author: BATEMAN, J,

text:
    Commonwealth v. Jester
    C.P. of Bucks County,
    no. 1159-2009.

      Edward Mounir Louka, for Commonwealth.

      Stephen H. Shantz, for defendant.

      March 4, 2010
   BATEMAN, J,

On April 20, 2009, Christopher Jester (appellant) pleaded guilty to 10 counts of disseminating photographs of children involved in sex acts, 10 counts of possession of child pornography,10 counts of criminal use of a communication facility, and 10 counts of displaying obscene or sexual materials. Sentencing was deferred in order for appellant to be evaluated by the Sexual Offender Assessment Board.

On September 23, 2009, a hearing before the undersigned was held for the purpose of determining appellant’s sexual offender classification (SVP hearing); a sentencing hearing immediately followed. At the SVP hearing, this court concluded that the Commonwealth had met its burden of proof and classified appellant as a sexually violent predator (SVP) pursuant to 42 Pa.C.S. §9792. Appellant was then sentenced to nine to 21 years in a state correctional institution with 19 years of probation to run consecutive. On October 10,2009, appellant filed a motion to modify and reconsider his sentence, and a hearing was scheduled for November 25; 2009. At the hearing, appellant’s motion was granted and the sentence imposed on September 23,2009 was vacated. Appellant was resentenced to a total of seven-and-a-half to 21 with 12 years of probation to run consecutive.

Appellant filed a notice of appeal on December 28, 2009, and this court issued an order on December 29, 2009, directing appellant to file a statement of matters complained of on appeal within 21 days. On January 19, 2010, appellant did so. Pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), we file this opinion.

STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

Appellant raises the following two issues on appeal:

“(1) Appellant believes and therefore avers that the court abused its discretion in sentencing him to serve not less than seven and a half years nor more than 21 years in a state correctional facility for possession of child pornography, display of obscene materials, and criminal use of a communication facility by not considering appellant’s mitigating evidence.

“(2) Appellant believes and therefore avers that the evidence presented to the court was insufficient as a matter of law to establish by clear and convincing evidence that he is a sexually violent predator.” See statement of matters complained of on appeal ¶¶1-2.

FACTS

During October of2008, Corporal Dennis Long of the Pennsylvania State Police was contacted by Corporal Robert Erdely, also of the Pennsylvania State Police, who was assigned to the Bureau of Criminal Investigations, computer crime division. N.T. 4/20/09 p. 15. Erdely reported that on November 9, 2008, he conducted an undercover operation and identified a computer participating in the distribution of child pornography over the internet via the file-sharing program, “Limewire.” N.T. 4/20/09 p. 15. The computer was located at Internet Protocol (IP) address 68.37.178.1. N.T. 4/20/09 p. 15. Erdely discovered 829 files being offered by the computer at the above IP address and identified several child pornography video files. N.T. 4/20/09 p. 16. By way of court order, Erdely learned that the IP address belonged to a Deborah Fisher, located at 360 West Paletown Road in Quakertown, Bucks County, Pennsylvania. It was further discovered that appellant had a vehicle registered to that address. N.T. 4/20/09 p. 16.

On January 20,2009, Trooper Paul Iannace and Corporal Long went to said address to execute a search warrant. That search warrant yielded numerous video files of child pornography as well as photographs of child pornography on appellant’s computer and additional child pornography images on a CD-ROM in appellant’s trunk; the computer and CD-ROM were then seized. N.T. 4/20/09 p. 17. During the interview that followed with Corporal Long, appellant gave conflicting statements regarding his involvement with, and use of, child pornography. Appellant first admitted that he had downloaded and viewed images of child pornography and stated that he would masturbate to an image of child pornography, and when he was ready to climax, he would think of an old naked woman as negative reinforcement or a nice adult female as positive reinforcement. N.T. 4/20/09 p. 17. Appellant stated that he referred to this practice as “adverse treatment” used to help prevent his “urges” of harming children. N.T. 4/20/09 p. 17. By engaging in this practice, appellant believed that he was “not offending children,” though he did admit to having inappropriate thoughts towards children. He then reiterated that he used child pornography to break him of his thoughts of sexually assaulting children. N.T. 4/20/09 p. 18. During that same interview, however, appellant also stated that he had been collecting these images to show his therapist how easy it was to obtain pornography over the internet. Appellant further claimed he wanted to warn the public about the hazards of the internet. N.T. 4/20/09 p. 17.

At the SVP hearing on September 23, 2009, Dean Dickson, a member of the Sexual Offender Assessment Board since 1996, concluded within a reasonable degree of professional and psychological certainty that appellant met the criteria under the law for a sexual violent predator. N.T. SVP hearing 9/23/09 p. 9. Dickson based this assessment on appellant’s voluminous criminal history, dating back to age 12. Appellant’s criminal record indicates that he began molesting three different intrafamilial victims, who were between the ages of 6 and 10 years old, when appellant, himself, was 10 years old. N.T. SVP hearing 9/23/09 p. 11. In 1986 at age 13, appellant admitted that he molested a 10-year-old girl and his 6-year-old brother. In 1987, still at 13 years of age, appellant indecently assaulted a 7-year-old male at the Delta School. In 1989, while at Mathom House, appellant was described as manipulative, bullying, very cruel,

and a predatory pedophile. The following year at Math-om House, appellant was the subject of an investigation of sexual acting out between him and three other residents involving anal sex, mutual masturbation and oral sex. N.T. SVP hearing 9/23/09 p. 12. Later that year, appellant was adjudicated delinquent and was described as being “aggressively homosexual, difficult to handle, and on the prowl for any sexual activity that may come his way.” N.T. SVP hearing 9/23/09 p. 12. Appellant was placed in a program known as LaSaQuick, but was discharged because he had sexual contact with another resident there. As a result, he was placed in the sexual offender program at the Youth Development Center (YDC) in New Castle, PA. N.T. SVP hearing 9/23/09 p. 12. After being released from the YDC program, appellant returned to Mathom House, where there were allegations that he attempted to seduce a 13-year-old boy who was in treatment with him. In 1993, Mathom House staff described appellant as “an entrenched pedophile” and stated that he “shows no interest in surrendering his arousal to children.” N.T. SVP hearing 9/23/09 pp. 12-13. Eventually, appellant was removed from Mathom House because he persisted in “grooming and seductive attentions” to yet another 13-year-old child. N.T. SVP hearing 9/23/09 p. 13.

While at Mathom House, appellant underwent a plethysmographic evaluation, which involves placing a ring around the subject’s penis and then showing either nonpomographic pictures or audiotapes of sexual situations. N.T. SVP hearing 9/23/09 p. 13. This evaluation revealed appellant’s highest reaction was to 6- and 7-year-old females, and his second highest reaction was to 10- and 11-year-old males. A report generated from this testing indicated appellant’s preferred sexual partners are children. N.T. SVP hearing 9/23/09 p. 13. While at Mathom House, appellant insisted that he did not want his deviate arousal totally removed and that some arousal would serve as a reminder of the dangers of reoffending; this indicated to Mathom House that appellant was a fixated pedophile. N.T. SVP hearing 9/23/09 pp. 13-14.

In 1995 at age 22, he was arrested by Warrington police for interacting or “playing” with 9- and 10-year-old children. At that time, appellant indicated that he had been molesting children since he was 12 or 13 years old and that he preferred children between 8 and 13 years of age. N.T. SVP hearing 9/23/09 p. 14. Appellant further admitted that he touched children inappropriately and enjoyed licking their genitals. N.T. SVP hearing 9/23/09 p. 14. Appellant admitted to possessing photos of naked children and claimed he was collecting a book to show others the evil of our society in promoting child pornography. N.T. SVP hearing 9/23/09 p. 14. In 1997, appellant was arrested for biting a 9-year-old in the crotch area and again for grabbing the buttocks and breast area of another child.

Based on the above history, Dickson testified that appellant met the Diagnostic and Statistical Manual of Mental Disorders, fourth edition, for the mental abnormality of pedophilia. N.T. SVP hearing 9/23/09 p. 10. Dickson stated that the mental abnormality of pedophilia predisposed appellant to commit sexually violent offenses:

“When a person is properly diagnosed as a pedophile, it means that they have a strong sexual orientation towards children. It may not be exclusive, meaning that a pedophile may be able to engage in sexual relations with age-appropriate males or females, but it means that their primary orientation is toward children. It is the mental abnormality that drives the predatory behavior. When a person is properly diagnosed, which is in this case as a pedophile, it means that they are in danger for continuing acting-out predatory behaviors for the rest of their lives.” N.T. SVP hearing 9/23/09 p. 16.

Dickson then testified that appellant additionally has a predisposition for predatory behavior and would forever be a danger to the children of our society. N.T. SVP hearing 9/23/09 p. 17.

This court found the testimony of Dickson credible and accepted it in its entirety. N.T. SVP hearing 9/23/09 p. 38. Based on the facts of the current offense, appellant’s prior offense history, characteristics of the appellant, and his propensity to reoffend, this court found that the Commonwealth had met its burden and classified appellant as a sexually violent predator. N.T. SVP hearing 9/23/09 pp. 38-43.

