author: ASHWORTH, J.,

text:
    Brubacher Excavating Inc. v. Commerce Bank/Harrisburg N.A.

      Jonathan H. Rudd, for plaintiff.

      Thomas O. Williams and Matthew E. Hamlin, for defendant.
    December 22, 2008
   ASHWORTH, J.,

This matter is before the court on cross motions for summary judgment. For the reasons set forth below, summary judgment will be entered in favor of Brubacher Excavating Inc., and against Commerce Bank/Harrisburg N.A.

I. BACKGROUND

The facts of this case are undisputed. This action arises out of the construction of a branch bank of Commerce Bank/Harrisburg N.A. located at 1461 Manheim Pike, Lancaster, Pennsylvania (the property). Manheim Equities is the owner-in-fee of the property, and Commerce Bank is the tenant. Manheim Equities, as lessor, assigned its interest in the lease to Liberty Bank.

On September 6,2006, Commerce Bank entered into a written contract with Premier Construction Inc. to construct the branch bank. Prior to permission or authority being given by Manheim Equities or Commerce Bank to Premier for the commencement of work on the project, Commerce Bank caused to be filed in the prothonotary’s office of the Court of Common Pleas of Lancaster County on October 3, 2006, a stipulation against liens which was dated September 29, 2006. The stipulation against liens was filed to docket no. CI-06-09679 and was in conformance with all requirements of the Mechanics’ Lien Law then in effect. Accordingly, as of October 3, 2006, this stipulation could have been reviewed by any and all subcontractors and sub-subcontractors who were to perform work on the property.

On November 3,2006, Premier entered into a subcontract with McElroy Contractors LLC, whereby McElroy was to perform certain site work at the property for an estimated $116,815. McElroy in turn subcontracted a portion of its work to Brubacher Excavating Inc., on or about April 27, 2007, to perform asphalt paving on the project at a bid price of $45,689.

Brubacher completed asphalt paving on the property on or about May 21,2007, and invoiced McElroy in the amount of $42,976.45, which represented the cost of labor and materials. McElroy has not paid any amount to Brubacher for its work on the project. McElroy was required to pay Brubacher within 30 days of its invoice dated May 21, 2007, or by June 20, 2007. Premier has paid McElroy for all amounts due and owing under its subcontract with McElroy except for $20,224.31 that it is still retaining from McElroy.

On or about August 27,2007, Brubacher notified Commerce Bank and Premier in writing that it intended to file a mechanics’ lien on the project. Brubacher filed its mechanics’ lien claim on October 19, 2007, and subsequently filed a complaint in action upon the mechanics’ lien claim onNovember 14,2007. Commerce Bank filed preliminary objections on December 4,2007, which were overruled by order of this court dated February 4,2008. Commerce Bank then filed an answer with new matter on February 21, 2008, to which Brubacher filed a reply on February 26, 2008.

A petition to discharge the mechanics’ lien on deposit of security pursuant to 49 P.S. §1510 was filed by Commerce Bank on April 14, 2008. A rule was entered upon Brubacher on April 28, 2008, to show cause why Commerce Bank was not entitled to the relief requested in its petition. Ultimately, an order was entered on July 10,2008, granting the petition to discharge and directing the prothonotary, upon defendant’s depositing of the surety bond attached to the petition as exhibit “A”, to discharge plaintiff’s mechanics’ lien claim filed in the office of the prothonotary. The bond to discharge existing lien was filed on July 11, 2008

Meanwhile, the case was certified as ready for trial and a pretrial conference was held on June 5,2008, during which the parties agreed that a trial was unnecessary and that this matter could be disposed of on cross-motions for summary judgment. The parties further agreed to enter into stipulations of fact prior to the filing of the cross-motions for summary judgment by the parties. Commerce Bank’s motion and brief in support thereof were filed on July 25, 2008. Brubacher filed its cross-motion for summary judgment and brief in opposition to Commerce Bank’s motion for summary judgment and in support of its motion for summary judgment on September 5, 2008. Reply briefs were filed by Commerce Bank and Brubacher on October 2, 2008, and October 8, 2008, respectively. After fully considering all of the evidence and arguments presented, this matter is now ready for final resolution.

II. DISCUSSION

Initially, Brubacher objects to this court’s consideration of Commerce Bank’s motion for summary judgment based upon the same legal issues previously disposed of by the court in its decision overruling Commerce Bank’s preliminary objections. On December 4, 2007, Commerce Bank filed preliminary objections challenging the enforceability of Brubacher’s mechanics’ lien claim based on, inter alia, the existence of a stipulation against liens that was filed on October 3, 2006. The parties fully briefed the legal issues associated with Commerce Bank’s arguments and this court overruled the preliminary objections by order dated February 4, 2008. There were no factual issues for the court to resolve in determining whether Brubacher’s claim was barred by some “exemption or immunity of the property from lien, or for lack of conformity with [the Mechanics’ Lien Law].” See 49 P.S. §1505. Rather, the issues raised by Commerce Bank were purely legal in nature. Thus, Brubacher contends that Commerce Bank is now barred from re-litigating in this motion for summary judgment any of the issues it raised in its preliminary objections.

Commerce Bank notes in its motion for summary judgment that it requested oral argument on the preliminary objections and that the court rendered its decision without giving Commerce Bank the benefit of arguing its position to the court. Rule 211 of the Pennsylvania Rules of Civil Procedure states that “[a]ny party or the party’s attorney shall have the right to argue any motion____” Pa.R.C.P. 211. In the January 15,2008, praecipe to assign the preliminary objections for disposition, Commerce Bank did include a request for oral argument pursuant to Lancaster County Local Rule of Civil Procedure no. 1028(c). Candidly, this court must acknowledge that it did not take notice of this request for oral argument and, therefore, proceeded to rule on the objections solely upon the briefs filed by the parties. Had the court been aware of Commerce Bank’s request for oral argument, it would have been scheduled. Nonetheless, Commerce Bank failed to seek reconsideration of this court’s order overruling its preliminary objections without benefit of oral argument or an opinion.

Rather, it appears that it was Commerce Bank’s intention to file a motion for summary judgment based on the stipulation against liens. (See Commerce Bank’s objection to Brubacher’s praecipe requesting a pretrial conference at 6.) Having now filed that motion, curiously, Commerce Bank has not requested oral argument. In any event, given this court’s failure to hear oral argument on the preliminary objections of Commerce Bank and so as to eliminate any possibility of prejudice to the parties, we will not bar Commerce Bank from rearguing its prior legal position in a motion for summary judgment.

“In evaluating [a motion for summary judgment,] we focus on the legal standard articulated in the summary judgment rule, Pennsylvania Rule of Civil Procedure 1035.2:

“The rule states that where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. Where the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Failure of a nonmoving party to adduce sufficient evidence on an issue essential to his case and on which it bears the burden of proof. . . establishes the entitlement of the moving party to judgment as a matter of law. Lastly, we will view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Dahl v. Ameriquest Mortgage Company, 954 A.2d 588, 593 (Pa. Super. 2008) (quoting Murphy v. Duquesne University of the Holy Ghost, 565 Pa. 571, 590, 777 A.2d 418, 429 (2001). (citations and quotation marks omitted)

In the instant case, the cross-motions for summary judgment present questions of statutory interpretation of the Pennsylvania Mechanics’ Lien Law. Therefore, we begin with the Statutory Construction Act, 1 Pa.C.S. §1501 et seq., and the specific provisions which will guide our discussion:

“Under the Act, it is fundamental that ‘ [t]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly [,]’ and that ‘[ejvery statute shall be construed, if possible, to give effect to all its provisions.’ 1 Pa.C.S. §1921(a). In this regard, the Act instructs that ‘ [wjhen 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.’ 1 Pa.C.S. §1921(b). When, however, the words of the statute are not explicit, the General Assembly’s intent is to be ascertained by considering matters other than statutory language, like the occasion and necessity for the statute; the circumstances of its enactment; the object it seeks to attain; the mischief to be remedied; former laws; consequences of a particular interpretation; contemporaneous legislative history; and legislative and administrative interpretations. 1 Pa.C.S. § 1921(c).
“The Act provides that ‘[wjords and phrases shall be construed according to the rules of grammar and according to their common and approved usage’; and that ‘technical words and phrases and such others as have acquired a peculiar and appropriate meaning... shall be construed according to such peculiar and appropriate meaning or definition.’ 1 Pa.C.S. §1903(a). Further, if the General Assembly defines words that are used in a statute, those definitions are binding----The Act allows a court to presume that the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable; that the General Assembly intends the entire statute to be certain and effective, and intends to favor the public interest as against any private interest. 1 Pa.C.S. §1922(1), (2), (5). Moreover, the Act sets forth rules for a court to follow when provisions in or among statutes are in conflict and cannot be reconciled. 1 Pa.C.S. §§1933-1936.” Pennsylvania Associated Builders and Contractors Inc. v. Commonwealth, Department of General Services, 593 Pa. 580, 591, 932 A.2d 1271, 1278 (2007). (citation omitted) See also, Dahl, 954 A.2d at 593-94.

