January 21, 2014 covering the period July 28, 2012 through December 31, 2013. William Horton then filed objections, raising three issues. First, he challenged the inclusion of a prudential Savings Bank IRA retirement account as a probate asset since the decedent had designated William Horton as the beneficiary on the IRA beneficiary designation form on file with the IRA custodian. Second, Mr. Horton challenged the claim of Russell Force seeking compensation from Kenneth’s estate for a loan totaling $16,360.55. Finally, William Horton objected to the proposed sale of real property located at 119 N. 21st Street that had been specifically devised to him in Kenneth’s will. The parties submitted memoranda on the legal issues raised by the objections. An evidentiary hearing was subsequently held on November 12, 2014 on the remaining factual issues.

At the hearing, executor David Sipos provided some general background information about his brother. Kenneth had died at the age of 72. He had worked for the City of Philadelphia in the real estate department between 37 to 39 years until he retired at the age of 70. Kenneth had never married and had no children, but years ago he had had a life partner, Russell Force. Their relationship lasted over 20 years but at the time of Kenneth’s death they were just friends. Beyond their personal relationship, Russell Force and Kenneth had a business relationship as owners of a restaurant.

Beginning in the summer of 2005, Kenneth moved in with William Horton. Mr. Horton testified that he had been Kenneth’s caretaker and that Kenneth lived with him for 6 to 7 years until a few weeks before his death. In fact, Kenneth himself had characterized Mr. Horton as his caretaker to his physicians. Kenneth’s health was fragile; he had been diagnosed with stage 4 melanoma prior to coming to live with Mr. Horton. According to Mr. Horton, he cleaned, cooked and provided. He made sure Kenneth went to his doctors. He was there when Kenneth needed help. There were times, however, when Mr. Horton was unable to care for Kenneth so that he had to go into a healthcare facility such as Watermark or Atria. Russell Force testified that he loaned Kenneth money to pay for his stays at Watermark after surgery. In fact, he had Watermark send bills directly to him. He charged no interest for this loan because he and Kenneth had an understanding that these loans would be repaid. Mr. Force made it clear that he was not in a financial position to give this money away. When asked about whether these payments by Russell Force had been gifts instead of loans, William Horton candidly acknowledged: “I have no way to know why Russell wrote checks.”

Despite Kenneth’s physical ailments, chemotherapy and repeated surgeries, Mr. Horton testified that Kenneth’s mental health in the final year of his life between May 2011 and July 2012 was “fine.” Kenneth kept busy, volunteering for various activities such as the Action AIDS thrift shop. He paid his own bills. He wrote checks. He went to the bank and engaged in financial transactions.

Nearly two and a half years before his death, Kenneth Sipos executed a Prudential Savings Bank IRA form on October 14, 2009 that designated William Horton as primary beneficiary. From the testimony, it became clear that Kenneth shared highly personal financial details with William Horton. Kenneth showed Mr. Horton the wills he executed in 2009 and 2011. Mr. Horton therefore knew that he was to inherit Kenneth’s real property. He also was aware that Kenneth in both his 2009 and 2011 wills had designated his brother, David, to receive the Prudential IRA. Finally, Mr. Horton knew that he had been designated as the beneficiary of this Prudential IRA in the beneficiary designation form; in fact, he had a copy of that document.

A little more than a week before his death, Kenneth went down to Florida to stay with his brother, David. Mr. Horton accompanied him on this final trip. About a month after Kenneth’s death, Mr. Horton cashed in the Prudential IRA policy and paid taxes on it. David Sipos subsequently contacted the IRA plan administrator, who told him that William Horton was the designated beneficiary of the IRA and had already claimed the funds. In a letter mailed September 12, 2012, David Sipos raised the following general question about Kenneth’s accounts with the IRA Accounts department of Prudential Savings Bank:

This is a request by the estate of Kenneth A. Sipos to Prudential Savings Bank to provide paperwork showing monetary value of all accounts as of July 12, 2012 and as of date of distribution to beneficiary (prior to actual distribution) so that I may complete the Pennsylvania inheritance tax return.