At the sentencing hearing, which immediately followed, defense counsel introduced evidence of appellant’s childhood, including information that appellant himself had been a victim of physical and sexual abuse starting at age 8. N.T. sentencing 9/23/09 p. 4. There was also information that appellant was exposed to pornography at an early age and lacked the proper parental supervision. N.T. sentencing 9/23/09 p. 5. Defense counsel also stated that appellant’s two children were placed in foster care in 2003 and adopted out, thereby terminating appellant’s parental rights. N.T. sentencing 9/23/09 p. 5. It was further indicated that appellant had suffered bullying during his junior high and high school years and has been diagnosed with PTSD and ADHD. N.T. sentencing 9/23/09 pp. 5-6. Appellant then exercised his right to allocution and after detailing his childhood for the court, appellant stated the following:

“Child pornography, I don’t like that stuff, sir. I really don’t. What made me think I was going to stop child pornography? And that’s really what I wanted to do. I wanted to do something good for a change....

“Instead of saying, ‘Yo,’ going to Corporal Long or going to the police and saying, ‘Look, I found this on my computer; I don’t like it,’ instead I went and got stupid. I thought I was going to stop child pornography. I was without medication, I was without any treatment and all that stuff. I lost it. I lost all realities of life. You want to believe me, your honor, you can. If you don’t, either way. That’s how I feel. I wanted to do something good for a change. I wanted to do something good. I can’t change the world. I wanted to change the world....

“I thought I could change things. It’s more than wrong, it’s unethical, it’s wrong, and always I see, every kid I saw in there I saw my daughter’s face and son’s face.” N.T. sentencing 9/23/09 pp. 11-13.

This court found appellant’s statement insincere and unpersuasive. While this court took into consideration the tragic nature of appellant’s childhood, it was outweighed by appellant’s substantial criminal history, his failed attempts at treatment, his lack of remorse for the victims of child pornography, and the permanent danger appellant poses to the children of the community demanded a period of total incarceration. In sentencing appellant, this court stressed the gravity of these crimes by saying:

“You are without hesitation in my mind a danger to the community. I think if I check my notes, Mr. Dickson said that you cannot be cured, that you are predisposed to commit these crimes, that you are a permanent danger to children in our society. I don’t think a stronger statement could be made about an individual who has ever appeared in my courtroom. Because of you there’s a market for this stuff. Children are being abused everywhere, as you point out, in other countries, and they’re being victimized by people because people like you watch it. You have, whether you want to admit it or not, contributed to the emotional destruction of those children that are in those images. Do you understand what I’m saying?

“They’ve been victimized and they will bear the scars of that victimization for the rest of their lives, much like you have. You’ve been victimized. But they’ve been victimized because people like you collect it, they watch it, they find self-gratification by watching it and having it. You have victimized, contributed to the victimization of these children.

“I find that a sentence, based upon all of these reasons, based upon the facts of this case and the testimony of Mr. Dickson, that a period of total incarceration is necessary in order to protect the community. To do otherwise would depreciate the seriousness of the offense.” N.T. sentencing 9/23/09 pp. 26-27.

Accordingly, appellant was sentenced to nine to 21 years in a state correctional institution with 19 years of probation to run consecutive.

At his reconsideration hearing, appellant stated that at his previous sentencing hearing, he had misrepresented his reasons for possessing the child pornography. N.T. 11/25/09 p. 6. Appellant related that he lied because he was upset after hearing Mr. Dickson’s testimony and because his family failed to show up to support him. N.T. 11/25/09 p. 7. Appellant also reiterated the impact that his childhood had on him. N.T. 11/25/09 pp. 4-5. Appellant stated that he was there to take full responsibility for his actions and that this court had made an impression on him when we stated that viewing child pornography was not a victimless crime. N.T. 11/25/09 pp. 5-6. At that time, this court expressed reservations about the statements being made by appellant, but did note that the appellant was beginning to show signs of remorse and a “grain of sincerity.” However, as expressed to appellant, there is no doubt in this court’s mind that appellant could still not be cured and remained a danger to the children of society. After taking into consideration all of the evidence presented at the S VP hearing and sentencing, along with appellant’s statements made at the resentencing hearing, this court vacated the sentence imposed on September 20, 2009 and resentenced appellant as follows: three-and-a-half to seven years in a state correctional facility on Count 1; two to seven years in a state correctional institution on Count 2; two to seven years in a state correctional institution on Count 3; seven years probation on Count 21 and; five years of probation on Count 31. These sentences were ordered to run consecutive to, and not concurrent to, one another for a total of seven-and-a-half to 21 years in a state correctional facility followed by 12 years probation. N.T. 11/25/09 pp. 21-22.

DISCUSSION

Appellant first contends that this court abused its discretion when fashioning appellant’s sentence by not considering the mitigating evidence. It is well-established law that the sentencing function is a matter vested in the sound discretion of the trial court whose judgment will not be disturbed by an appellate court in the absence of an abuse of discretion. Commonwealth v. Green, 494 Pa. 406, 431 A.2d 918 (1981); Commonwealth v. Meo, 362 Pa. Super. 328, 524 A.2d 902 (1987), allocatur denied, 516 Pa. 632, 533 A.2d 91 (1987). When reviewing sentencing matters, great weight must be given to the sentencing court as it is in the best position to view the defendant’s character, displays of remorse, defiance or indifference, and the overall effect and nature of the crime. Commonwealth v. Fries, 362 Pa. Super. 163, 523 A.2d 1134 (1987), allocatur denied, 515 Pa. 619, 531 A.2d 427 (1987).

At both his sentencing and reconsideration hearing, appellant offered the following mitigating evidence: Appellant had been a victim of physical and sexual abuse beginning at age 8; appellant was exposed to pornography at an early age; appellant lacked proper parental supervision; appellant was bullied during junior high school and high school and; appellant’s two children were placed in foster care and later adopted out, thus terminating appellant’s parental rights. Furthermore, appellant accepted responsibility for his crimes at the reconsideration hearing. In fashioning a sentence, this court took all of these factors into consideration. As the above-quoted passage illustrates, we acknowledged that appellant’s childhood was nothing short of tragic and that he, himself, had been victimized. We also acknowledged appellant’s willingness to accept responsibility for his crimes at his reconsideration hearing and reduced his sentence because of this. However, this court was, and remains to be, very troubled by the length of appellant’s criminal history, the number of victims he has offended against, the numerous failed attempts at rehabilitation, appellant’s own statement that he did not want to be fully rehabilitated, and the testimony of Dean Dickson, wherein he stated that appellant would be a permanent danger to the children of our society. It is for all of above reasons that a sentence of seven-and-a-half to 21 years of incarceration followed by 12 years of probation was imposed on appellant, and appellant’s claim of abuse of discretion fails.

Appellant next avers that the evidence presented at the SVP hearing was insufficient to establish by clear and convincing evidence, that appellant is a sexually violent predator. A thorough review of the records indicates that the evidence presented by the Commonwealth at the SVP hearing held before the undersigned on September 23, 2009 establishes, by clear and convincing evidence, that appellant is a sexually violent predator.

A sexually violent predator is defined as “a person who has been convicted of a sexually violent offense as set forth in section 9795.1 and who is determined to be a sexually violent predator under section 9795.4 due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.” 42 Pa.C.S. §9792. Section 9792 goes on to define “mental abnormality” as “a congenital or acquired condition of a person that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons.” “The determination of a defendant’s ... status as a sexually violent predator may only be made after an assessment and hearing before the trial court.” Commonwealth v. Hitner, 910 A.2d 721, 729 (Pa. Super. 2006). At that hearing, the Commonwealth must present clear and convincing evidence sufficient to enable the trial court to determine that each element required by the statute has been satisfied. Commonwealth v. Dengler, 843 A.2d 1241, 1246 (Pa. Super. 2004). “The clear and convincing standard requires evidence that is ‘so clear, direct, weighty, and convincing as to enable the [trial court] to come to a clear conviction, without hesitancy, of the truth of the precise facts [at] issue.’” Commonwealth v. Maldonado, 576Pa. 101, 109, 838 A.2d 710, 715 (2003).

On September 23, 2009, this court heard expert testimony from Dean Dickson of the Sexual Offender Assessment Board. During this testimony, Dickson relied upon, among other things, past police reports, appellant’s past criminal record including his juvenile record, reports from three previous treatment centers, and evidence recovered upon the execution of a search warrant in this instant case to form the opinion that appellant was an SVP. Dickson recounted appellant’s rather extensive criminal record that spanned nearly two and a half decades and included multiple sexual offenses as well as repeated failed treatment programs. During those 25 years, appellant physically offended between 10 and 15 children, and while there was no physical contact for this instant offense, appellant has offended a countless number more through the possession and distribution of child pornography. As early as age 16, appellant was described as a predatory pedophile. Appellant also underwent plethysmographic testing as a teenager, which indicated that appellant’s preferred sexual partners were children.