We now consider whether plaintiff Brubacher has established a cause of action against Commerce Bank under the Mechanics’ Lien Law. 49 P.S. §§1101-1902. This law provides the right to lien a property for the payment of all debts due by an owner to the contractor or by the contractor to a subcontractor for labor or materials. 49 P.S. §1301. The statute historically provided contractors and subcontractors with a statutory method to secure payment for their work or materials. In order for a contractor or subcontractor to file a lien against an owner’s property under the statute, the claim had to be filed with a local prothonotary within four months of the work’s completion. Properly filed mechanics’ liens would then become superior in priority to previously filed liens on the property, including mortgage liens.

As a protective measure for other lien holders, the statute provided that contractors could, prior to the commencement of work, waive the right to such subsequent liens by entering into a written agreement with the property owner. This “waiver of liens” or “stipulation against liens” was also binding on subcontractors. Lenders, owners and title insurers came to require the execution and filing of such lien waivers prior to the commencement of construction projects, in order to insure that contractors’ liens would not be superior to prior filed liens.

The Mechanics’ Lien Law of 1963 was amended by General Assembly House Bill 1637, also known as Act 52, which was signed into law by Governor Edward G. Rendell on June 29, 2006. The amendments to the Mechanics’ Lien Law became effective approximately six months later on January 1, 2007. These amendments significantly changed Pennsylvania law on the use of stipulations against liens. Prior to January 1, 2007, the Mechanics’ Lien Law allowed owners and contractors to waive a subcontractor’s right to file a mechanics’ lien by simply filing a stipulation against liens with the prothonotary prior to the subcontractor performing any work. See 49 P.S. §1401. The Pennsylvania Legislature amended the law to declare that such waiver of lien rights are against public policy, unlawful and void. Specifically, the Mechanics’ Lien Law was amended to provide that: “[ejxcept as provided in subsection (a)(2), a waiver by a subcontractor of lien rights is against public policy, unlawful and void, unless given in consideration for payment for the work, services, materials or equipment provided and only to the extent that such payment is actually received, or unless the contractor has posted a bond guaranteeing payment for labor and materials provided by subcontractor.” 49 P.S. § 1401(b)(2). (emphasis added)

Thus, waivers of liens entered into prior to the commencement of construction are now prohibited by Act 52. The new terms are the same for the prohibition against waivers of liens by subcontractors “unless the contractor has posted a bond guaranteeing payment for labor and materials provided by subcontractors.”

More significantly, these amendments provide sub-subcontractors who enter into contracts after January 1, 2007 with the right to file mechanics’ liens, a right that did not exist prior to the amendments to the Mechanics’ Lien Law. The amendments state in section 4 of Act 52 that “[t]he amendment or addition of sections 201(14), 401 and 402 of the act shall apply to contracts entered into on or after the effective date of this section.” (emphasis added) Section 5 states: “This act shall take effect January 1, 2007.” See 49 P.S. §1401 (Historical and statutory notes). Both parties can agree that the amendments to the Mechanics’ Lien Law at issue in this case must be given prospective effect only. See 1 Pa.C.S. §1926 (“no statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly.”); see also, Budnick v. Budnick, 419 Pa. Super. 172, 177, 615 A.2d 80, 83 (1992) (“[I]n the absence of clear language to the contrary, statutes must be construed to operate prospectively only.”). But the parties argue this interpretation to different conclusions.

Commerce Bank contends that the stipulation against liens, which predates the effective date of the amendments to the Mechanics’ Lien Law, waives the lien rights of every subcontractor or sub-subcontractor on the project, regardless of when their contract was signed. To conclude otherwise, claims Commerce Bank, would be to grant a sub-subcontractor such as Brubacher a greater right to lien than its upstream subcontractor would otherwise have. Brubacher, on the other hand, argues that this was precisely the clear intention of the legislature and that it does, indeed, have greater rights to file a mechanics’ lien claim than McElroy since Brubacher entered into its sub-subcontract after the effective date of the amendments, January 1,2007, and McElroy entered into its subcontract prior to January 1, 2007.

The statute expressly states that the amendments “shall apply to contracts entered into on or after the effective date of this section.” (See Act 52, §4.) In applying the Statutory Construction Act rules, it is clear that this language is “clear and free from all ambiguity,” in that it applies to all contracts entered into on or after January 1,2007. Commerce Bank would have this court interpret this language to mean only those contracts between the owner and contractor. The legislature did not limit the type of “contract” covered by section 4.

Had the legislature intended to limit the amendments to contracts entered into between the contractor and owner after January 1, 2007, it could easily have stated such. Of significance is that the legislature made the distinction between all contracts and contracts between the contractor and owner in section 1401(A)(1), where it specifically references the “contract price between the owner and the contractor.” In making this distinction, the legislature recognized that there are different contracts on a construction project, and made clear that the $1,000,000 threshold applied to contracts between the contractor and owner only. The legislature chose not to include such a restriction within section 1401(b)(1) or section 1401(b)(2), and provided clear and unambiguous language that the amendments apply to any contract entered on or after January 1, 2007.

Brubacher did not sign a contract until April 27,2007, almost four months after the effective date of the amendments to the Mechanics’ Lien Law. As a subcontractor to a subcontractor, Brubacher had every right to expect that the amendments to the Mechanics’ Lien Law applied to its contract, and that there would be no ability by the owner to avoid a lien should McElroy fail to pay Brubacher. Recognizing the injustice and inequity of allowing an owner and contractor to waive a subcontractor’s right to file a lien claim before it even entered into a subcontract or began to perform any work, the Pennsylvania Legislature amended the Mechanics’ Lien Law to declare that such waiver of lien rights is against pub-lie policy, unlawful and void, and provided a clear date when such rights ended, i.e., for all contracts entered into on or after January 1, 2007.

It is important to emphasize that prior to January 1, 2007, a sub-subcontractor in Brubacher’s position had no right to file a mechanics’ lien. The amendments to the Mechanics’ Lien Law expanded the definition of “subcontractor” to include a person who enters into a contract with a subcontractor who is in direct privity with the contractor, in other words, a sub-subcontractor or second-tier subcontractor. 49 P.S. §1201(5). Brubacher executed a contract with a subcontractor in direct privity of a contract with a contractor since McElroy had contracted directly with Premier. As such, pursuant to this new definition of “subcontractor,” Brubacher had the right to file a lien against Commerce Bank’s property rights, where no such right existed before January 1, 2007.

Despite that a sub-subcontractor such as Brubacher had no right to assert a mechanics’ lien prior to January 1, 2007, Commerce Bank claims that it effectively waived this non-existent right by the filing of the stipulation against liens. Commerce Bank could not waive a right that did not yet exist. A condition to the waiver of a right is that the right actually exist. There was no right for a sub-subcontractor to file a lien at the time the stipulation against liens was filed on October 3, 2006. As such, the stipulation against liens could not waive a right that did not even come into existence as a matter of statutory law until three months after the stipulation against liens was filed.

In an attempt to avoid the clear language of the amendments granting sub-subcontractors new rights as of Januaiy 1,2007, Commerce Bank cites to cases that stand for the proposition that a subcontractor can have no greater lien rights than the contractor. See for example, Shannon v. Philadelphia German Protestant Home for the Aged, 16 Pa. Super. 250 (1900). As even this case makes clear, however, the legislature has the power to grant new statutory rights such that a sub-subcontractor might have a greater right to file a claim than a subcontractor or contractor where the sub-subcontractor executed a sub-subcontract after the effective date of amendments to the Mechanics’ Lien Law. Brubacher’s right to file a mechanics’ lien claim is not based on some general rule of law regarding derivation of rights from its subcontractor or contractor, but on express rights granted by the legislature effective as for sub-subcontracts executed after January 1, 2007.

Accordingly, Brubacher is entitled to summary judgment as Commerce Bank’s stipulation against liens is deemed void, unlawful and against public policy as to Brubacher’s claim as a sub-subcontractor who entered into its contract with McElroy after the effective date of the amendments to the Mechanics’ Lien Law.

Assuming, arguendo, that the stipulation against liens does apply to sub-subcontracts signed after January 1, 2007, Brubacher argues, alternatively, that the stipulation against liens does not even cover its work on the project. Specifically, the stipulation in this case refers only to materials and labor “necessary for cast stone work at the leased premises.” (See stipulation against liens, attached to Commerce Bank’s motion as exhibit “B”.) This limiting language must be strictly interpreted. In Shannon, supra, the Superior Court discussed the impact of limiting language in a no-lien agreement between the owner and contractor: “A covenant limited to any class of work or material, as bricks or brickwork, would be effective only as to that particular class. A covenant in any manner limited could not, in the face of this act, be enlarged to embrace matters not within the limitation.” 16 Pa. Super. at *2. This pronouncement by the Superior Court clearly directs that limiting language in a no-lien agreement will be limited to the class of work or materials described in the agreement. In the instant case, the class of work and materials were described as “cast stone work.” Brubacher had nothing to do with the supply and installation of the cast stone work. Accordingly, the stipulation against liens does not apply to the paving materials and services provided by Brubacher.

