author: PICCIONE, J,

text:
    Commonwealth v. Dougalewicz

      C.P. of Lawrence County,
    No. 514 of 2009, C.R.

      Jonathan R. Miller, for Commonwealth

      David H. Acker, for defendant
    February 13, 2013
   PICCIONE, J,

Before the court for disposition is defendant’s supplemental motion to suppress. Ronald Lee Dougalewicz, Jr. (hereinafter, “defendant”) is charged with statutory sexual assault (18 Pa.C.S.A. § 3122.1), aggravated indecent assault (18 Pa.C.S.A. § 3125(a)(8)), corruption of minors (18 Pa.C.S.A. § 6301 (a)(1)), unlawful contact with aminor (18 Pa.C.S.A. § 6318(a)(1)), indecent assault (18 Pa.C.S.A. § 3126(a)(8)), and possession of child pornography (18 Pa.C.S.A. § 6312(d)(1)).

A brief summary of the facts alleged indicates that two juvenile females gave written statements and told Officer Mrozek of the Union Township Police Department of a sexual relationship between the 14-year-old alleged victim and the 37-year-old defendant, the victim’s softball coach. The girls indicated that defendant digitally penetrated the victim’s vagina one night and had unprotected sexual intercourse with the victim the following night. They also stated that defendant and the victim regularly exchanged text messages, including nude and partially nude pictures of the victim. The interview concluded with the girls providing Officer Mrozek with the names of two other juvenile females that may have further information about the relationship between defendant and the victim.

On March 27, 2009, Officer Mrozek interviewed the other two juvenile females, who also gave written statements. One of the girls described an increasingly personal relationship between defendant and the victim. The other girl indicated that defendant and the victim had sex on March 14, 2009. She also confirmed seeing nude photos of the victim that were to be sent to defendant. She also stated that defendant and the victim “supposedly had sex” on another night in a vehicle owned by a family friend and that a police officer stopped the vehicle at some point during that evening. Officer Al DeCarbo of the Neshannock Township Police Department verified that he stopped defendant and a female on March 14, 2009 at 12:54 a.m.

On April 20,2009, a forensic interview of the victim was conducted by Janice Wilson of the Children’s Advocacy Center of Lawrence County. During the interview, the victim disclosed that defendant digitally penetrated her vagina and had sexual intercourse with her. It was also determined from the interview that the alleged crimes did not occur within Union Township. As a result, Officer Mrozek turned over the investigation to the state police. On April 22, 2009, Troopers Harry Gustafson and Troy Steinheiser of the Pennsylvania State Police interviewed the victim. She stated that she visited defendant’s home on March 13, 2009. Later that night, she left with defendant so that defendant could drive her home. On the way, they stopped in a private driveway on Mathews Road, and defendant digitally penetrated her vagina. Shortly thereafter, they left and were stopped by the police. Defendant then returned the victim to his house, where she spent the night. When the victim awoke the next morning, defendant asked her whether they were going to finish what they started, to which the victim replied yes. Later that evening on March 14, 2009, defendant picked up the victim in his Hummer and found a secluded place to park. Both got into the back seat of the vehicle, where they had sexual intercourse. Defendant then drove the victim home. During the interview, the victim stated that she also sent defendant a partially nude photo of herself via cell phone. She indicated that defendant encouraged her to send additional nude photos, and the victim complied. A search of defendant’s phone records confirmed the victim’s account. The victim also stated that she omitted details of the incidents during the interview with Ms. Wilson in order to protect defendant.

On April 27, 2009, Trooper Gustafson filed charges of statutory sexual assault, aggravated indecent assault, corruption of minors, unlawful contact with minor, and indecent assault against defendant. A preliminary hearing was held on May 5, 2009 in which the district judge ordered that the charges be bound over to this court. On September 29, 2009, Trooper Gustafson filed charges of possession of child pornography and corruption of minors against defendant.

On June 1, 2010, the court held another hearing, and the Commonwealth presented the warrants as well as testimony from Officer Mrozek. The Commonwealth’s evidence indicated that Officer Mrozek applied for the first search warrant at docket number MD 23-09 on March 24, 2009. On that same date, Magisterial District Judge Jennifer Nicholson issued the search warrant, and Officer Mrozek sent the warrant to Verizon and Sprint PCS cell phone companies. Sprint received the warrant and issued the phone records for phone number 724-640-7177; however, Verizon “kicked back” the warrant and requested another warrant with the cell phone company’s correct designation, “Célico Partnership d/b/a Verizon Wireless.” Officer Mrozek obtained a second search warrant containing the requested corrections at docket number MD 25-09 on April 1,2009. The warrant was sent to Verizon, which subsequently issued the phone records for phone number 724-674-1064.

The defendant previously filed a motion to suppress arguing that the above warrants were invalidly obtained due to insufficient probable cause. This court denied that motion by order of court and opinion dated June 23, 2010. In that opinion, this court found that the warrants were obtained with sufficient probable cause to satisfy the requirements set forth by the constitutions of this Commonwealth and of the United States. Although the defendant incorporates those arguments in the instant supplemental motion to suppress (hereinafter, the “motion”), this court will not address those particular arguments again. Instead, this court relies on its June 23, 2010 opinion for analysis of those issues.