Dickson concluded that appellant suffers from the mental abnormality of pedophilia, which predisposed appellant to commit sexually violent offenses. Dickson further stated that pedophilia is incurable. It cannot be treated, but can be managed. However, appellant spent most of his teen years in treatment centers for sexual offenders and continues to reoffend well into adulthood. More convincing to this court than the multiple years of failed treatment are appellant’s own statements that he does not want his sexual desires for children to be eliminated. Dickson then opined that a diagnosis of pedophilia predisposes a person to commit sexually violent offenses, and appellant himself has a predisposition for predatory behavior. Dickson concluded that appellant was a permanent danger to the children of society.

The above expert testimony of Dean Dickson, as set' forth by the Commonwealth, is clear and convincing so that this court can conclude without hesitancy that appellant has met the criteria to be classified as an SVP. For these reasons, we find appellant’s claim with regards to this issue meritless.

CONCLUSION

For the foregoing reasons, we find that the issues that appellant has raised in this appeal are without merit.

      . 18 Pa.C.S §6312(c)(1).

      . 18 Pa.C.S. §6312(d)(1).

      . 18 Pa.C.S. §7512(a).

      . 18 Pa.C.S. §5903(a)(l).

      . The parties entered into a stipulation, prior to the testimony, which qualified Mr. Dickson as an expert in the assessment and treatment of adult sexual offenders. N.T. SVP hearing 9/23/09 pp. 3-4.

      . This court notes the discrepancy between this age and the age appellant’s criminal history began, age 12. This is because appellant was not charged with any crimes at age 10, but later admitted to offending at that age.

      . The Delta school is a private school located in the Northeast section of Philadelphia that caters to children with special needs.

      . Mathom House is a treatment facility for adolescent sexual offenders located in Doylestown, Bucks County, PA.

      . LaSaQuick is a residential treatment center located in Lycoming County, Pennsylvania. Residents at LaSaQuick have been adjudicated or court ordered into treatment.

      . A fixated pedophile is one who has an entrenched fixated permanent sexual arousal to children. N.T. SVP hearing 9/23/09 p. 14.

      . Appellant does not contest that he was convicted of a sexually violent offense. Section 9792 goes on to list factors to be considered when an assessor formulates an opinion regarding a defendant’s SVP status. Appellant does not allege that Dean Dickson did not properly consider these factors.

      . The Diagnostic and Statistical Manual of Mental Disorders, fourth edition (DSM) describes pedophilia as, “Over a period of at least six months recurrent, intense sexually-arousing fantasy, sexual urges, or behaviors involving sexual activity with a prepubescent child or children, generally age 13 years or younger, and the fantasy, sexual urges, or behaviors cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. And that the person is at least 16 years and at least five years older than the child or children that are victimized.”


source: Caselaw Access Project

author: JOHNSON, J,

license: Public Domain

text:
    Electroplating Technologies Ltd. v. HH Sumco Inc.

      C.P. of Lehigh County,
    no. 2005-C-1979.

      Gene M. Linkmeyer, for plaintiff.

      Thomas B. Fiddler, for defendant.
    September 24, 2009
   JOHNSON, J,

Before the court for consideration is the defendant, Sumco Inc.’s, motion for post-trial relief filed on May 18,2009 and the plaintiff’s motion for post-trial relief filed on May 28, 2009. The court heard argument on these motions on September 3, 2009.

As discussed more fully below, the defendant’s motion is granted and the plaintiff’s motion is denied.

I. RELEVANT FACTUAL BACKGROUND

This matter involves the plaintiff, Electroplating Technologies Inc.’s (ETL), claims against the defendant, HH Sumco Inc., for (1) misappropriation of trade secrets; and (2) breach of contract. ETL offered three theories under which the jury could have found a breach of contract: (1) breach of contract by unauthorized use of trade secrets; (2) breach of contract for Sumco’s exclusion of ETL from the 2000 test trials; and (3) breach of contract due to Sumco’s failure to complete all three trials contemplated by the May 2000 agreement.

After a two-week trial, the jury returned a verdict finding Sumco liable for breach of contract and awarding ETL $250,000. The jury found Sumco was not liable on ETL’s misappropriation claim. The court entered a molded verdict on May 12, 2009.

II. LEGAL STANDARD

A. Judgment N. O. V.

Ajudgment n.o.v. should be entered when “the movant is entitled to judgment as a matter of law and/or the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of movant.” Schindler v. Sofamor Inc., 774 A.2d 765, 771 (Pa. Super. 2001) (affirming entry of judgment n.o.v.) (quoting Davis v. Berwind Corp., 547 Pa. 260, 266, 690 A.2d 186, 189 (1997)). With the first basis for entering judgment n.o.v., “a court reviews the record and concludes that even with all factual inferences decided adverse to the movant the law nonetheless requires a verdict in his favor.” Id. With the second, “the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.” Id. Both standards require a court to perform the same function — to test the sufficiency of the evidence. Reading Radio Inc. v. Fink, 833 A.2d 199, 210 (Pa. Super. 2003).

B. Molding the Verdict

A court may not mold a verdict where the verdict already expresses the intent of the jury. Maize v. Atlantic Refining Co., 352 Pa. 51, 41 A.2d 850 (1945). A court will mold a jury verdict only where there is error and a manifest clear intent on the part of the jury. Krock v. Chroust, 330 Pa. Super. 108, 478 A.2d 1376 (1984). For example, the court may mold a verdict where the jury’s intention is apparent and undisputed, but informally stated in writing. Gaspero v. Gentile, 160 Pa. Super. 276, 50 A.2d 754(1947).

C. New Trial

A judge considering a post-trial motion can order a new trial pursuant to Pa.R.C.P. 227.1(a)(1) “if he concludes that the factual or legal mistake was made at the trial level and that on consideration of the particular circumstances of the case, the mistake (or mistakes) formed a sufficient basis to order a new trial.” Riccio v. American Republic Insurance Co., 550 Pa. 254, 262, 705 A.2d 422, 425 (1997). When a trial court is deciding whether to grant a new trial, there are two levels of review. Morrison v. Commonwealth of Pennsylvania, 538 Pa. 122, 133, 646 A.2d 565, 571 (1994); Graver v. Klein, 74 D.&C.4th 547, 549 (2000). First, the court must decide whether a “mistake” was made at trial. Id. Secondly, the court decides whether the mistake forms a sufficient basis for granting a new trial. Id. If the trial court answers the first question in a negative, it should answer the second question in the negative as well. Morrison, 538 Pa. at 133 n.7, 646 A.2d at 571 n.7.

III. DISCUSSION

A. Sumco’s Motion for Post-Trial Relief: Judgment N. O. V.

Sumco asserts that it is entitled to judgment n.o.v. in this matter because, as a matter of law, Sumco is not liable to ETL for breach of contract. Additionally, Sumco asserts that the finding of liability and the award of $250,000 are wholly unsupported by the evidence presented at trial. ETL counters that there was ample evidence to support the jury’s verdict.

a. Breach of Contract for Unauthorized Use of Trade Secrets

In further support of its argument that it is entitled to judgment n.o.v., Sumco argues that, because the jury found that Sumco was not liable on ETL’s misappropriation of trade secrets claim, as a matter of law it could not have found Sumco to be liable on the first claimed breach, i. e., the alleged unauthorized use of trade secrets, otherwise the jury’s verdict would be inconsistent. Importantly, ETL’s claim for breach of contract by unauthorized use of trade secrets is identical in all material aspects to the misappropriation of trade secrets claim. See first amended complaint, ¶¶44-47.

Under Pennsylvania law, there is a presumption of consistency with respect to the jury’s findings. See e.g., McDermott v. Biddle, 544 Pa. 21, 25, 674 A.2d 665, 667 (1996). “[Wjhere there is a question of whether jury findings are consistent or inconsistent, consistency will be presumed unless there is no reasonable theory to support the jury’s verdict.” Beyrand v. Kelly, 434 Pa. 326, 329, 253 A.2d 269, 270 (1969).

Based on the fact that the jury found that Sumco was not liable for misappropriation of trade secrets, and on the case law that advises a presumption of consistency in jury verdicts, it is clear to the court that the jury did not find Sumco liable for breach of contract based on this first alleged breach: the alleged unauthorized use of trade secrets.

b. Breach of Contract for Exclusion of ETL From 2000 Test Trials

Sumco argues three bases for its position that there can be no breach of contract for Sumco’s exclusion of ETL from its December 2000 test trials. First, Sumco argues that, as a matter of law, the claim is barred by the four-year statute of limitations, as this claim was commenced in July 2005, more than four-and-one-half years after the alleged breach. Second, Sumco claims that ETL waived this alleged breach, as the uncontradicted evidence at trial established that ETL knew before the December 2000 trials that its principal, James Forand, would not be permitted on the Sumco plant floor, yet notwithstanding that knowledge, ETL proceeded with the trials. Finally, Sumco asserts that, even if the court is not persuaded by the statute of limitations and waiver arguments, ETL failed to present evidence of damages in support of this breach of contract claim based on any theory of recovery.

i. Statute of limitations

Under Pennsylvania law, claims for breach of contractual obligations must be brought within four years of the breach. 42 Pa. C.S. §5525; see Wachovia Bank N.A. v. Rosen, 2004 WL 1593644, *1 (Pa. Com. Pl. 2004).