Having determined that Brubacher is entitled to summary judgment, the question becomes whether Brubacher is entitled to prejudgment interest. Commerce Bank, in support of its argument that Brubacher is entitled only to amounts owed for labor and materials, cites to the Superior Court’s decision in Artsmith Development Group Inc. v. Updegraff, 868 A.2d 495 (Pa. Super. 2005). The Artsmith case, however, is contrary to previous appellate court decisions, and countless common pleas decisions, which authorized interest calculated from the date when the mechanics’ lien claim was first filed. See In re Oxnard’s Estate, 152 Pa. 621, 25 A. 568 (1893) and Niland v. Gill, 99 Pa. Super. 107 (Pa. Super. 1930).

Moreover, the Artsmith case is distinguishable on its facts. In Artsmith, it appears that the contractor, who had successfully prevailed on its mechanics’ lien claim, was making a claim for interest based on some contractual interest rate greatly in excess of the statutory rate of 6 percent. Here, Brubacher is seeking interest at the statutory rate of 6 percent based on the general rule of law that a successful litigant on a liquidated claim is entitled to recover prejudgment interest at the statutory rate. This rule of law applies equally to mechanics’ lien claims, and must be applied in this case.

III. CONCLUSION

For the reasons set forth above, the motion for summary judgment of Brubacher Excavating Inc. will be granted.

Accordingly, we enter the following:

ORDER

And now, December 22, 2008, upon consideration of the cross motions for summary judgment filed by the parties, it is hereby ordered that summary judgment is granted in favor of Brubacher Excavating Inc., and judgment shall be entered in favor of Brubacher Excavating Inc., in the amount of $42,976.45, together with prejudgment interest at the statutory rate of 6 percent from June 20, 2007 to the date judgment is entered.

      . All material facts are set forth in the joint stipulation of facts prepared by the parties in June 2008 and attached to Commerce Bank’s motion for summary judgment as exhibit “1”.

      . Brubacher’s invoice of May 21, 2007 was for less than the subcontract amount as a result of certain adjustments in the quantity of materials and services actually performed.

      . Originally, Commerce Bank raised six objections to Brubacher’s complaint. (See brief of Commerce Bank in support of preliminary objections.) However, following receipt of Brubacher’s brief in opposition to the preliminary objections, Commerce Bank filed a praecipe to withdraw four of the six objections. (See defendant’s praecipe to withdraw certain preliminary objections filed January 15, 2008.) The matter proceeded on just two objections: (1) the stipulation against liens, filed prior to the effective date of the amendments, barred any mechanics’ lien claim from being filed by any subcontractor or sub-subcontractor; and (2) Brubacher, as a subcontractor to a subcontractor, was not covered within the definition of “subcontractor” under the version of the Mechanics’ Lien Law as it existed in 2006, prior to the effective date of the amendments.

      . Local Rule 1028(c) provides, in relevant part:
      “(7) Oral argument. Any party may request oral argument by filing a praecipe. Oral argument shall be held at such time and place as the judge shall direct.” L.C.R.C.R no. 1028(c)(A)(7).

      . Subsection (a)(2) only applies to residential construction, and has no applicability to the present non-residential project. Under the new law, both contractors (including architects and engineers in direct contract with the property owner) and subcontractors still may waive their rights to file a mechanics’ lien against a property owner with respect to a “residential” project, but only if the total contract price of the project is less than $1,000,000. A residential project is defined as property on which there is a residential building or which is zoned or otherwise approved for residential development, planned development or agricultural use.

      . Commerce Bank’s October 3, 2006 stipulation against liens clearly remains effective for those contracts entered into before the effective date of the amendments to the Mechanics’ Lien Law, January 1,2007.


source: Caselaw Access Project

author: CULLEN, J.,

license: Public Domain

text:
    Christy v. Fricke

      Gary G. Krafft, for plaintiff.

      Megan R. Ford and Christopher W Mattson, for defendants.
    November 20, 2008
   CULLEN, J.,

Pending before the court are the motion for summary judgment filed by defendants, James E. Fricke and Hawk Valley Inc., and plaintiffs’ motion for partial summary judgment. For the reasons set forth below, defendants’ motion will be granted. Plaintiffs’ motion will be denied.

PROCEDURAL AND FACTUAL HISTORY

This case has had a tortured procedural history. Fortunately, not all of the numerous filings are pertinent to the issues now before the court.

This action was initiated by the filing of a complaint by four individuals on February 23,2006. A subsequent petition to amend the complaint was filed and eventually the individuals identified in the current caption became the named plaintiffs.

On March 29,2006, a second amended complaint was filed to which defendants, James E. Fricke and Hawk Valley Inc., filed preliminary objections leading to the filing of a third amended complaint on December 28, 2006. Apparently unaware of the filing of the third amended complaint, defendants filed a motion for summary judgment on December 29, 2006.

Plaintiffs filed a motion for partial summary judgment on January 2,2007. In an apparent attempt to escape the procedural thicket which had grown up, the court held oral argument on a variety of matters. By order of March 7, 2007, the court denied both the motion for summary judgment and the motion for partial summary judgment. In response to plaintiffs’ request for leave to amend their pleading, on March 21, 2007, the court ordered that the third amended complaint be deemed filed with leave and directed defendants to respond. An answer with new matter and a reply to new matter were filed and the pleadings finally closed.

On August 30, 2007, this case was reassigned to the undersigned due to the illness and unavailability of the Honorable Paul K. Allison. Unfortunately, plaintiffs’ counsel was also severely ill and an additional delay was encountered in securing replacement counsel.

The court held a conference with plaintiffs’ new counsel and defendants’ counsel, and agreed to reconsider the previously denied motion for summary judgment and motion for partial summary judgment. Thereafter, a joint motion for reconsideration was filed on April 8, 2008.

This case arises out of defendants’ plan to develop the Hawk Valley Golf Course into residential lots. Plaintiffs are owners of condominiums in one of two residential subdivisions, “Hawk Valley Village” and “The Greens at Hawk Valley,” which abut the golf course. Plaintiffs object to the development of the golf course and argue that when they purchased their properties, they were assured the golf course would remain as a golf course. Plaintiffs seek to have the golf course remain as is and a determination that defendants do not have the right to convert it into residential lots.

DISCUSSION

Pennsylvania Rule of Civil Procedure 1035.2 provides in relevant part: “[a]iter the relevant pleadings are closed ... any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2.

A grant of summary judgment is proper where the evidentiary record either “(1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to the jury.” McCarthy v. Dan Lepore & Sons Co. Inc., 724 A.2d 938, 940 (Pa. Super. 1998). Thus, “[i]f the non-moving party fails to come forward with sufficient evidence to establish or contest a material issue to the case, the moving party is entitled to judgment as a matter of law.” Id. (citing Ertel v. Patriot-News Co., 544 Pa. 93, 100-102, 674 A.2d 1038, 1042 (1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996)).

“A material fact is one that directly affects the outcome of the case.” Gerrow v. Shincor Silicones Inc., 756 A.2d 697, 700 (Pa. Super. 2000).

A court must view the record “in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Pennsylvania State University v. County of Centre, 532 Pa. 142, 145, 615 A.2d 303, 304 (1992).

The purpose of the summary judgment procedure is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Phaff v. Gerner, 451 Pa. 146, 151, 303 A.2d 826, 829 (1973). The court “must ignore controverted facts appearing only in the pleadings” and restrict its consideration to material “filed in support of and in opposition to the motion for summary judgment” and the “uncontroverted” allegations of the pleadings. Id. at 151-52, 303 A.2d at 830; Washington Federal Savings & Loan Association v. Stein, 357 Pa. Super. 286, 289, 515 A.2d 980, 981 (1986).

In opposing a motion for summary judgment and putting forth his or her evidence, the non-moving party cannot rest on the allegations or denials in the pleadings. Rapagnani v. Judas Co., 736 A.2d 666, 668 (Pa. Super. 1999). “Rather, the adverse party must identify evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.” Id. at 668-69.

Both of the pending motions were filed before the court granted leave to file the third amended complaint, and while preliminary objections to the second amended complaint were still pending. The court has reviewed both the second and third amended complaints and finds that the few differences between them do not affect the positions of the parties as expressed in their motions and briefs. Therefore, to move the matter forward, the court will treat the pending motions as if filed after the pleadings closed as this was clearly the intent of the parties when they filed the joint motion for reconsideration.

In their motion, defendants argue that plaintiffs’ claims should be dismissed because they are barred by the doctrine of merger, the parol evidence rule, and the statute of frauds. (Def. mem. of L, def. mot. s.j. at 27-28,38-39.) Defendants also argue that even if the court finds that Counts V through VII have merit, they should be dismissed as time-barred. (Id. at 40-46.)

Although defendants advance numerous theories (e.g., the doctrine of merger, statute of frauds and the parol evidence rule) to support their assertion that plaintiffs’ claims should be dismissed, an analysis of the parol evidence rule is dispositive.

The underlying facts can be summarized as follows.