Donna Schaefer responded for prudential by listing the individual retirement accounts “registered in the name of Kenneth A. Sipos in trust for William Horton.” She noted that the “beneficiary would have the Inheritance Tax responsibility for the IRA accounts and would not be included in the estate.” Significantly, David’s letter had made no contrary claim to the IRA accounts nor did it attach a copy of Kenneth Sipos’ will.

Legal Analysis

I. The Beneficiary of the Prudential IRA was not changed by Kenneth Sipos’ 2011 Will based on the Facts and Relevant Precedent

Under long-standing Pennsylvania precedent, as a matter of general principle a person who seeks to change the beneficiary of an insurance policy must follow the procedures set forth in the policy. Sproat v. Travelers’ Ins. Co., 289 Pa. 351, 354, 137 A. 621, 622 (Pa. 1927). There is, however, an exception to this general rule “where the policy holder has made every reasonable effort to effect a change of beneficiary, it will be given effect.” The motivating concern is to give effect to the insured’s intent to change a beneficiary where “he has done all he could to comply with the terms of the policy.” Id. Applying this broad principle — and its exceptions — over the years has created a rich tapestry of nuanced precedent. In Sproat, for instance, the Pennsylvania Supreme Court ruled that the insured who requested a change in beneficiary form but neither filled it out nor returned it to the insurance company had not done all that he reasonably could have to change the beneficiary during the 6 month period between his request for a change of beneficiary form and his death.

In other cases, however, Pennsylvania courts have found valid changes in beneficiaries where the insured made reasonable efforts to change a beneficiary that diverged from some of the formal policy requirements for doing so. A seriously ill insured changed the beneficiary of her life insurance policy where she executed a change of beneficiary form and had it delivered to the insurance company but failed to have the policy likewise delivered as required under the change of beneficiary terms. In finding a successful change in beneficiary nonetheless, the court concluded that the insurance company could waive its own formalistic requirements for changing a beneficiary. Riley v. Wirth, 313 Pa. 362, 169 A.139 (Pa. 1933). See also Ruggieri v. Griffiths, 315 Pa. 455, 173 A. 396 (Pa. 1934)(beneficiary was changed where insured dictated a memorandum to insurance agent, signed an official change of beneficiary form to which the new beneficiaries named in the memorandum were added after her death). A change in beneficiary has also been recognized where the insured executed a change in beneficiary form that was lost by officials responsible for keeping track of it. Dale v. Philadelphia Bd. of Pensions and Retirement, 702 A.2d 1160 (Pa. Cmwlth. 1997, app. denied, 556 Pa. 696,727 A.2d 1123 (Pa. 1998). Finally, a change in beneficiary was recognized where the insured twice called his broker to obtain a change of beneficiary form but failed to receive one prior to his death. In this case, the insured had called his broker the second time while hospitalized with terminal cancer only days before his death. Under these circumstances, the court found he had taken all reasonable steps to substantially comply with the terms of the policy for changing his beneficiary. Estate of Golas, 751 A.2d 229, 751 A.2d 229 (Pa. Super. 2000).

The precise issue of whether the beneficiary of a retirement IRA account may be changed by a will raises discrete, and more subtle, questions. In a case more directly on point, an insured failed to change the beneficiary of his life insurance policy by his will. Carruthers v. $21,000, 290 Pa. Super. 54, 434 A.2d 125 (Pa. Super. 1981). Both the trial and appellate court in Carruthers concluded that the beneficiaries of a life insurance policy were not changed by a will. The court did not, however, adopt a broad rationale that a will could never suffice to change beneficiaries designated according to the terms of the insurance policy. Instead, the Carruthers court adhered to prior precedent and examined the facts to determine if the decedent had made a reasonable effort to comply with the policy provisions. The insured in Carruthers had changed the beneficiaries of his life insurance policy twice by complying completely with the terms of the policy. After making these changes, he executed a holographic will to leave his insurance to his brother James. Both the trial court and the appellate court held that on these facts the decedent had not changed the beneficiary of his insurance policy with his will. Although the decedent had lived three and 1/2 months after executing his will, the insurer received no notice of this will until after the insured’s death. While noting that a change of beneficiary would be given effect even if received after the insured’s death if the insured had made every reasonable attempt to comply with the policy, no such reasonable effort was found in Carruthers.