Based on the testimony presented at trial, ETL knew in December 2000 that Sumco would not permit Forand to be on the plant floor for the December 2000 trials. Forand himself stated that he complained about his being excluded at that time:

“Q: When you were at the facility in December 2000, did you have conversations with Sumco personnel?

“A: Yes.

“Q: Who?

“A: Tom Flom. Tom Horn and Jeff Perkins.

“Q: Did you have discussions about the pilot program?

“A: Yes. I protested not being able to go in.” Forand N. T., 04/28/09, pp. 152-53.

ETL did not commence this action until July 2005, over four-and-one-half years after the alleged breach. Consequently, the court finds that ETL’s claim that Sumco breached contractual obligations under the interim license agreement by excluding Forand from those trials violated the statute of limitations and was untimely filed.

ii. Waiver

Parties to a contract may waive or modify the provisions of a contract either expressly or implicitly. Trustees of First Presbyterian Church of Pittsburgh v. Oliver-Tyrone Corp., 248 Pa. Super. 470, 476, 375 A.2d 193, 196 (1977); PennDOT v. IA Construction Co., 138 Pa. Commw. 587, 596, 588 A.2d 1327, 1331 (1991); Black Top Paving Co. v. PennDOT, 77 Pa. Commw. 612, 616-17, 466 A.2d 11 A, 776-77 (1983). A waiver is evidenced by the parties’ words, writings, conduct, or all three. See id. The uncontradicted evidence at trial, including the excerpt from Forand’s testimony above, established that ETL knew before the December 2000 trials that Forand would not be permitted on the plant floor. Notwithstanding that knowledge, ETL decided to proceed with the trials. Therefore, it appears to the court, based on Forand’s own testimony, that ETL waived any alleged breach.

iii. Failure to prove damages

A plaintiff bears the burden of proving its claimed damages to a reasonable certainty. Contract damages “may not be awarded when the evidence leaves the trier of fact without any guideposts except his or her own speculation. The party seeking damages must introduce specific evidence to permit a reasonably certain estimate of the amount lost due to the breach.” Merion Spring Co. v. Muelles Hnos. Garcia Torres, S.A., 315 Pa. Super. 469, 486, 462 A.2d 686, 695 (1983); Commonwealth Trust Co. v. Hachmeister Lind Co., 320 Pa. 233, 181 A. 787 (1935) (cited in Subcommittee Note to Pennsylvania Suggested Standard Jury Instruction 15.26 — Damages Generally).

Damages are speculative if the uncertainty concerns the fact of damages, not the amount of damages. Pashak v. Barish, 303 Pa. Super. 559, 562, 450 A.2d 67, 69 (1982) (holding that plaintiff was not entitled to recovery because the right to such recoveiy was entirely speculative); see also, Cohen v. Pelagatti, 364 Pa. Super. 573, 576, 528 A.2d 657, 658 (1987); Penn State University/PMA Insurance Group v. W.C.A.B. (Hensal), 911 A.2d 225, 232-33 (Pa. Commw. 2006).

ETL’s only damages evidence pertained to its trade secret misappropriation claim. ETL’s expert, David Sugg, testified that he performed a reasonable royalty rate analysis to determine the value of ETL’s intellectual property allegedly used by Sumco. See generally, Sugg N.T., 05/01/2009. But neither Sugg nor any other witness testified that ETL sustained any damages as a result of the failure to allow Forand to witness the December 2000 trials or the failure of Sumco to complete the trials. Therefore, in reviewing the record, it is clear to the court that there is no evidentiary support for the $250,000 award against Sumco on ETL’s breach of contract claim related to Sumco’s refusal to allow Forand on the floor for the December 2000 test trials.

c. Breach of Contract for Failure To Complete Trials

As explained more fully in section ii(3) above, ETL failed to present evidence of any damages other than those allegedly attributable to the use of trade secrets.

Therefore, with great reluctance, the court finds that the jury committed an error of law when it found Sumco liable on ETL’s breach of contract claim. First, a finding that Sumco is liable under the theory of breach of contract for misuse of trade secrets is inconsistent with a finding that Sumco is not liable on the misappropriation of trade secrets claim. Second, notwithstanding the statute of limitations and waiver arguments, ETL failed to meet its burden of proving any damages for the alleged breach of contract based on either the exclusion of Forand from the December 2000 test trials or on Sumco’s failure to complete trials. Therefore, ETL did not meet its burden of proving the damages necessary to establish a prima facie breach of contract claim and the jury’s award of $250,000 is unsupported by any evidence adduced at trial.

For all of these reasons, the defendant, Sumco Inc.’s, motion for post-trial relief is hereby granted and the jury’s verdict finding Sumco liable for breach of contract is overturned and judgment on this issue is hereby entered in favor of the defendant, Sumco Inc., and against the plaintiff, Electroplating Technologies Inc.

B. Plaintiff’s Motion for Post-Trial Relief

ETL has two bases for its motion. First, ETL argues that it is entitled to a new trial as a matter of law because the court erred by permitting the testimony of Sumco’s experts, Mr. Altmayer and Mr. Urbanchuk at trial. Second, ETL argues that the jury’s damage award of $250,000 must be modified to reflect the time frame over which the alleged breach of contract occurred, i.e., from 2001 to the present. Therefore, argues ETL, the appropriate award should be $2,250,000, reflecting damages for nine years of breach. The court is not persuaded by ETL’s arguments.

a. New Trial: Permitting Sumco’s Experts To Testify

For discussion of this issue, it is necessary to review the relevant procedural history of this case, much of which is recited from the documents provided as exhibits to the parties’ briefs in support of, or in opposition to, this motion.

On July 31,2007, this court issued a case management and trial attachment order which, among other things, set the discovery deadline for March 1, 2008. Sumco noticed a corporate designee deposition of ETL, but ETL failed to appear for this deposition. After repeated attempts to reschedule that deposition, Sumco filed a motion to compel ETL’s deposition.

On February 28,2008, ETL moved to extend the discovery deadlines and, by order dated March 14, 2008, this court granted ETL’s request and entered revised case management deadlines, requiring discovery to be completed on or before July 1, 2008. The March 14, 2008 order also provided that ETL’s expert reports were to be submitted by August 1,2008 and Sumco’s expert reports were to be submitted by September 1, 2008.

On March 19,2008, Sumco responded to ETL’s second set of interrogatories and in response to ETL’s expert interrogatory, Sumco stated that “Sumco has not yet determined if any experts will be utilized at trial.” See Sumco’s objections and responses to ETL’s second set of interrogatories, dated March 19, 2008.

In or about late May or early June 2008, ETL retained new counsel, which entered its appearance in this case on June 3, 2008. On July 28, 2008, ETL again moved this court to extend the case management deadlines. Sumco opposed this request, and this court denied ETL’s motion.

In late July 2008, ETL requested Sumco agree to an extension for ETL to submit its expert report. Sumco agreed, conditioned only upon ETL granting Sumco a similar courtesy if needed, as in all prior case management orders, Sumco’s deadlines to submit expert reports was 30 days after ETL’s deadline to do so. ETL promised to produce its final report on or before August 29, 2008.

On August 29, 2008, ETL produced an incomplete expert report to Sumco. According to ETL’s counsel, ETL’s expert, David J. Sugg, still needed to finalize portions of his report. ETL provided Sumco with the final portion of Mr. Sugg’s report, which provided Sugg’s damages analysis, on September 18, 2008, nearly three weeks after the agreed upon deadline.

On September 26,2008, Sumco requested a two-week extension to submit its expert report. ETL agreed to that request. On October 13,2008, Sumco produced the report of its liability expert, Frank Altmayer. This expert report was submitted to ETL within the time frame agreed upon by the parties and nearly six-and-a-half months before the April 28, 2009 trial.

Because ETL served its damages report three weeks after ETL submitted its liability report, Sumco’s rebuttal damages report was due three weeks after the date that Sumco submitted its rebuttal liability report, i.e., on or before November 3,2008. On October 29,2008, Sumco’s counsel requested an additional four days to submit its rebuttal damages report, i.e., until November 7, 2008. ETL’s counsel agreed to this deadline. Sumco submitted its rebuttal report of its damages expert, Gregory Urbanchuk, to ETL on November 7, 2008, approximately five-and-a-half months before the April 28, 2009 trial.

On October 16,2008, ETL moved to preclude Sumco’s liability expert, Frank Altmayer from testifying at trial, contending that his name was disclosed in an untimely manner. On November 13, 2008, ETL filed an identical motion to preclude Sumco’s damages expert, Greg Urbanchuk from testifying. At oral argument on ETL’s motion in limine to exclude Urbanchuk’s testimony, ETL failed to articulate any prejudice that it sustained as a result of Sumco’s supposedly untimely disclosure of its damages expert witness. This court denied both motions.