Plaintiffs are purchasers of condominiums located in either the Hawk Valley Village (The Village) or The Greens at Hawk Valley (The Greens). The homes were purchased between the years 1989 and 1994. Plaintiffs contend that at the time of purchase, they were assured that the existing golf course would be available for their use and enjoyment forever. Plaintiffs assert they were led to this belief by numerous representations, both oral and printed. These representations are stated as follows:

“(12) All plaintiffs purchased homes in the development sections ‘The Village at Hawk Valley’ and ‘The Greens at Hawk Valley’ between 1989 and 1995. At the time of the purchase, plaintiffs were assured and induced by representations by defendants and/or their agents and/ or affiliates to purchase their homes and that the existing golf course would be available for their use and enjoyment forever. (Copies of the representative examples are attached hereto as exhibit ‘B’ collectively.) All plaintiffs were induced to believe this fact by the following representations among others:
“(a) The titles, cover and contents of the selling brochures and advertisements, which featured the community as a golf course community, depicting the homes and the golf course as a single unit;
“(b) Authorized or apparently authorized verbal representations made directly to plaintiffs that the plaintiffs would be purchasing a home in a golf course community, with access to the golf course and associated amenities;
“(c) The fact that the residential-golf course community included construction of golf cart paths and parking shelters spread throughout and integrated with the residential community; and connecting to the golf course; with rights granted plaintiffs for the use of golf cart travel to, from, and on the golf course.
“(d) Verbal representations, descriptions and contract forms as to the availability and benefits of the golf course by defendants Fricke and/or defendants’ sales agents, demanding premium prices for properties with views of the golf course.
“(e) Plot plans showing easements to be granted by residential communities, the Village at Flawk Valley and the Greens at Hawk Valley, to Hawk Valley Inc. for the sole purpose of operating and maintaining the golf course;
“(f) Various sales inducements in the way of offers of golf carts for personal use, special golf packages and other incentives to play golf at Hawk Valley golf (sic) Course;
“(g) Representations that the golf course would be available for the use of all home buyers in The Village at Hawk Valley and The Greens at Hawk Valley.
“(h) Plaintiffs and other potential buyers and owners (who communicated to plaintiffs, as intended by defendants), were shown plans which included representations of dispersed golf cart shelters and golf cart paths for access and traversing the golf course. Advertisements presented that Hawk Valley Inc. offered a golf cart for the homeowner’s own personal use.” (PI. 3d am. compl., ¶12.)

Plaintiffs maintain that they were fraudulently induced to purchase their properties by the advertisements and sales brochures and statements made by defendants’ representatives. For example, plaintiffs allege that defendant Fricke represented to plaintiff Robbins that the golf course would remain permanently (Def. mem. ofl., def. mot. s.j. ex. 8 at 19-20) and defendants’ agent, Jackie Zaephel, made statements that the golf course would remain into perpetuity (See, e.g., def. mem. ofl., def. mot. s.j. ex. 9, ¶¶5-9.) Moreover, plaintiffs claim that the brochures and advertisements held out the community as a golf course community and emphasized the relationship between the condominiums and the golf course. (See pi. ex. A-G.)

For purposes of summary judgment, defendants do not challenge plaintiffs’ assertions that statements were made by defendants or their agents during the sales phase prior to plaintiffs’ purchases. Defendants argue that the statements were truthful depictions of the condominium property and the golf course as they then existed.

Defendants assert that plaintiffs were provided written notice that the golf course may not remain permanently. Defendants contend that when plaintiffs signed their respective agreement of sale, each plaintiff acknowledged they were provided with a copy of the public offering statement. Further, prior to closing, each plaintiff was provided with the declaration of condominium for their respective subdivision. Both the declaration and the public offering statement, for The Greens and The Village respectively, contain clear and unambiguous language to the effect that plaintiffs are not guaranteed future use of the golf course.

The public offering statement for The Village provides:

“THE GOLF COURSE IS A SEPARATELY OWNED AND OPERATED PROPERTY AND IS NOT PART OF THE PROPERTY OF THE CONDOMINIUM. THE DECLARANT MAKES NO REPRESENTATIONS REGARDING THE FUTURE USE OR USES OF THE GOLF COURSE BY DECLARANT OR ANY SUCCESSOR OWNER. NEITHER THE ASSOCIATION, ANY UNIT OWNER, NOR ANY OTHER PERSON GAINS ANY PROPERTY RIGHT, OWNERSHIP INTEREST OR OTHER RIGHT, TITLE OR INTEREST IN THE GOLF COURSE, NOR ANY RIGHT TO USE OR GAIN MEMBERSHIP IN THE GOLF COURSE BY VIRTUE OF OWNERSHIP OF A UNIT, OR OTHERWISE AS AN INCIDENT OR APPURTENANCE OF THE CONDOMINIUM.” (See def. mem. ofl., def. mot. s.j. ex. 4 at 4.) (emphasis in original)

Further, the public offering statement also provides that “Upon recordation of the declaration, the condominium will be subject to the terms of the declaration, as recorded . . . .” (Id. at 12.) The Village declaration states:

“Section 13.5. Adjoining Golf Course. THE DECLARANT IS THE PRESENT OWNER OF THE GOLF COURSE WHICH ADJOINS THE NORTHERN LINE OF THE PROPERTY. THE GOLF COURSE IS A SEPARATELY OWNED AND OPERATED PROPERTY AND IS NOT PART OF THE PROPERTY OR OF THE CONDOMINIUM. THE DECLARANT MAKES NO REPRESENTATIONS REGARDING THE FUTURE USE OR USES OF THE GOLF COURSE BY DECLARANT OR ANY SUCCESSOR OWNER. NEITHER THE ASSOCIATION, ANY UNIT OWNER, NOR ANY OTHER PERSON, GAINS ANY PROPERTY RIGHT, OWNERSHIP INTEREST OR OTHER RIGHT, TITLE OR INTEREST IN THE GOLF COURSE, NOR ANY RIGHT TO USE OR GAIN MEMBERSHIP IN THE GOLF COURSE BY VIRTUE OF OWNERSHIP OF A UNIT, OR OTHERWISE AS AN INCIDENT OR APPURTENANCE OF THIS CONDOMINIUM.” (See id. at 21.) (emphasis in original)

With respect to The Greens, the Public Offering Statement provides that “the golf course located north of Hawk Valley Village is a separately owned and operated property, and unit owners have no ownership interest or rights to use the golf course merely by virtue of owning a unit within the condominium.” (See def. mem. of L, def. mot. s.j. ex. 5 at 3-4.) Also included is a conspicuous paragraph which states:

“ANY INFORMATION OR DATA REGARDING THE CONDOMINIUM NOT INCLUDED IN THIS PUBLIC OFFERING STATEMENT MUST NOT BE RELIED UPON. NO PERSON HAS BEEN AUTHORIZED BY THE DECLARANT TO MAKE ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY CONTAINED HEREIN, AND NOTHING IN THIS PUBLIC OFFERING STATEMENT MAY BE CHANGED OR MODIFIED ORALLY.” (Id. at 18.) (emphasis in original)

Like the public offering statement for The Village, the public offering statement for The Greens provides that “The condominium is subject to the terms of the declaration . . . .” (Id. at 12.) The Greens declaration provides,

“Section 24.5. Adjoining Golf Course. HAWK VALLEY INC. IS THE PRESENT OWNER OF THE GOLF COURSE WHICH ADJOINS THE PROPERTY. THE GOLD [sic] COURSE IS A SEPARATELY OWNED AND OPERATED PROPERTY AND IS NOT PARTY [sic] OF THE PROPERTY OR OF THE CONDOMINIUM. HAWK VALLEY INC. MAKES NO REPRESENTATIONS REGARDING THE FUTURE USE OR USES OF THE GOLF COURSE BY HAWK VALLEY INC. OR ANY SUCCESSOR OWNER. NEITHER THE ASSOCIATION, ANY UNIT OWNER, NOR ANY OTHER PERSON GAINS ANY PROPERTY RIGHT, OWNERSHIP INTEREST OR OTHER RIGHT, TITLE OR INTEREST IN THE GOLF COURSE, NOR ANY RIGHT TO USE OR GAIN MEMBERSHIP IN THE GOLF COURSE BY VIRTUE OF OWNERSHIP OF A UNIT, OR OTHERWISE AS AN INCIDENT OR APPURTENANCE OF THIS CONDOMINIUM.” (Id. at 44-45.) (emphasis in original)

Plaintiffs acknowledged in their deeds that they purchased the property subject to the applicable declaration of condominium, and they acknowledged receipt of the public offering statement in their respective agreement of sale. (See collectively def. mem. ofl., def. mot. s.j. ex. 1 and 6.)

The fundamental allegations underlying plaintiffs’ claims for fraud (Count V) and violations of the Unfair Trade Practices and Consumer Protection Law (UTP-CPL) (Count VII) are the same; that is, the pre-purchase representations made by defendants and their representatives induced plaintiffs to purchase their properties based on the belief that the golf course would exist forever. (See pi. 3d am. compl., ¶¶33-34, 44-48.)

As noted above, the public offering statement for both The Greens and The Village specifically provides that the golf course is a separately owned property and that defendant was not making any representations regarding the future uses of the golf course by defendant or any subsequent owners. (See def. mem. off, def. mot. s.j. exs. 4 and 5.)