The issue of whether the beneficiary of annuities can be changed by a will was addressed by a split Pennsylvania Supreme Court in Alkhafaji v. TIAA CREF, 620 Pa. 530, 69 A.3d 219 (Pa. 2013). The effect of this split, according to the court, was to affirm the ruling of the Superior Court which had concluded that the attempted change in beneficiary had not been achieved. The exact parameter of this ruling is not clear, unfortunately, because the Superior Court opinion was unpublished, and the various Supreme Court justices did not agree as to precise issue addressed by the Superior Court. While one group of justices characterized the Superior Court as holding that a will could never effect a change in beneficiary of retirement annuities, a different group of justices concluded the Superior Court had addressed the much narrower issue of whether on the facts before it, the insured had substantially complied with the terms of the policy in seeking to change the beneficiary.

The analysis of Carruthers therefore sets out the clearest standard for this case. The terms of the beneficiary designation for the Prudential IRA account at issue are set forth in the accountant’s own exhibit, Ex A-4. The IRA application dated October 14, 2009 lists William Horton as the primary beneficiary. The provision for beneficiary designation states:

BENEFICIARY DESIGNATION
Designate beneficiaries below. If the primary or contingent status is not indicated, the individual or entity will be considered a Primary beneficiary. After your death, your IRA assets will be distributed in equal shares (unless indicated otherwise) to the Primary beneficiaries who survive you. If no primary beneficiaries are living when you die, your IRA assets will be distributed in equal shares (unless otherwise indicated) to the contingent beneficiaries who survive you. You may revoke or change the beneficiary designation at any time by completing a new beneficiary designation form and providing it to the trustee/custodian.

Ex. A-4 (emphasis added).

No evidence was presented that Kenneth Sipos ever submitted a change of beneficiary form to prudential prior to his death. According to William Horton’s unrebutted testimony, Kenneth Sipos was mentally and physically fine in the year preceding his death. He managed his finances and was able to go out and about on his own. Despite this, Kenneth never contacted prudential to change the beneficiary designation he made in October 2009. After Kenneth’s death, David Sipos, as executor, did not make a demand for the assets under the Prudential IRA by presenting a copy of the will naming him as the beneficiary of that IRA to Prudential. Instead, he sent a very judicious letter mailed September 12, 2012 that politely inquired about the monetary value of the Prudential accounts. The representative for Prudential replied by letter dated September 25, 2012 that the individual retirement accounts “registered in the name of Kenneth Sipos in trust for William Horton” had values of $3,211.07, $5,844.57, $2,760.93 and $99,275.26. In fact, by that point William Horton had already claimed those assets, ultimately paying taxes on them. The procedural posture of this case also weighs against any finding that the IRA beneficiary had been changed. This issue arose only after William Horton sought an accounting by David Sipos. It was through Mr. Horton’s objections—and not an active pursuit by the executor — that the issue of the IRA beneficiary arose. Based on these facts, the beneficiary of Kenneth Sipos’s Prudential IRA was not changed by his will as no reasonable effort by Kenneth to comply with the terms of the policy was demonstrated.