ETL now seeks a new trial, alleging this court erred in not precluding Sumco’s expert witnesses from testifying. Flowever, it appears to the court that, based upon the above procedural facts and the documents in support thereof, ETL’s argument that Sumco’s experts should have been precluded arises out of Sumco’s agreement to give ETL additional time to produce its expert report. Having requested Sumco’s consent to an extension of time to produce its own expert report conditioned only on Sumco getting a reciprocal extension, a condition to which ETL agreed, and because ETL was not prejudiced by the court allowing Sumco’s experts to testify, ETL’s arguments appear to be without merit, as explained more fully below.

i. Pennsylvania Rule of Civil Procedure 4003.5(a)(3)

First, it appears to the court that Sumco did not have any obligation to disclose the names of its expert witnesses until it knew that they would be testifying experts. Pennsylvania Rule of Civil Procedure 4003.5(a)(3) provides:

“A party may not discover facts known or opinions held by an expert who has been retained or specifically employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial . . . .” Pa.R.C.P. 4003.5(a) (3).

The purpose of Rule 4003.4(a)(3) is to encourage parties to freely and openly consult with experts by minimizing the likelihood that the information provided to the expert and the opinions that the expert forms may be used against the party or parties who obtained or employed the expert. Goldblum v. Insurance Company of North America, 11 D.&C.3d 354, 356 (1979). In the absence of exceptional circumstances, a party cannot be compelled to disclose in answers to interrogatories facts known or opinions held by non-witness experts whom it may have consulted. See generally, Philadelphia Electric Co. v. Nuclear Energy Liability-Property Insurance Association, 10 D.&C.3d 340 (1979) (providing that, in the absence of exceptional circumstances, a party cannot be compelled to disclose, in answer to interrogatories, the facts known or opinions held by non-witness experts whom it may have consulted).

ii. Supplementation of interrogatories

Second, Sumco supplemented its responses to interrogatories when it produced its report of its liability expert, Frank Altmayer, on October 13, 2008 and the report of its damages expert, Greg Urbanchuk, on November 7, 2008. According to Sumco’s representations to this court, it did not determine whether it would use Altmayer and/or Urbanchuk as testifying experts or consulting experts until it received their reports and learned what their opinions would be.

“Logically speaking, a [party] cannot secure the services of an expert for the purposes of rendering an opinion until the [party] has secured sufficient information on the basis of which the expert may opine.” Royster v. McGowen Ford Inc., 294 Pa. Super. 160, 166-67, 439 A.2d 799, 803 (1982).

iii. Requested sanctions re: expert reports

Pennsylvania appellate courts consider the exclusion of expert testimony as a “drastic sanction.” See e.g., Royster v. McGowen Ford Inc., 294 Pa. Super. 160, 169, 439 A.2d 799, 804 (1982) (quoting Gill v. McGraw Electric Co., 264 Pa. Super. 368, 382, 399 A.2d 1095, 1102 (1979)). Only in extreme circumstances will courts impose sanctions upon a party who is found to have prejudiced another party by its failure to provide its expert report or otherwise identify its expert. See e.g., Freeman v. Maple Point Inc., 393 Pa. Super. 427, 436, 574 A.2d 684, 689(1990).

In order to obtain a sanction as a result of another party’s “failure seasonably to disclose the identity of an expert witness and the substance of the expert’s report, prejudice to the complaining party must be shown.” Royster v. McGowen Ford Inc., 294 Pa. Super. 160, 168, 439 A.2d 799, 804 (1982). When a party has not acted in bad faith and has not misrepresented the existence of an expert expected to be called at trial, “no sanction should be imposed unless the complaining party shows that he has been prejudiced from properly preparing his case for trial as a result of a dilatory disclosure.” Id. at 169-70, 439 A.2d at 804 (1982). (footnote omitted)

As the above facts demonstrate, Sumco provided its expert reports to ETL approximately six months before trial. At oral argument on ETL’s motion in limine to exclude Urbanchuk, ETL’s counsel was unable to articulate any reason that ETL was prejudiced by Sumco’s allegedly late disclosure. See oral argument on motions in limine, N.T., 04/27/09, pp. 56-57.

In the brief in support of its post-trial motion, ETL for the first time states a prejudice argument; namely, ETL claims that it sustained prejudice because it “played by the rules” and Sumco did not. See plaintiff’s brief in support of post-trial relief, p. 19. ETL asserts that “Sum-co’s violation of the rule allowed them to prejudice ETL by turning [ETL’s] compliance with the rule into the theory of [Sumco’s] own defense.” See plaintiff’s brief in support of motion for post-trial relief, p. 21.

Specifically, ETL argues that “Sumco’s defense was based upon the disparity in the number of trade secrets claimed in the pleadings and the number claimed at trial.” Id. at p. 20. ETL argues that, because it chose to identify Sugg as its expert witness in response to Sumco’s interrogatories, it was “forced it to stake its ground, during discovery, as to who would be its testifying expert.” Id. at pp. 18-19. Sugg, however, after evaluating the information, concluded and testified that only five out of 13 of ETL’s previously claimed and pled trade secrets met the standard to constitute actual trade secrets. Id. at p. 19. Based on this disparity, states ETL, Sumco argued that Forand was unbelievable and unknowledgeable in the electroplating field, an argument that prejudiced ETL. Id. at p. 20.

First, upon review of the record in the matter, this disparity argument was just one facet of Sumco’s defense. Second, the court notes that, even if Sumco had identified its experts at the close of discovery, it still could have argued that the trade secrets claimed at trial differed from those in the plaintiff’s pleadings. Finally, and most importantly, however, it appears to the court that, even if ETL had been prejudiced by its choice to disclose Sugg’s name early, that does not equate to prejudice from Sumco’s failure to disclose the names of its experts earlier than it was required to do. As a matter of law, ETL could not have sustained prejudice from Sumco doing what it was legally entitled to do.

Sumco’s arguments against the preclusion of their experts’ testimony appeared reasonable at the time the court denied ETL’s motions in limine to exclude the testimony of Mr. Altmayer and Mr. Urbanchuk and still appear so now. Additionally, the court was not, and is not, persuaded that ETL sustained any prejudice because Sumco did not disclose the names of its experts by the close of fact discovery. Therefore, for all of the foregoing reasons, ETL’s motion for a new trial is denied.

b. Molded Verdict

As stated above, the jury in this matter awarded ETL $250,000 in damages for Sumco’s alleged breach of contract. ETL argues, “the damage amount awarded by the jury is the amount due ‘annually’ under the license agreement entered into pursuant to the May 1, 2000 contract between ETL and Sumco.” Memorandum of law in support of plaintiff’s motion for post-trial relief atp. 13.

The only evidence ETL provided regarding damages was as to the misappropriation of trade secrets claim, for which the jury found no liability. Therefore, as a preliminary matter and harkening back to Sumco’s motion, it appears that the verdict award is not based on any evidence, as, again, there was no damages evidence provided as to the breach of contract claim.

However, even if there were damages evidence presented on the breach of contract claim, the court may mold the verdict only in “extremely exceptional cases” and only “to make the corrected verdict conform to the obvious intention of the jury, i. e., to conform to a verdict actually rendered, but informally or improperly stated in writing.” Commonwealth v. Dzvonick, 450 Pa. 98, 104 n.4, 297 A.2d 912, 914 n.4 (1972). The verdict slip in the case clearly and unequivocally stated that the jury’s intent was to award ETL $250,000 on its breach of contract claim. The jury did not make any notation or comment to evidence that they intended their award to be on a yearly basis.

The court will not take the drastic step of molding this jury’s verdict to reflect an intention that they in no way reflected, and for which there is no basis. Therefore, ETL’s motion to mold the verdict is denied.

IV. CONCLUSION

For the foregoing reasons, the defendant, HH Sumco Inc.’s, motion for post-trial relief is granted and the jury’s verdict finding liability on behalf of Sumco Inc. on the breach of contract claim of Electroplating Technologies Inc. is hereby overturned and judgment is entered in favor of the defendant, Sumco Inc., and against the plaintiff, Electroplating Technologies Inc., on the breach of contract claim. The plaintiff’s motion for post-trial relief is denied.

ORDER

And now, September 24,2009, upon consideration of the defendant, HH Sumco Inc.’s, motion for post-trial relief filed on May 18,2009 and the plaintiff’s response thereto and the plaintiff’s motion for post-trial relief filed on May 28, 2009 and the defendant’s response thereto and after argument on both motions;

It is hereby ordered, for the reasons set forth in the accompanying memorandum opinion, that the defendant’s motion is granted and the jury’s verdict finding the defendant, HH Sumco Inc., liable on the breach of contract claim is hereby overturned and judgment is entered in favor of the defendant, HH Sumco Inc., and against the plaintiff, Electroplating Technologies Ltd., on the plaintiff’s breach of contract claim; and it is further ordered, for the reasons set forth in the accompanying memorandum opinion, that the plaintiff’s motion is denied.


author: CARPENTER, J,

text:
    U.S. Bank v. Cox
    C.P. of Montgomery County,
    no. 2008-00848.