Plaintiffs seek to prove their claims by the introduction of statements made prior to the purchase of their condominiums, as well as advertisements. The parol evidence rule, however, bars the introduction of evidence to vary or modify the terms of an integrated contract. Yocca v. Pittsburgh Steelers Sports Inc., 578 Pa. 479, 497, 854 A.2d 425, 436 (2004). The Pennsylvania Supreme Court has explained the parol evidence rule as follows:

“Where the parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only, evidence of their agreement. All preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract... and unless fraud, accident or mistake be averred, the writing constitutes the agreement between the parties, and its terms and agreements cannot be added to nor subtracted from by parol evidence.” Id. (citation omitted)

Thus, for the parol evidence rule to apply, there must be a writing that represents the “entire contract between parties.” Id. (citing Gianni v. Russell & Co., 281 Pa. 320, 323, 126 A. 791, 792 (1924)). To determine whether a writing is the parties’ entire contract, the writing must be looked at and “if it appears to be a contract complete within itself, couched in such terms as import a complete legal obligation without any uncertainty as to the object or extent of the (parties’) engagement it is conclusively presumed that (the writing represents) the whole engagement of the parties . . . .” Id. (citation omitted) “An integration clause which states that a writing is meant to represent the parties’ entire agreement is also a clear sign that the writing is meant to be just that and thereby expresses all of the parties’ negotiations, conversations, and agreements made prior to its execution.” Id. (citation omitted)

Further “parol evidence of prior representations is inadmissible as to matters covered by the written agreement with an integration clause, unless the parties agreed that those representations would be added to the written agreement but they were omitted because of fraud, accident, or mistake.” Glassmere Fuel Service Inc. v. Clear, 900 A.2d 398, 402 (Pa. Super. 2006). (citation omitted)

The situation described above is commonly referred to as “fraud in the execution” since the party proffering the evidence contends that he executed the agreement because he was defrauded by being led to believe that the document contained terms that actually were omitted from it. This is not the case here. In this action, plaintiffs allege they were induced to purchase their homes because of statements and representations made prior to the purchase. Plaintiffs specifically state in their complaint that “[a]t the time of the purchase, plaintiffs were assured and induced by representations by defendant and/or their agents and/or affiliates to purchase their homes and that the existing golf course would be available for their use and enjoyment forever.” (PI. 3d am. compl., ¶12.) Further, plaintiffs allege that they “were induced to purchase by advertisements and sales brochures and statements —” (Id. at ¶14.) Plaintiffs argue that they justifiably relied on the statements and advertisements and would not have purchased their units but for the representations made. (See id. at ¶¶12-13.)

The courts, however, have refused to permit the introduction of parol evidence where a plaintiff alleges he was fraudulently induced to enter into a contract. See generally, Yocca v. Pittsburgh Steelers Sports Inc., 578 Pa. 479, 854 A.2d 425 (2004). “[Wjhile parol evidence may be introduced based on a party’s claim that there was a fraud in the execution of a contract, i.e., that a term was fraudulently omitted from the contract, parol evidence may not be admitted based on a claim that there was fraud in the inducement of the contract, i.e., that an opposing party made false representations that induced the complaining party to agree to the contract.” Id. at 498 n.26, 854 A.2d at 437 n.26 (citation omitted); see also, HCB Contractors v. Liberty Place Hotel Associates, 539 Pa. 395, 652 A.2d 1278 (1995) (stating that admitting parol evidence in claims for “fraud in the inducement” would make a mockery out of parol evidence rule).

Plaintiffs entered into an agreement of sale for their respective condominiums. The agreement of sale contained a merger clause which specifically provided:
“Scope of Authority: Merger.
“(a) This agreement supersedes any and all prior understandings and agreements between the parties and constitutes the entire agreement between them. No representations, warranties, conditions, or statements, oral or written, including any promotional material regarding the condominium, not contained herein shall be considered a part of the contract between the parties hereto. This agreement may not be amended, altered, modified or discharged except by an instrument in writing signed by the party sought to be charged therewith.
“(b) No salesperson, employee or agent of seller has any authority whatsoever to make any representation or agreement not contained in this agreement, and only those contained herein shall be binding upon seller. Purchaser acknowledges that any information received by it from seller or seller’s officers, agents or employees relating to carrying costs, tax benefits of ownership, or otherwise was offered as an estimate only, and purchaser declares that purchaser did not rely thereon in entering into this agreement.” (See def. mem. ofl., def. mot. s.j. ex. 6, The Greens agreement of sale, ¶21, The Village agreement of sale, ¶13.)

Because the same merger clause was included in both The Greens agreement of sale and The Village agreement of sale, the court finds that the agreement explicitly stated that it represented the parties’ entire contract regarding the sale of the condominium. Accordingly, the parol evidence rule bars the admission of any evidence of prior oral or written negotiations, representations, or agreements entered into between the parties concerning the sale of the condominium, such as discussions and advertisements regarding the golf course, to explain or vary those terms expressed in the agreement of sale.

Plaintiffs’ fraud claims are based entirely on allegations that defendants made and breached representations that the golf course would be available for plaintiffs’ use and enjoyment forever. (PI. 3d Am. Compl., ¶¶11-12.) Because those representations are not, in fact, part of the agreement of sale, and in light of Yocca, HCB Contractors and their progeny, plaintiffs have failed to demonstrate the existence of a genuine issue of material fact with regard to their claims of fraud.

Likewise, the court finds that plaintiffs have failed to present a genuine issue of material fact with respect to their claims under the Unfair Trade Practices and Consumer Protection Law (UTPCPL), 73 Pa.C.S. §201-1 et seq. “The general purpose of the UTPCPL is to protect the public from fraud and unfair or deceptive business practices.” Neal v. Bavarian Motors Inc., 882 A.2d 1022, 1029 (Pa. Super. 2005). “The UTPCPL’s underlying foundation is fraud prevention.” Weinburg v. Sun Co. Inc., 565 Pa. Super. 612, 618, 777 A.2d 442, 446 (2001).

To bring a private cause of action under the UTPCPL, a plaintiff must show that he justifiably relied on the defendant’s wrongful conduct or representation and that he suffered harm as a result of that reliance. See Toy v. Metropolitan Life Insurance Co., 593 Pa. 20, 46, 928 A.2d 186, 202 (2007) (holding “plaintiff alleging violations of the [UTPCPL] must prove the common-law fraud element of justifiable reliance”); Yocca, 578 Pa. at 500, 854 A.2d at 438. Plaintiffs’ claims are premised on the representations made by defendants before the parties entered into an agreement of sale. According to plaintiffs, they are entitled to relief because they justifiably relied on these representations in deciding to purchase their respective condominiums and that they suffered damage as a result of that reliance.

Because the Commonwealth has adopted the parol evidence rule, plaintiffs cannot be said to have justifiably relied on any representations made by defendants before the parties entered into the agreement of sale. See Yocca, 578 Pa. at 502, 854 A.2d at 439. By signing the agreement of sale, which contained a merger clause stating that the terms of the agreement of sale superseded all of the parties’ previous representations and agreements, plaintiffs explicitly disclaimed reliance on any such representations. See id. (citing Blumenstock v. Gibson, 811 A.2d 1029, 1035-36 (Pa. Super. 2002) (quoting “a party cannot justifiably rely upon prior oral representations yet sign a contract denying the existence of those representations”)); Sunquest Information Systems Inc. v. Dean Witter Reynolds Inc., 40 F. Supp.2d 644, 654 (W.D. Pa. 1999) (“As a matter of basic logic, [plaintiff] cannot be said to have relied upon representations specifically excluded by the [merger] clause.”). Accordingly, as any reliance on representations preceding the agreement of sale was not justifiable, plaintiffs’ allegations cannot establish that they are entitled to relief under the UTP-CPL.

Plaintiffs also assert defendants violated the Uniform Condominium Act, 68 Pa.C.S. §3402 (Count VI), by failing to act in good faith in the execution and/or performance of the sales contracts pursuant to section 3412. (PL 3d am. compl., ¶42.) Specifically, plaintiffs allege defendants violated section 3402 for failing to include in the public offering statement a statement regarding the possible termination of the golf course and further allege that “no description [contained in the public offering statement] would be full or accurate without disclosure of any alleged right to wholly terminate its existence.” (Id. at ¶38.). Plaintiffs also state that the public offering statements that were provided wholly omitted, inter alia, any reference to any possible termination of the golf course and failed to advise plaintiffs that the golf course might not be retained in perpetuity. (Id. at ¶40.)

While plaintiffs posit, in their complaint, that the public offering statement does not disclose this information, the evidence is to the contrary, as quoted extensively above. The public offering statements state clearly and unambiguously that the golf course is a separately owned and operated property and that defendant was not making any representation regarding the future use of the golf course. (See def. mem. ofl., def. mot. for s.j., exs. 2 and 3 (declarations) and exs. 4 and 5 (public offering statements).) Each public offering statement contained paragraphs that summarized the pertinent sections regarding the golf course as stated in the declaration. (Def. mem. off, def. mot. for s.j., ex. 4 at 8, ex. 5 at 29.) The public offering statements also attached certain important documents, including the declaration, and the plats and plans of the respective condominiums. (Def. mem. of 1., def. mot. for s.j., exs. 4 and 5.) These plats and plans do not depict the golf course in any manner, further illustrating that plaintiffs had no claim to the golf course when they purchased their properties. (Def. mem. of 1, def. mot. for s.j., ex. 4 at part II, ex. 5 at part II.) These exhibits were clearly tabbed and referenced in the table of contents of the public offering statements for both The Greens and The Village. (Def. mem. off, def. mot. for s.j., ex. 4 at ii, ex. 5 at table of contents.)