II. The Executor Properly Honored the Repayment of the Loan Russell Force made to the Decedent Prior to His Death

As a second objection, William Horton argues that the executor erred in admitting the claim of Russell Force in the amount of $16,360.55. As a general rule, when a fiduciary claims credit for a disbursement from an estate, the burden is on him to justify it with vouchers or other relevant proof. His mere testimony alone will not suffice. In re Strickler’s Estate, 354 Pa. 276, 277, 47 A.2d 134, 135 (Pa. 1946). In this case, the accountant and the claimant, Russell Force, have carefully documented his claim with copies of checks spanning the years from June 2006 through June 2011. See Ex. A-5. Two checks were made out to Kenneth Sipos; seven checks were made out to the Watermark where Kenneth had resided for rehabilitation; one check was to Thomas Jefferson Hospital and another to Water Revenue Board. This documentary evidence was further buttressed by Russell Force’s highly credible testimony that he had made these checks as loans to Kenneth for his care and rehabilitation after surgery. More specifically, Mr. Force testified that he had the facility Watermark send the bills to him for Kenneth’s care. He stated convincingly that he did not ask for a promissory note because he trusted Kenneth. Nonetheless, it was clear he expected repayment because he was not in a financial position where he could just give money away.

Based on this convincing record, the burden shifted to Mr. Horton to show either that there had not been a loan or that these payments had been a gift. Mr. Horton cites Hornyak v. Sell, 427 Pa. Super. 356, 629 A.2d 138 (Pa. Super. 1993) for the proposition that “[wjhen money is given from one party to another it is presumed to be a gift.” That presumption recognized generally in Hornyak, however, arises where a parent furnishes the money to a child for the purchase of a house. Even in Hornyak it was not clear that such a presumption arose where the purchase money was supplied to a son-in-law. In the present case, in contrast, there was no familial relationship between Kenneth and Russell Force and at the time of the payments their relationship was that of good friends only.

In cases involving inter vivos gifts, the burden is initially on an alleged donee to prove a gift inter vivos by clear and convincing evidence. Once a prima facie case for a gift is set forth, a “a presumption of validity arises, and the burden shifts to the contestant to rebut this presumption with clear, precise and convincing evidence.” Hera v. McCormick, 425 Pa. Super. 432, 439, 625 A.2d 682, 686 (Pa. Super. 1993). In this case, the alleged donee — Kenneth — is dead. The assertion of a gift is by the objector, William Horton. In his testimony, he conceded that he had no basis for asserting that Russell Force had given Kenneth the $16,360.50 as a gift. On the contrary, when asked “what makes you say that the payments by Russell Force were gifts and not loans,” Mr. Horton candidly admitted: “I have no way to know why Russell wrote checks.” Even if the presumption of a valid gift was established, it was rebutted by the documentary evidence presented by the accountant as well as by Mr. Force’s highly credible testimony. For all these reasons, the accountant properly admitted Mr. Force’s claim.

III. The Accountant May Sell the Real Property located at 119 N. 21st Street after Filing an Amended Account Outlining the Estate’s Presently Outstanding Expenses

The accountant states that the real property located at 119 N. 21st Street, Philadelphia, specifically devised to William Horton, is the primary asset of the Sipos estate and that it must be sold to pay the decedent’s debts and the estate administration expenses. William Horton opposes this sale as premature. He suggests that the full extent of the debts and administrative expenses are still undetermined. Although he concedes that if there are legitimate estate debts remaining, the home may need to be sold, he also expressed a desire to retain it if possible.

During the hearing, David Sipos outlined the remaining debts of the estate. He testified that he had loaned his personal money to pay estate debts and that he expected repayment. The exact amount of this debt was still undetermined as of the hearing. Counsel for the accountant agreed that an amended account would need to be filed. In light of this, the accountant shall file an amended account outlining the present outstanding debts of the estate. The objectant has also asserted that the value of the property is greater than estimated by the executor. Upon review of that amended account, and any objections to it, a determination will be made as to whether the real property devised to Mr. Horton must be sold. In the interim, the parties may be able to negotiate an agreement as to the necessity for selling the property.