      Michael T. McKeever, for plaintiffs.

      Jon D. Fox, for defendants.
    March 4, 2010
   CARPENTER, J,

FACTUAL AND PROCEDURAL HISTORY

Defendants/appellants, Brigitte Cox and Robert B. Cox, appeal from the December 18, 2009 order, which granted the second motion for summary judgment in mortgage foreclosure filed by plaintiff/appellee U.S. Bank, National Association as trustee for TME MLMI SURF Trust Series 2006-BCI.

Plaintiff initiated this action by filing a complaint for mortgage foreclosure on January 11, 2008. Plaintiff’s complaint alleges that on August 5, 2005, defendants executed a mortgage in favor of Mortgage Electronic Registration Systems Inc., Acting Solely as Nominee for Mortgaged: Inc. Complaint ¶3. The mortgage was subsequently assigned to plaintiff. Id. at ¶3. Defendants are the mortgagors and real owners of the mortgaged premises located at 309 Stout Road, Ambler, PA 19002, and the mortgage went into default when the defendants failed to make their monthly payments on June 1,2007. Id. at ¶¶2,5. According to the complaint, defendants owe a principal balance of $466,505.71, plus interest, attorney’s fees, late charges, costs of suit and title search and escrow deficits for a total amount of $513,322.08. Id. at ¶6.

On April 18, 2008, defendants filed an answer to the complaint. Defendants denied that they made and executed the mortgage upon the property described in plaintiff’s complaint, stating that “[w]e are without sufficient information to affirm or deny this averment and therefore deny same and demand strict proof at time of hearing.” Answer ¶3. Defendants also denied that the mortgage is in default, stating that “[t]his averment is a conclusion of law and as such requires no answer. Accordingly, strict proof is demanded at the time of trial. To the contrary, defendants residing at the premises, 309 Stout Road, Ambler, PA 19002, for 20 years deserve the opportunity to remain in their home and work out a payment plan with their mortgage company.” Id. at ¶5. Further, defendants denied the amounts due. Id. at ¶6. Defendants failed to respond to paragraphs 8 and 9 of the complaint which assert that plaintiff is not seeking a judgment of personal liability and that notice of intention to foreclose and notice of homeowners’ emergency mortgage were provided, respectively. Complaint ¶¶8, 9.

On June 18, 2008, plaintiff filed its first motion for summary judgment, to which defendants filed an answer and new matter. Defendants’ answer denied all averments contained in the motion for summary judgment including, the identity of plaintiff, the identities of defendants, the date on which plaintiff filed the complaint and the date on which defendants filed an answer to the complaint. Answer to plaintiff’s motion for summary judgment ¶¶1 - 4. In the new matter, defendants disputed the amounts claimed to be due, insisted that they be given the chance to conduct discovery and alleged that plaintiff has not dealt in good faith by failing to renegotiate the loan. New matter ¶¶6-8.

On December 10, 2008, oral argument on the motion for summary judgment was held. After argument was presented and the facts of the case were considered, on December 15, 2008, we denied the motion without prejudice to plaintiff’s right to re-file the motion upon the close of discovery that defendants had requested. The order set a time frame in which all discovery should be conducted. Specifically, the order stated that discovery shall be completed within 90 days from the date of the order. Accordingly, the discovery deadline was March 15, 2009.

On January 27, 2009, plaintiff filed an affidavit/certificate of service, certifying that it had served upon defendants interrogatories, requests for admissions and request for production of documents. Because defendants did not respond to these discovery requests, plaintiffs filed a second motion for summary judgment on May 20,2009, which was over two months after the discovery deadline had passed. It is of note that there is no evidence that defendants made any effort to initiate any discovery requests of their own.

On June 12,2009, defendants filed an answer and new matter to the second motion for summary judgment. On that same date, defendants filed their response to plaintiff’s discovery requests. Specifically, defendants’ answer asserted that they had sent interrogatories to plaintiff. Answer to second motion for summary judgment ¶9. Additionally, in the answer defendants deny the amounts due on the mortgage stating that they have not been given proper credit for all mortgage payments due. Id. at ¶¶5, 14(g), 14(i), 14(j), 14(p). However, defendants do not identify what payments or the amount of such payments that they believe were not properly credited towards the mortgage. Further, defendants allege that the filing of the second motion for summary judgment is inappropriate and filed in bad faith as the parties are working on a loan modification agreement. Id. Defendants attached purported proof of ongoing loan modification negotiations as exhibit “A.” Exhibit “A” is entitled “homeowner proposal to remain in the property.” It is a request for a loan modification and was signed and dated by defendants on December 6, 2008. In the new matter, defendants disputed the amounts claimed to be due, alleged that plaintiff has not dealt in good faith by failing to renegotiate the loan and asserted that they deserve to have a trial on the merits. New matter ¶¶16-19.

Oral argument on the second motion for summary judgment was conducted on December 17, 2009. After considering all of the pleadings, defendants’ responses to discovery, briefs submitted by both parties, arguments of counsel and relevant case law, we granted the second motion for summary judgment on December 18, 2009, entering judgment in favor of plaintiff and against defendants in the amount of $513,322.08, plus interest and other costs and charges collectible under the mortgage, for foreclosure and sale of the mortgaged property. On January 7, 2010 defendants filed a motion for reconsideration of the order, which we denied. This timely appeal follows.

ISSUE

I. Whether We Properly Granted Summary Judgment

DISCUSSION

I. We Properly Granted Summary Judgment

Standard

Summary judgment is permitted where there is no genuine issue of material fact and the moving party is entitled to prevail as a matter of law. New York Guardian Mortgage Corporation v. Dietzel, 362 Pa. Super. 426, 429, 524 A.2d 951, 952 (1987). The courts view the record in a light most favorable to the non-moving party. Id. The non-moving party seeking to avoid summary judgment cannot rest solely upon the averments in their pleadings. Washington Federal Savings and Loan Association v. Stein, 357 Pa. Super. 286, 289, 515 A.2d 980, 981 (1986). The non-moving party bears the burden of demonstrating a genuine issue for trial through affidavits, admissions, answers to interrogatories or other specific factual evidence. Id. at 292, 515 A.2d at 983; see also, Pa.R.C.P. 1035(d).

Entry of summary judgment is appropriate in a mortgage foreclosure action whether mortgagors “admit that the mortgage is in default, that they have failed to pay interest on the obligation, and that the recorded mortgage is in the specified amount.” Cunnigham v. McWilliams, 714 A.2d 1054, 1057 (Pa. Super. 1998) (citing Landau v. Western Pennsylvania National Bank, 445 Pa. 217, 225-26, 282 A.2d 335, 340 (1971)). Additionally, averments in a responsive pleading are deemed admitted when not denied specifically or by necessary implication. Pa.R.C.P. 1029; see also, Cercone v. Cercone, 254 Pa. Super. 381, 388, 386 A.2d 1, 3 (1978) (finding defendant was required to specifically deny factual allegations in complaint where defendant is in position to know truth or falsity of allegation). A general denial or demand for proof will be deemed an admission. Id. More specifically, in a mortgage foreclosure action, the mortgagors, aside from the mortgagee or assignee, are the only parties with sufficient knowledge to base a specific denial. Deitzel, at 429, 524 A.2d at 952; see also, Cercone, at 388, 386 A.2d at 4 (“merely averring lack of knowledge is ineffective when it affirmatively appears... defendant had sufficient knowledge on which to base an admission or specific denial.”).

a. Testimony was not required

Defendants have raised eleven issues in their concise statement of errors complained of on appeal. In six of those issues, defendants contend that this court erred in not receiving testimony for various reasons. See concise statement, issues, 1, 2, 3 5, 8, 10. However, a hearing was never requested and was not necessary in order to adjudicate plaintiff’s second motion for summary judgment. Plaintiff filed its second motion for summary judgment, and filed an argument praecipe in accordance with our local rules. As per the normal court procedure, upon the filing of an argument praecipe, the court administrator scheduled the matter for oral argument, not a hearing. Additionally, defendants never made a request for a hearing. Therefore, no testimony was taken. However, both parties had ample opportunity to present their respective positions, arguments and case law, which were all considered before we rendered our decision.

b. Dispute over interest rate

In defendants’ first issue on appeal, they assert that summary judgment was improperly granted because of their allegation that they dispute the interest rate for the mortgage. While is it true that defendants have consistently asserted general denials of the interest rate in their answer to the complaint, answer and new matter to the motion for summary judgment, answer and new matter to the second motion for summary judgment and in their responses to plaintiff’s discovery requests, defendants have failed to offer a specific denial, i.e., defendants have not set forth what they believe to be the correct interest rate, or identify any document which would put the interest rate in dispute. Because defendants, as the mortgagors, are in possession of the information to form a specific denial, a general denial will be deemed an admission. In addition, defendants had ample opportunity to engage in discovery in order to produce any paperwork they might not have had in their possession at the time they answered the complaint or filed their answer to the first motion for summary judgment, in order to make a specific denial at the time they responded to the second motion for summary judgment.

c. Dispute over amount of total mortgage due

In defendants’ second and fifth issues on appeal, defendants allege that summary judgment was improperly granted because they were not given proper and full credit for all of the mortgage payments they made and the total amount of the mortgage is in dispute, respectively. Because these issues raise common concerns, they can be discussed simultaneously.