Lastly, plaintiffs complain that “defendants did not provide a public offering statement 15 days prior to an agreement.” (PI. 3d am. compl., ¶42.) Defendants are not required to provide a public offering statement 15 days prior to an agreement. 68 Pa.C.S. §3402(a)(12) states in pertinent part:

“Section 3402. Public offering statement; general provisions
“(a) General Rule. — [A] public offering statement must contain or fully and accurately disclose:...
“(12) A statement in at least 10-point bold face type, appearing on the first page of the public offering statement, as follows:
“(i) That within 15 days after receipt of a public offering statement,... the purchaser, before conveyance, may cancel any contract for purchase of a unit from a declarant.
“(ii) That if a declarant fails to provide a public offering statement... to a purchaser before conveying a unit, that purchaser may recover from the declarant damages as provided in section 3406(c) (relating to purchaser’s right to cancel).
“(hi) A description of such damages.
“(iv) That if a purchaser receives the public offering statement more than 15 days before signing a contract, he cannot cancel the contract....” 68 Pa.C.S. §3402(a) (12).

In short, defendants must only give plaintiffs 15 days from the date plaintiffs receive the public offering statement within which to cancel the agreement of sale. Here, there is no dispute that defendants have complied with section 3402(a)(12). (See def. mem. off, def. mot. s.j. exs. 4 and 5 (displaying language in compliance with section 3402(a)(12)).) Each of the plaintiffs executed an agreement of sale that contained a paragraph acknowledging receipt of the corresponding public offering statement prior to signing the agreement of sale. (See def. mem. of L, def. mot. s.j. ex. 6, ¶5 of each agreement of sale.) There is no indication that plaintiffs sought to cancel the transaction within the specified time period after receiving the public offering statements. Accordingly, the court finds that there is no cause of action as a matter of law.

For the reasons set forth above, the court finds that plaintiffs have failed to identify evidence in the record establishing the facts essential to their causes of action. While plaintiffs may have been told, prior to the time of the purchase of their condominiums, that it was a golf course community, there is no evidence that information was untrue at the time the statements were made. However, the public offering statements and declarations clearly reflected that the golf course may not remain in perpetuity. Therefore, plaintiffs’ claims fail and defendants are entitled to judgment as a matter of law.

With respect to plaintiffs’ motion for partial summary judgment, for the same reasons set forth above, the court finds that plaintiffs have failed to set forth a cause of action for claims arising under the UCA (Count VI) and the UTPCPL (Count VII).

The public offering statement and declaration for The Village and The Greens, respectively, contain provisions stating that the golf course is a separately owned and operated property and not a part of the condominium. Moreover, these provisions are not deceptive or designed to cause confusion. These provisions were conspicuous, clear, and unambiguous. They were neither “buried” or drafted in “opaque language”. Rather, they were drafted in a manner to alert the reader of the importance of its contents by, for example, using all capital letters, a bold type-face, and clearly underlined section headings (e.g., “Adjoining Golf Course”). Accordingly, because plaintiffs have failed to set forth a cause of action for claims arising under the UCA and UTPCPL, plaintiffs’ motion for partial summary judgment will be denied.

ORDER

And now, November 20, 2008, the motion for summary judgment filed by defendants, James E. Fricke and Hawk Valley Inc., is granted.

Plaintiffs’ motion for partial summary judgment is denied.

      . The four original plaintiffs were Robert Christy, Leroy Klein, Richard Moller and Donald Robbins.

      . On April 1, 2008, defendants filed a separate motion for summary judgment and supporting brief with respect to the claims of Irene Lockner. In lieu of a response, a praecipe to discontinue the action without prejudice was filed on Ms. Lockner’s behalf on April 25,2008. Defendants filed a petition to strike the praecipe on April 30, 2008. Because of the court’s disposition of Ms. Lockner’s claim, no specific reference will be made to her in this opinion.

      . The parties presented no evidence with respect to plaintiffs Robert and June Beers in connection with plaintiffs’ motion for partial summary judgment and defendants’ motion for summary judgment. Defendants state in their memorandum of law in support of their motion for summary judgment that plaintiffs Robert and June Beers did not participate in discovery, failed to respond to requests for production and interrogatories that were served upon them, and failed to appear for their depositions because they were in Florida. Since both plaintiffs and defendants are willing to proceed as evidenced by their joint motion for reconsideration, the court concludes that plaintiffs and defendants are satisfied with the record as it currently exists. Neither party has sought to have the disposition of the pending motions delayed to conduct further discovery. Moreover, there is no suggestion that plaintiffs Robert and June Beers have evidence different than what has already been presented. Although defendants are the moving party and have the burden of demonstrating that there is no genuine issue of material fact as to plaintiffs’ claims, defendants have met that burden by setting forth evidence with respect to the existing claims. Once this has been done, it is plaintiffs Robert and June Beers’ burden to present evidence to create a genuine issue of material fact. As they have not provided any evidence, the court must proceed and treat their allegations the same as the allegations of the other plaintiffs. Consequently, even though each of the other plaintiffs’ agreement of sale is included in defendants’ exhibit 6, plaintiffs Robert and June Beers’ agreement of sale is missing from the exhibit.

      . 73 P.S. §201-1 et seq.

      . Plaintiffs attempt to argue that the merger clause is not enforceable because the agreement of sale is a contract of adhesion and is unconscionable. A contract of adhesion is “a form contract prepared by one party, to be signed by the other party in a weaker position, usually a consumer, who has little choice about the terms.” McNulty v. H & R Block Inc., 843 A.2d 1267, 1273 (Pa. Super. 2004). However, the evidence in this case does not support the claim that the agreement of sale is an adhesion contract. The agreement of sale here was not one which was drafted to take advantage of the plaintiffs’ “weaker” position. In fact, the plaintiffs were not in a weaker position as each had the option and ability to not enter into the transaction in the first place and to purchase a residence elsewhere. Moreover, not all adhesion contracts are unconscionable. Id. Unfortunately, plaintiffs have failed to fully develop their argument, merely stating that they were denied the opportunity to negotiate the agreement of sale because the condominium documents were registered and were 140 pages long. Without a more developed argument or evidence in support of their claims, plaintiffs’ claim that the contract is unconscionable is without merit.

      . Toy differentiated between “reliance” and “justifiable reliance” by stating that “justifiable reliance” is typically a fact for the fact-finder to decide and requires consideration of parties, their relationship, and circumstances surrounding the transaction, including whether representations were superseded by a fully-integrated, signed, written agreement in which those representations were expressly disclaimed and that “reliance” only requires the plaintiff establish nothing more than a causal connection between the plaintiffs loss and the defendant’s unlawful behavior. Toy, 593 Pa. at 54-55, 928 A.2d at 208. The Supreme Court in Toy made clear that “justifiable reliance” only becomes a fact for the fact-finder to decide when “fraud in the execution” is alleged. Id. When only “fraud in the inducement” is alleged, as here, the court’s analysis with respect to plaintiffs’ UTPCPL claim and the element of “justifiable reliance” is appropriate. Id. at 46-55, 928 A.2d at 203-208.

      . Because the court finds in favor of defendants and against plaintiffs, plaintiffs are not entitled to the remedies of specific performance (Counts II and III) and implied or resulting trust (Count IV) as plaintiffs have failed to demonstrate the existence of a valid cause of action which would warrant such relief. Plaintiffs are not entitled to a declaratory judgment (Count I) because plaintiffs have not established that a valid claim exists.


author: CHESLOCK, J.,

text:
    White Oak Builders Inc. v. East Penn Mortgage Co. LLC

      William H. Robinson Jr., for plaintiff.

      Martin J. Karess, for defendant East Penn Mortgage Co.

      Lisa A. Welkey, for defendant Hatton.

    April 20, 2006
   CHESLOCK, J.,

This matter comes to the court on plaintiff/counterclaim defendant, White Oak Builders Inc. ’s (plaintiff) motion for summary judgment. The facts regarding this case are summarized as follows: on July 8, 2003, defendant, William Hatton, executed an agreement of sale to purchase a vacant lot from seller Daniel Malsch. The parcel of real property Hatton purchased is known as lot no. 31, Spruce Lane in the Leisure Lands Community, Middle Smithfield Township, Monroe County, Pennsylvania. Contemporaneously therewith, Hatton executed a construction agreement with plaintiff to construct a home on the lot which Hatton was purchasing from Daniel Malsch. Final settlement on the lot purchase was held on August 29, 2003, and the construction commenced shortly thereafter on Hatton’s home. Sometime in October 2003, Hatton became aware of a drainage problem due to a drain pipe he believed was located on a neighboring property. Hat-ton became aware that the drainage pipe was located on his property and insisted that East Penn Bank cease funding of the construction of his home. On March 11,2004, plaintiff commenced an action in equity seeking damages, requesting that the mortgage be reformed to strike lot 32 from the legal description and have Hatton execute a corrected mortgage to include costs and attorneys’ fees to plaintiff. In response to the complaint, Hatton filed a counterclaim which alleges a breach of contractual duty, rescission and loss of bargain. On February 15, 2006, plaintiff filed a motion for summary judgment on the counterclaim of Hatton. The parties agreed to submit this matter on briefs and we are now prepared to dispose of this matter.