According to the account Pennsylvania Transfer Inheritance Tax and Estate Tax was paid in the amount of $19,188.96 on April 12, 2013 and in the amount of $2,737.04 on June 24, 2013.

The account shows a balance of principal before distribution of $216,383.83 and a balance of income before distribution of $0 for a total of $216,383.83. In the rider to the statement of proposed distribution, the accountant requests an order directing that the proceeds of the decedent’s prudential IRA be paid over to David Sipos, which is denied for the reasons set forth in the audit memorandum. In addition, his request that this court order the sale of the real estate located at 119 N. 21st Street, Philadelphia, to pay decedent’s unpaid debts and administrative debts is deferred pending the filing of an amended account within 20 days that sets forth the outstanding debts and expenses more precisely.

      . 11/12/14 N.T. at 6 (David Sipos).

      ÑÍ/2/14 N.T. at 17 (David Sipos); 11/12/14 N.T. at 45-47 (Force).

      . 11/12/14 N.T. at 61 (Horton).

      . 11/12/14 NT. at 60-61 (Horton).

      . 11/12/14 N.T. at 68 (Horton).

      . 1/12/14 N.T. at 48-51 (Force).

      . 11/12/14 N.Y. at 70-71 (Horton).

      Ñ1/12/14 N.T. at 62-63 (Horton).

        S&0 F,y A-4

      . 11/12/14 N.T. at 73-76 (Horton).

      . 11/12/14 N.T. at 74-75 (Horton).

      . 11/12/14 N.T. at 76 (Horton).

      . 11/12/14 N.T. at 72 (Horton).

      . 11/12/14 N.T. at 59 (Horton).

      . 11/12/14 N.T. at 19-20 (David Sipos).

      . ex. A-4.

      . Ex.A-4.

        . Alkhafaji v. TIAA-CREF, 620 Pa. 530, 69 A.3d219 (Pa.2013(Justice Todd)(Justice Baer)(suggesting that wills could be used to change beneficiaries of a retirement annuity under the facts of this case).

      . Alkhafaji v. TIAA-CREF, 620 Pa. 530, 69 A.3d 219 (Pa. 2013) (Justice Saylor)(Justice Castille)(Justice Eakin)(concluding the insured had not substantially complied with the terms of his policy). Justice Cas-tille and Eakin left open the question of whether the will could have changed the beneficiaries if it had been sent to the insurer prior to the insured’s death — but that had not occurred.

      A1/24/14 N.T. at 62-63 (Horton).

      . As an aside, because of the inherently different nature of an insurance contract and a testamentary will a more definitive ruling that a will cannot change the designation of a beneficiary of an IRA would avoid the potential mischief in analyzing surrounding facts to determine if the decedent made a reasonable effort to comply with the terms of the contract. Section 6108 of the PEF code clearly states that the designation of beneficiaries of insurance or employee death benefits is not testamentary. To entertain the possibility that such beneficiaries could be changed solely by a will could create serious confusion.

      . 01/12/14 N.T. at 48-49 (Force).

      . 4/30/14 Horton Memo of Law at 8.

      . 7Í1/12/14N.T. at 70-71 (Horton).

      . 4/30/14 Horton Memorandum of Law at 10.

      . See 11/12/14 N.T. at 37-38 (Soloman). After hearing the testimony by David Sipos concerning the estate’s outstanding debts and expenses, questions arose as to the exact amount at issue:
      The Court: After the account was filed additional expenses were paid?
      Mr. Soloman: Correct.
      The Court: And he expects to be repaid those expenses?
      Mr. Soloman: Correct.
      The Court: And I haven’t a clue what they are.
      Mr. Soloman: Nor do 1 Your Honor, they are accumulating as we speak for every minute I am sitting her.
      The Court: Well, do you expect to file an amended account?
      Mr. Soloman: I expect at some point we will have to file an amended account, correct. It all hinges, as you know, Your Honor, upon the sale of the real estate. 11/12/14 N.T. at 37-38.