Based upon the pleadings and discovery responses, we correctly determined that defendants were properly credited with all mortgage payments, and that the amounts due on the mortgage were correctly computed by plaintiff. Although defendants generally denied the amounts due on the mortgage in their answer to the complaint, such denial amounts to an admission because they failed to respond with a specific denial. Defendants are in the best position to know the amount that they believe was not properly credited to their mortgage, or explain why they believe that the amount of the mortgage is incorrect. Additionally, defendants failed to respond with specific facts contradicting plaintiff’s affidavit attached to the first motion for summary judgment, filed by Craig Hanton, the authorized agent for Wilshire Credit Corporation as attorney in fact for and representative for plaintiff, attesting to the amounts due on the mortgage. Rather, in new matter, defendants baldly dispute the amounts claimed to be due. Even after the opportunity for discovery, defendants failed to provide a specific denial in their answer to the second motion for summary judgment. Accordingly, we properly determined that defendants general denials and bald assertions did not raise an issue of material fact.

d. Mr. Cox’s illness was considered

In defendants’ third issue on appeal, they contend that this court should have considered Mr. Cox’s long-term, chronic, painful, near-death year-long health care battle and how it impeded his ability to make mortgage payments. At oral argument for the first motion for summary judgment, Mr. Cox’s counsel did make this court aware of Mr. Cox’s nearly fatal illness. We did consider this at that time, and was in part why we denied the first motion for summary judgment and allowed time for discovery. We also note that defendants did refer to Mr. Cox’s illness in their discovery responses as the reason they were unable to pay their mortgage. This court was aware of the situation.

e. Defendants had ample time to conduct discovery

In defendants’ fourth and eleventh issues on appeal, they contend that additional time to conduct depositions, submit interrogatories or make requests for the production of documents should have been provided; however, defendants did have the opportunity to conduct discovery but chose not to. In fact, we denied the first motion for summary judgment on December 15, 2008, allowing them until March 15, 2009 to conduct discovery. There is no showing on the record that defendants complied with this discovery deadline or that they conducted any discovery at all. Although we acknowledge that defendants did assert in their answer to the second motion for summary judgment that they sent interrogatories to plaintiff, defendants did not file an affidavit of service with this court, they did not they provide this court with a copy of these interrogatories, they did inform this court when interrogatories were sent and whether plaintiff answered or refused to answer these interrogatories. There is simply no showing that defendants engaged in or were in the process of engaging in discovery at the time oral argument for the second motion for summary judgment was conducted.

f. No issues of fact or inferences from those facts remained

In the sixth issue on appeal, defendants allege issues of fact remain or inferences that may be drawn from those facts remain. We disagree, plaintiff established the necessary elements for a foreclosure action, attached a copy of the mortgage, and the defendants, in response, failed to submit any facts to the contrary. Defendants’ pleadings were general assertions unsupported by any facts; accordingly they were deemed admissions.

g. We applied the proper summary judgment standard

Defendants’ seventh issue alleges that this court did not view the record in the light most favorable to the non-moving party. We disagree. We applied the proper summary judgment standard.

h. No evidence of ongoing loan modification negotiations

Eighth, defendants allege that this court should have denied summary judgment because of “ongoing negotiations” for a loan modification. Even if defendants and plaintiff were so engaged, plaintiff has no obligation to modify defendants’ mortgage. Plaintiff is contractually entitled to seek foreclosure, which is what plaintiff chose to do. Additionally, defendants did not show that they were engaged in “ongoing negotiations.” The only evidence defendants presented of ongoing negotiations is a document entitled, “homeowner proposal to remain in the property.” See answer to second motion for summary judgment, exhibit “A.” In this document, defendants made a formal request for a loan modification from Wilshire Credit Corporation. Defendants signed and dated the document on December 6, 2008. This is not evidence of “ongoing negotiations.” Rather, it is evidence that defendants were pursuing a loan modification back in December of 2008, the time the first motion for summary judgment was heard, and a little over a year before the second motion for summary judgment was heard. Further, the denial of the first motion for summary judgment provided defendants an additional year in which to modify their mortgage.

i. Judicial notice of mortgage crisis

In defendants’ ninth issue on appeal they allege that we should have taken judicial notice of the fact that Montgomery County, the Commonwealth of Pennsylvania and the United States of America, are experiencing a “mortgage crisis” and it’s the will of the Montgomery County Commissioners, the Pennsylvania Legislature and the U.S. Congress that all steps be taken by the courts and the parties to avoid foreclosures. While it is true this country is experiencing a mortgage crisis, plaintiff is entitled as a matter of law to summary judgment. It is not up to this court to rewrite plaintiff’s contractual rights, by taking away the remedy that it is legally entitled to.

j. Allegations of “bad faith ”

Tenth, defendants contend that plaintiff was acting in “bad faith” to hasten the time period to foreclose when good faith efforts are being made by both parties to modify the loan. Plaintiff is under no obligation to renegotiate the loan. Plaintiff is legally entitled to seek to foreclose on the property, which it has chosen to do. Additionally, defendants had a year since the denial of the first motion for summary judgment to renegotiate the loan. There has been no hastening of the time period to foreclose.

CONCLUSION

Based on the forgoing analysis, our December 18, 2009 order granting plaintiff’s second motion for summary judgment should be affirmed.


author: SCHMEHL, J.L., P.J.,

text:
    Kerns v. Chiodo
    C.P. of Berks County,
    no. 07-8445.

      Scott Kerns, pro se.

      Gail M. Chiodo, pro se defendant.

      Alexa S. Antanavage, for defendant Reed.
    February 23, 2010
   SCHMEHL, J.L., P.J.,

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Scott Kerns is proceeding in this matter pro se, and is a prisoner at the State Correctional Institution at Mahonoy in Frackville, Pennsylvania. Plaintiff commenced this civil action on August 2, 2007 by filing a complaint with this court. The action was originally filed with five listed defendants, which consisted of: plaintiff’s public defender at his criminal proceeding, Richard A. Joyce; the district attorney from the same proceeding, Tonya Flelaine Tharp; the Muhlenberg Police Department; Gail M. Chiodo, Esquire, and Jamie L. Reed. Plaintiff’s action was, at its core, premised on an ineffectiveness of counsel claim, attempting to overturn his criminal conviction. Plaintiff was sentenced pursuant to a guilty plea, after being charged with involuntary deviate sexual intercourse with a person less than 13 years of age and related charges as a result of numerous instances of sexual abuse of a minor.

Defendants Richard A. Joyce and Tonya Flelaine Tharp filed preliminary objections, and a brief in support thereof, on May 19, 2008. Moving defendants objected based upon: plaintiff’s failure to serve the complaint; failure to state a claim, preclusion of the cause of action due to tolling of the statute of limitations and the bar on a collateral attack on an underlying conviction; and, prosecutorial immunity. A judgment of nonpros was entered in favor of defendant Joyce on May 30, 2008. Then on June 23, 2008, the preliminary objections of Joyce and Tharp were granted, and moving defendants were dismissed from the action with prejudice. On October 23, 2009, defendant Gail Chiodo, Esq. filed a response to plaintiff’s request to enter judgment by default, wherein defendant Chiodo asserted that she had never been served with the complaint.

Defendant Muhlenberg Police Department filed preliminary objections to plaintiff’s complaint on October 24,2008 for failure to serve the complaint, failure to set forth a viable claim, and for the cause of action being barred as a collateral attack on plaintiff’s own criminal conviction. Defendant Muhlenberg Police Department’s preliminary objections were granted on December 1, 2008, and this defendant was dismissed from the action with prejudice.

Defendant Jamie L. Reed filed preliminary objections to the plaintiff’s complaint on July 1,2009, for plaintiff’s failure to effectuate service of the complaint, and for legal insufficiency of the complaint itself. By order of August 6, 2009, this court scheduled argument for September 21, 2009 regarding defendant’s preliminary objections to plaintiff’s complaint. On August 17, 2009, plaintiff filed a petition for writ of habeas corpus ad testificandum, which this court declined to grant.

On August 25,2009, this court entered an order which denied as moot plaintiff’s motion for judgment by default against defendant Jamie L. Reed, due to plaintiff’s failure to file a certification that a written notice of intention to file the praecipe was mailed or delivered to the parties against whom judgment was to be entered.

At argument on September 21, 2009, the only parties present were moving defendant Jamie L. Reed and the other then-remaining defendant, Gail Chiodo. After argument held, this court entered an order which sustained defendant Jamie L. Reed’s preliminary objections, and dismissed with prejudice plaintiff’s complaint against defendant Jamie L. Reed. Further, at argument, defendant Gail Chiodo, Esq. made oral motion to this court that she be dismissed from the action, based upon plaintiff’s failure to effectuate service. On December 3,2009, this court entered an order granting defendant Gail Chiodo’s request made by oral application at hearing on September 21, 2009 to be dismissed from the case. With no defendants then remaining in the action, the order further dismissed the action with prejudice.