Rule 1035.2 of the Pennsylvania Rules of Civil Procedure provides that a motion for summary judgment may be granted:

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

Summary judgment is a means to eliminate the waste of time and resources of litigants in a case where the trial would be a useless formality. Liles v. Balmer, 389 Pa. Super. 451, 567 A.2d 690 (1989). The Pennsylvania Rule of Civil Procedure 1035 allows the court to consider pleadings, depositions, answers to interrogatories, admissions and supporting affidavits in determining a motion for summary judgment. Furthermore, a motion for summary judgment is only properly granted in cases where the right to judgment is clear and free from doubt, with any existing doubt viewed in the light most favorable to the non-moving party. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991); Hayward v. Medical Center of Beaver County, 530 Pa. 320, 608 A.2d 1040 (1992). Moreover, a non-moving party may not rest upon mere allegations or denials of the pleadings. Rather, the non-moving party must set forth specific facts demonstrating that there are genuine issues for trial. Failure to allege such specific facts will result in summary judgment if appropriate, against the non-moving party. Pa.R.C.P. 1035.3; Washington Federal Savings and Loan Association v. Stein, 357 Pa. Super. 286, 515 A.2d 980 (1986); Overly v. Kass, 382 Pa. Super. 108, 554 A.2d 970 (1989).

In its motion for summary judgment, plaintiff alleges that there is no duty on its part regarding the condition of Hatton’s property and that it was simply the builder. Plaintiff argues that it was in no way involved with the procurement of the land and that Hatton’s counterclaim alleging rescission of contract contains insufficient evidence of fact to establish any recognizable cause of action. Accordingly, plaintiff contends that summaiy judgment should be granted in its favor.

Count I of Hatton’s counterclaim against the plaintiff is entitled Failure to Disclose — Property Inspection. Hatton alleges that plaintiff failed to perform its obligation under the contract when it began construction on lot 31 knowing the existence of the encroaching water drainage pipe but failed to disclose existence of such pipe and/ or defect while continuing construction of his home. Hatton’s complaint couches Count I in terms of a tort as opposed to a breach of contract language. Specifically, the counterclaim states that plaintiff knew or should have known of the existence of the drainage pipe and continued construction when it knew or should have known of the defect in real estate at lot 31. Plaintiff contends that Hatton’s action is based solely on the contract, however, the language contained in Hatton’s counterclaim sounds in negligence. Hence, we will address the issue by briefly discussing the “gist of the action” doctrine.

The gist of the action doctrine, although not expressly adopted by the Pennsylvania Supreme Court, has been predicted to be adopted by the Pennsylvania courts by both the Pennsylvania Superior Court and the United States District Court. The courts have applied the doctrine to fraud claims. See Werner Kammann Maschinenfabrik GmgH v. Max Levy Autograph Inc., (E.D. Pa. 2002). In essence, the gist of the action doctrine precludes a plaintiff from recasting an ordinary breach of contract claim into a tort claim. Bash v. Bell Telephone Company, 411 Pa. Super. 347, 601 A.2d 825 (1992). The gist of the action doctrine’s purpose is to maintain a distinction between the theories of breach of contract and torts. Air Products and Chemicals Inc. v. Eaton Metal Products Co., 256 F. Supp.2d 329, 340 (2003). (citation omitted) A breach of contract action gives rise when there is a breach of duty composed by mutual consents contained in the contract, whether oral or written. However, it is possible that a breach of contract also gives rise to an actionable tort. eToll Inc. v. Elias Savion Advertising Inc., 811 A.2d 10, 14 (Pa. Super. 2002) (citing Bash, supra). Specifically, the gist of the action doctrine applies where a plaintiff alleges that a defendant committed a tort in the course of carrying out a contractual agreement and the court examines the claim and determines whether the gist of the action was founded in contract or in tort. Air Products and Chemicals Inc., supra. A tort claim is maintainable only if the contract is collateral to the action which is primarily tortiuous. Id.

Hatton contends that he is entitled to damages for plaintiff’s failure to perform its obligations under the contract construction agreement due to its knowledge of the drainage pipe or the existence of a defect on said property located at lot 31. See counterclaim paragraph 33. The alleged act or negligence complained of by Hatton arose in the course of the parties’ contractual relationship. Had it not been for the contract, there would not be a counterclaim filed by Hatton against plaintiff. The action is based primarily on the contract and not any tortious action by the plaintiff. If construction under the contract did not commence, Hatton could not have filed his counterclaim. Therefore, we reason that without the contract plaintiff would have no cause of action. Hatton’s allegations of misrepresentation connected to the construction of his home he alleges were intertwined with the obligations imposed by the contract itself. We find that this cause of action is collateral to the contract and that Hatton’s cause of action sounds in contract.

Hatton, also, claims that upon his discovery of the water drainage pipe, he halted construction and stopped payment to the plaintiff for construction of the home. However, the counterclaim brought by Hatton against the plaintiff indicates that the plaintiff failed to perform its obligation under the contract when it knew of the existence of the encroaching water drainage pipe. Hatton argues that the drainage water pipe was not disclosed to him prior to the construction agreement.

We find there are no allegations that plaintiff sold the lot to Hatton or that the plaintiff was under any obligation to disclose the existence of the pipe to a property which Hatton purchased from a third party. Under the gist of the action doctrine in this matter, we find that Hatton’s counterclaim sounds in contract and a review of the contract reveals no duty on the part of plaintiff regarding Hatton’s property. It is simply a contract for construction of a home on the land owned by Hatton. Furthermore, we find that pursuant to Rule 103 5.2 (2) the adverse parties who will bear the burden of proof at trial must produce evidence of fact adverse to the cause of action which in a jury trial would require the issues to be submitted to a jury. We note that Hatton has not produced any evidence and his brief contains no authority or case law in support of his position. Accordingly, we believe that there is no genuine issue of any material fact that could be established and that summary judgment is proper in this matter.

Next, the defendant requests summary judgment regarding Count II of Hatton’s counterclaim alleging a rescission of the contract due to insufficient evidence of facts to establish a cause of action which is to be submitted to a jury. Count II of Hatton’s counterclaim requests a rescission of contract in that plaintiff failed to deal fairly and honestly in contract negotiations by knowingly entering into a contract to construct a new home on lot 31, knowing that there is an encroaching drain pipe existing on the property that has not been disclosed to plaintiff. Rescission under the law is primarily to return the party as nearly as possible to their original position where it is warranted under the circumstances of the transaction. Gilmore v. Northeast Dodge Co. Inc., 278 Pa. Super. 209, 214, 420 A.2d 504, 507 (1980). Such rescission is an equitable remedy and granted where the parties to a contract can be placed in their former position regarding the subject matter of the contract. Baker v. Cambridge Chase Inc., 725 A.2d 757, 767 (Pa. Super. 1999).

Here, the plaintiff commenced construction on Hat-ton’s residence, and although Hatton alleges that the plaintiff breached its duty by failing to deal fairly and honestly, these are broad allegations that are made in his counterclaim which are not supported by fact. Hatton fails to state specifically how plaintiff fails to deal fairly and honestly with him and has failed to point to any language in the contract which imposes any duty on plaintiff regarding the condition of the property. The language contained in the counterclaim at Count II appears to attempt to plead a fraud claim against the plaintiff. In order to make out a cause of action for fraud, the plaintiff is required to allege and prove: “(1) misrepresentation; (2) a fraudulent utterance thereof; (3) an intention by the maker that the recipient will be thereby induced to act; (4) justifiable reliance by the recipient upon the misrepresentation; and (5) damage to the recipient as a proximate result.” Elia v. Erie Insurance Exchange, 398 Pa. Super. 433, 438, 581 A.2d 209, 212 (1990). (citation omitted)

Instantly, the counterclaim plaintiff, Hatton, alleges that the counterclaim defendant, plaintiff, knowingly failed to disclose of the existence of the encroaching drainage pipe to him making the land unfit for construction. A cursory reading of Count II demonstrates that Hatton failed to allege a misrepresentation other than the allegation that the plaintiff knowingly entered into a contract with the knowledge of the existing drainage pipe on the property. There is no allegation of a fraudulent utterance, an intention to induce Hatton to act upon it, justifiable reliance or damage as a result of any misrepresentation. We find that Count II of the counterclaim wholly fails to articulate any allegations to support the cause of action. Further, rescission is not viable where construction has already commenced and it would be difficult, if not impossible, to return the parties to their original positions. For these reasons and the failure of the counterclaim to specifically set forth allegations to support the rescission of the contract, we will grant the summary judgment and dismiss Count II of the counterclaim against plaintiff.

Finally, plaintiff requested summary judgment to be granted regarding Count III of Hatton’s counterclaim entitled loss of bargain. In Count III, Hatton claims that he suffered a loss of bargain to his detriment as a result of plaintiff. However, he fails to set forth exactly what bargain was lost and what action the plaintiff caused him to lose such bargain. As set forth above, Hatton never alleges that plaintiff sold the vacant lot to him and we are at a loss to determine how Hatton suffered a loss of his bargain by plaintiff continuing to construct a home on the lot or vacant property which, pursuant to the construction agreement, was to be provided by Hatton. The court notes that in his brief in opposition to the motion for summary judgment, Hatton fails to set forth any authority or case law in support of his position. The only case law contained in Hatton’s brief is relative to the standard for summary judgment. It has been held that all issues are waived which are not supported by citation to appropriate legal authority. Treasure Lake Property Owners Association Inc. v. Meyer, 832 A.2d 477 (Pa. Super. 2003). Hence, we find no merit to Hatton’s position in this regard. Moreover, pursuant to Rule 1035.2(2), Hat-ton had the burden of producing evidence of facts essential to his cause of action. We find that he has wholly failed to meet his burden in this regard.

In accordance with the foregoing, we enter the following order:

ORDER

And now April 20, 2006, upon consideration of the plaintiff, White Oak Builders Inc.’s motion for summary judgment on the counterclaim of defendant, William Hatton, and the responses thereto, it is hereby ordered that summary judgment is granted in favor of counterclaim defendant, White Oak Builders Inc. and against counterclaim plaintiff William Hatton.

      . Hatton’s deposition testimony indicates that he was aware of the pipe before construction commenced; however the seller’s representative (Malsch) indicated that the pipe was located on the adjoining property.


author: PARISI, J.,

text:
    Commonwealth v. Lamana

      Seth Boer, trial attorney for Commonwealth.

      Adrian Shchuka, appeal attorney for Commonwealth.

      Marc Neff, for defendant.
    February 2, 2009
   PARISI, J.,

On May 8,2008, ajuiy found Mr. Lamana guilty of one count of possession of child pornography, acquitting him of another count. On October 14, 2008, the defendant received a sentence of four to 23 months of incarceration followed by five years of probation. He filed a timely appeal on October 28, 2008. In the present appeal, Peter Lamana challenges the denial of his pretrial motions, specifically motions seeking remedies for the alleged destruction of evidence and a motion to suppress evidence.

The charges against Mr. Lamana arose from the discovery of child pornography on his personal computer while a teacher at Boyertown High School. In October and November of 2004, Karla Volpi, the Boyertown School District IT manager, tracked a number of incidents of unusual traffic on the school district computer network. Because it was her job to maintain the network, the traffic concerned Ms. Volpi. In addition, on November 2, 2004, an incident of unusual traffic coincided with a massive computer virus attack on the network. After this incident, Ms. Volpi found the source of the unusual traffic: Mr. Lamana’s personal computer, which he had installed in his classroom and connected to the school network. Ms. Volpi turned off the network port to which Mr. Lamana had connected his computer, citing the district policy against personal computers on the network, and asked the defendant to take his computer home. However, she soon acquiesced to Mr. Lamana’s plea for a short-term reprieve and reopened the port to Mr. Lamana’s computer.

On November 29, 2004, a virus again attacked the school district network. Ms. Volpi decided to investigate Mr. Lamana’s computer to see if it was the source of the virus. Ms. Volpi entered the defendant’s classroom, which had been locked for a school holiday, and turned on the defendant’s personal computer. Almost immediately after turning on the computer, Ms. Volpi found a folder named “shit.” Inside the folder she found files with various sexual titles. She noted files with titles indicating children and sex acts. She opened some of these files, finding images and video of children participating in sex acts. She noted that these files had last been accessed on November 24, 2004. Later that day, she reopened some files to show the images to then-superintendant Dr. Amuso and the police. Before Mr. Lamana could again access the computer, the police executed a warrant for its seizure. Its contents became the basis of the charges Mr. Lamana faced at trial.

Ms. Volpi’s opening of the child pornography files became the basis for the first two pretrial motions contested in the present appeal. Files such as the ones opened by Ms. Volpi track the last time they were opened and viewed. Each time a file is opened, the data is altered to reflect the most recent use, and users can easily see when the file was last opened. Police investigating computer crimes typically create a forensic image of the contents of a computer, preserving the data exactly as it was when they obtained the computer. This allows them to open and close files without changing any data about the last time a file was opened prior to seizure. Both the prosecution and the defense can then utilize the forensic image, assured that the data they access remains as it was when last controlled by the defendant.

Here, because Ms. Volpi opened and viewed the child pornography files, neither the prosecution nor the defense could access data about the last time the files were viewed when Mr. Lamana still had access to the computer. Each time she opened the pornographic files, the data about last use changed to reflect her most recent viewing. By the time the police seized the computer, all of the child pornographic files from the computer reflected a last use on November 29, 2004, at the time Ms. Volpi had the computer under her control. Although Ms. Volpi testified at trial that the last time the files were opened prior to her discovery was November 24, 2004, the parties had no way to independently verify this testimony because the data was lost.

Because of the altering of this potentially exculpatory evidence, the defense moved for drastic remedies— dismissal of the charges or preclusion of all testimony concerning the contents of the computer. This court denied these motions after a pretrial hearing on the matter. The defendant now appeals the denial of these motions, contending that he was denied due process of law. However, the minor alteration of the evidence, made prior to seizure, not by the police, and without any bad faith, could not justify the granting of the defendant’s motions.

To justify corrective sanctions for lost or destroyed evidence, such as the suppression sought by the defendant here, the defendant must demonstrate that the police acted in bad faith in losing or destroying the evidence. Commonwealth v. Small, 559 Pa. 423, 441, 741 A.2d 666, 676 (1999), citing Arizona v. Youngblood, 488 U.S. 51 (1988). Here the police did not commit the alleged destruction of the evidence. In addition, Ms. Volpi’s conduct did not evidence an effort to obscure the facts or railroad Mr. Lamana into a conviction or any other questionable motives suggesting bad faith. Because the date was altered prior to the police seizure, neither party was able to examine the lost data; everything available to the prosecution was available to the defense. In addition, the defense was able at trial to fully explore the loss of the data to suggest that the defendant was unaware of the contents of his computer. Finally, the contraband files remained otherwise intact — the defense even stipulated that they were child pornography. Therefore, the alteration of the last-opened date in the files did not deny Mr. Lamana of due process of law and no corrective sanctions were warranted.

The defense also contends that this court erred in denying a separate pretrial motion to suppress the contents of the computer based upon the defendant’s privacy interest in the computer. Searches and seizures by government employers or supervisors of employee workspaces are subject to Fourth Amendment restraints. Commonwealth v. Jackson, 809 A.2d 411 (Pa. Super. 2002); O ’Connor v. Ortega, 480 U.S. 709 (1987). However, the Fourth Amendment does not prohibit the reasonable search of a government employee’s work area for non-investigatory, work-related purposes. Ortega, 480 U.S. at 725-26. For example, in Ortega officials at a public hospital searched the office of a doctor who was under investigation for misconduct. Id. at 712. The hospital justified the searches as a standard work-related inventory search of the office. Id. at 713. The doctor contended that the search was improper because it was a search related to the investigation into the alleged misconduct. Id. Writing for the plurality, Justice O’Connor ruled that while searches for investigatory purposes require “reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct,” necessaiy searches for noninvestigatoiy, work-related purposes require no further justification. Id. at 726. Thus, government employers may freely search employee workspaces if necessary for such mundane tasks as the retrieval of a certain file. Id.

Here, Ms. Volpi’s search of the defendant’s computer involved just such a mundane task. Ms. Volpi’s duties included maintaining the health of the computer network. To do so, she needed to access all the computers on the network to make sure none were contaminated with malicious software dangerous to the network. On the day of the search, the network had been attacked by a virus, making Ms. Volpi’s task all the more urgent and necessary. Although the objected-to search involved Mr. Lamana’s personal computer, not a computer owned by the school district, Mr. Lamana rendered such a search reasonable when, against district policy, he connected his computer to the network. Although an “employee may avoid exposing personal belongings at work by simply leaving them at home,” and even in the face of a personal request from Ms. Volpi to remove the computer, Mr. Lamana kept his pornography-laden computer in his classroom and connected to the network. Id. at 725. In light of these facts, the defense contention that Ms. Volpi should have obtained a warrant is absurd. And because Ms. Volpi had a standing right to access the computer as part of her regular duties, she also needed no court approval to show the questionable files to the superintendent and police. Therefore, this court properly denied the motion to suppress.

For the foregoing reasons, it is respectfully requested that the defendant’s appeal be denied.

      . Sexual abuse of children, 18 Pa.C.S. §6312(d).

      . At trial, the defense stipulated that images and video on the defendant’s computer constituted child pornography.

      . The defense has argued that the unusual case of Commonwealth v. Deans, 530 Pa. 514, 610 A.2d 32 (1992), entitles Mr. Lamana to relief. In Deans, the Supreme Court of Pennsylvania ruled that a defendant’s due process rights were violated where the police lost an allegedly forged lottery ticket prior to the filing of a forgery charge. Id. However, in Deans the lost evidence constituted the primary evidence of the crime and had been fully available to the prosecution, but not the defense, for expert evaluation. Id. at 517, 610 A.2d at 34. Here, the lost evidence was not the primary evidence of the crimes charged, and it was not available to either side, except in the form of Ms. Volpi’s testimony. And Ms. Volpi testified only to what she saw — she did not provide expert opinion explaining how her observation of the last-viewed date implicated the defendant. Therefore, Deans does not apply to the case at hand.

      . Concurring in the decision, Justice Scalia similarly reasoned that employer searches carrying out work-related purposes should be considered reasonable whether the employer is private or governmental. Ortega, 480 U.S. at 732, Scalia, J., concurring.