Plaintiff filed notice of appeal on December 23,2009, appealing this court’s order which dismissed the action with prejudice. On January 8, 2010, this court entered an order directing plaintiff/appellant to file his concise statement within 21 days of the date of the order, following which plaintiff/appellant filed a timely statement.

II. DISCUSSION

In plaintiff/appellant’s statement of matters complained of on appeal, dated January 24, 2010, plaintiff/ appellant complained of the following matters:

“(1) Plaintiff was denied due process when this honorable court held hearing for defendants in the above-captioned case without plaintiff being present. Plaintiff is incarcerated and denied his right to be heard in court.

“(2) Defendants were dismissed from the complaint with prejudice after not answering the allegations set forth in complaint. Therefore waiving any right to answer allegations that are deemed true [sic].

“(3) This honorable court accepted excuses as to why the allegations were not answered. Rule 1029 (a), (b), (e) states that all allegations are to be answered specifically or will be deemed true.

“(4) Rule 1028 preliminary objections are for facts on complaint that are not true, not excuses.

“(5) This honorable court dismissed all defendants with prejudice from the complaint knowing that they admitted to doing all the allegations and putting an innocent person in prison.

“(6) The plaintiff’s allegations still stand since they were never answered and can never be answered since defendants waived right to answer them.

“(7) Plaintiff respectfully requests that this honorable court not allow this injustice to continue to go on, and revoke the defendants order for dismissal and make the defendants accountable for their actions by granting the plaintiff’s complaint.”

We address the first matter complained of on appeal individually, and then collectively address the six others, which six are largely based on the same allegation.

As to plaintiff/appellant’s first matter complained of on appeal, plaintiff/appellant was not deprived of his constitutional rights when arrangements were not made for him to be present at a hearing of his own initiation. To the contrary, it was incumbent upon plaintiff/appellant to make arrangements to attend the hearing, which was a civil proceeding commenced by plaintiff/appellant, and thus did not raise any deprivation of due process rights. This court does not have a duty to make arrangements for an incarcerated plaintiff/appellant to be present to pursue a civil lawsuit. The plaintiff/appellant additionally could have sought an appearance by videoconference to pursue this action commenced by him. As it stood, this court reviewed all pleadings on their merits, and finding that no party had been properly served with the complaint at any point, found it appropriate this past December to dismiss the action altogether.

As to plaintiff/appellant’s second matter complained of on appeal, this court found that the defendants in this action were never properly served with the complaint, and that it was appropriate for the action to be dismissed. It is axiomatic that the rules regarding proper service of process, set forth in the Pennsylvania Rules of Civil Procedure, must be strictly followed. Township of Lycoming v. Shannon, 780 A.2d 835 (Pa. Commw. 2001). While the courts may be willing to liberally construct materials filed by a pro se litigant, it does not become the duty of a court to ensure that a pro se litigant is following the proper procedure; a pro se litigant takes upon himself the risk that his lack of legal training will be his undoing. Branch Banking and Trust v. Gesiorski, 904 A.2d 939 (Pa. Super. 2006). Further, a trial court has no duty to either effectuate service for a pro se inmate, nor to notify an inmate that it will not effectuate service on the pro se civil litigant’s behalf. Fraisar v. Gillis, 892 A.2d 74 (Pa. Commw. 2006). With proper service never having been effectuated, all defendants were dismissed from the case.

For the above-stated reasons, this court respectfully recommends that the instant appeal be denied.

The prothonotary shall forward the remainder of the file to the Superior Court.


author: PICCIONE, J.,

text:
    Verizon Pennsylvania Inc. v. Lynch
    C.P. of Lawrence County,
    no. 11907 of 2008, C.A.

      Jonathan A. Orie, for plaintiff.

      Paul Lynch, for defendants.
    February 8, 2010
   PICCIONE, J.,

Before this court for disposition is plaintiff’s motion to enforce settlement. The current action arises from a complaint filed on November 26,2008 by Verizon Pennsylvania Inc. (plaintiff) for damage to plaintiff’s underground facilities caused by the excavation activities of Paul Lynch, Paul Lynch Investments Inc. and Star Disposal (defendants). Plaintiff alleged that it suffered damages in the amount of $5,135.16 as aresult of defendants’negligence. On July 9, 2009, after the parties exchanged various pleadings, plaintiff’s counsel spoke on the telephone with defendant Paul Lynch, who acts as counsel for himself and the other defendants. During the telephone conversation, the parties agreed to a settlement where plaintiff would discontinue the lawsuit in exchange for defendants’ payment of $3,000. The parties also discussed the possibility of preparing a release. On that same date, plaintiff’s counsel sent a letter to Mr. Lynch confirming the settlement agreement and requesting that a release and check for $3,000 be sent to plaintiff. On August 25, 2009, after receiving no response, plaintiff’s counsel sent another letter to Mr. Lynch requesting the settlement check. Mr. Lynch failed to respond to the second letter as well. On November 17, 2009, plaintiff filed a motion to enforce settlement, asking the court to enter an order requiring defendants to comply with the terms of the settlement agreement. The court heard arguments regarding the motion on December 7, 2009.

Because settlement agreements reduce burdens on courts and expedite the transfer of money into the hands of complainants, there is a strong judicial policy in favor of voluntarily settling lawsuits. Felix v. Giuseppe Kitchens & Baths Inc., 848 A.2d 943, 946 (Pa. Super. 2004). Settlement agreements are governed by principles of contract law. Mastroni-Mucker v. Allstate Insurance Co., 976 A.2d 510, 518 (Pa. Super. 2009). “There is an offer (the settlement figure), acceptance, and consideration (in exchange for the plaintiff terminating the lawsuit, the defendant will pay the plaintiff the agreed upon sum).” Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, 526 Pa. 541, 547, 587 A.2d 1346, 1349 (1991). If the requirements for a valid contract are met, a court must enforce the terms of the settlement agreement. McDonnell v. Ford Motor Co., 434 Pa. Super. 439, 445, 643 A.2d 1102, 1105 (1994). “This is true even if the terms of the agreement are not yet formalized in writing.” Mastroni-Mucker, 976 A.2d at 518. “Where parties have reached an oral agreement, the fact that they intend to reduce the agreement to writing does not prevent enforcement of the oral agreement.” Kazanjian v. New England Petroleum Corp., 332 Pa. Super. 1, 7, 480 A.2d 1153, 1157 (1984). Even the absence of a signed release does not prevent the enforcement of an otherwise valid settlement agreement. Pulcinello v. Consolidated Rail Corp., 784 A.2d 122, 124 (Pa. Super. 2001).

In the case sub judice, all of the requirements for a valid contract were met. Plaintiff’s counsel made an offer to settle the case for $3,000, and Mr. Lynch acknowledges that he accepted the offer. In exchange for the payment, plaintiff’s counsel agreed to discontinue the lawsuit. Defendants argue that Mr. Lynch revoked his acceptance after learning that he was being sued by plaintiff in another lawsuit. The power to accept can be terminated by a counter-offer by the offeree, a lapse of time, a revocation by the offeror, or incapacity of either party. First Home Savings Bank FSB v. Nernberg, 436, Pa. Super. 377, 388-89, 648 A.2d 9, 15 (1994). “However, ‘[o]nce the offeree has exercised his power to create a contract by accepting the offer, a purported revocation is ineffective as such. ’ ” Mastroni-Mucker, 976 A.2d at 518 (citing Restatement (Second) of Contracts §42, comment c. (1981)). Therefore, defendants’ revocation was ineffective once Mr. Lynch accepted the offer.

Defendants also argue that an agreement does not exist because a release was never prepared and executed. While the preparation of a release was discussed during settlement negotiations, the fact that a release was not executed does not invalidate the settlement agreement. As stated above, the absence of a signed release does not prevent the enforcement of an otherwise valid settlement agreement.Pulcinello, 784 A.2d at 124. Further, arelease was not necessary because the statute of limitations had already run on plaintiff’s cause of action.

The undisputed evidence of record clearly establishes that an enforceable oral settlement agreement was created during the July 9, 2009 telephone conversation between plaintiff’s counsel and Mr. Lynch. In keeping with the judicial policy favoring the voluntaiy settlement of lawsuits, plaintiff’s motion to enforce settlement is granted.

ORDER

And now, February 8, 2010, the court having heard arguments on December 7, 2009 regarding plaintiff’s motion to enforce settlement with Jonathan A. Orie, Esquire, appearing and representing the plaintiff, and Paul Lynch, Esquire, appearing and representing the defendants, the court finds and it is hereby ordered and decreed as follows:

(1) Plaintiff’s motion to enforce settlement is granted, and defendants are ordered to pay to plaintiff the sum of $3,000 within 30 days of the date of this order.

(2) In the event defendants fail to comply with this order, judgment in the amount of $3,000 shall be entered against defendants, jointly and severally, upon motion by plaintiff.

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