The defendant filed the instant motion wherein he argues that the search warrants issued to obtain the telephone records were invalid because they were issued for entities outside the territorial jurisdiction of the Commonwealth of Pennsylvania and were therefore in violation of the Stored Communication Act (hereinafter, the “act”), codified at 18 U.S.C. §§ 2701-2712. The defendant argues that the act creates a reasonable expectation of privacy in stored electronic communications, and, as a result, the search warrants violated his rights pursuant to Article I, Section 8 of the Constitution of the Commonwealth of Pennsylvania.

The defendant’s arguments are based upon violations of the act, which provides in relevant part that “whoever ... intentionally accesses without authorization a facility through which an electronic communication service is provided ... and thereby obtains ... authorized access to a[n] ... electronic communication while it is in electronic storage in such system shall be punished as provided” in the act. 18 U.S.A. § 2701(a)(1). The act authorizes the government to require disclosure of stored electronic communications. Id. at § 2703. The defendant first argues that the warrants were issued in violation of the act because they were issued by a magisterial district judge rather a federal magistrate, a federal district court, or an equivalent Pennsylvania court as proscribed in section 2711 of the act.

Even assuming hypothetically that the defendant’s assertions were correct, a violation of the act is of no consequence to the instant motion. The act does not provide for a suppression remedy. See 18 U.S.C. § 2708 (“The remedies and sanctions described in this chapter are the only judicial remedies and sanctions for nonconstitutional violations of this chapter.”); United States v. Smith, 155 F.3d 1051, 1056 (9th Cir. 1998) (“The Stored Communications Act does not provide for an exclusion remedy. It allows for civil damages ... and criminal punishment... but nothing more.”) (emphasis in original); see also U.S. v. Ferguson, 508 F.Supp.2d 7, 10 (D.D.C. 2007); Bansal v. Russ, 513 F.Supp.2d 264, 277 n.6 (E.D. Pa. 2007). As a result, this court will not further address the merits of the defendant’s assertion that the warrants were obtained in violation of the act as it is inconsequential to the instant motion.

The defendant also generally argues that the telephone evidence should be suppressed because the search warrants were issued in violation of Pennsylvania law. The Commonwealth argues, and this court agrees, the warrants were properly obtained using the procedures set forth under the Pennsylvania Rules of Criminal Procedure. Pennsylvania has enacted its own statute to prohibit the illegal access of electronic communication. The Wiretapping and Electronic Surveillance Act (hereinafter, the “WESA”) provides that “ft is an offense to obtain, alter or prevent authorized access to a wire or electronic communication while it is in electronic storage by intentionally: (1) accessing without authorization a facility through which an electronic communication service is provided.” 18 Pa.C.S.A. § 5741(a). Section 5743 of the WESA provides for the requirements for governmental access to the contents of communications in electronic storage. 18 Pa.C.S.A. § 5743. This section provides the following:

(a) Contents of communications in electronic storage. — Investigative or law enforcement officers may require the disclosure by a provider of communication service of the contents of a communication which is in electronic storage in a communication system for:
(1) One hundred eighty days or less only pursuant to a warrant issued under the Pennsylvania Rules of Criminal Procedure.
(2) More than 180 days by the means available under subsection (b).

18 Pa.C.S.A. § 5743(a). Just as the federal act provided for exclusivity of remedies for a violation of the act, the WESA provides that only those remedies and sanctions provided within the WESA are available for a violation. 18 Pa.C.S.A. § 5478. The only remedy the WESA provides for an individual aggrieved by a violation of the statute is a civil action. As a result, suppression of the evidence obtain as a result of a violation of the statute is not available to an aggrieved party. Just as stated above regarding the federal Act, it is inconsequential to the instant motion to discuss the merits of the defendant’s assertion that the search warrants were obtained in violation of Pennsylvania law. Based on the foregoing, the defendant’s supplemental motion to suppress is denied.

ORDER OF COURT

And now, February 13, 2013, these cases being before the court on October 24, 2012 regarding the defendant’s supplemental motion to suppress, with Assistant District Attorney Jonathan R. Miller, Esquire, appearing on behalf of the Commonwealth, and David H. Acker, Esquire, appearing on behalf of the defendant, and upon a complete and thorough review of the applicable record, it is hereby ordered and decreed as follows:

1. The defendant’s supplemental motion to suppress is denied pursuant to the attached opinion.

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


source: Caselaw Access Project

author: PANEPINTO, J.

license: Public Domain

text:
    Sherman v. Marcus & Millichap Real Estate Investment Services, Inc.

      Arthur S. Cavaliere, for petitioner

      David Smith, for respondent
    February 13, 2013
   PANEPINTO, J.

This appeal stems from an arbitration award that was entered by the arbitration panel on October 27, 2009 after three (3) days of proceedings. The panel issued an award for Marcus and Millichap Real Estate Investment Services (“Millichap”) in the amount of $336,875.00, plus post-award interest and, upon further application, attorneys’ fees and costs pursuant to the Exclusive Representation Agreement (“representation agreement”) dated October 22, 2004. This action began upon the filing of a petition to vacate or modify award of arbitration filed by Mark E. Sherman, et al. (“Sherman”).

On December 5, 2009, an affidavit of service of the petition to vacate or modify award of arbitration upon Millichap was filed. Sherman then filed a motion for sanctions on February 26, 2010. The response date was March, 18, 2010.

The case was reassigned to Judge Paul Panepinto on May 17, 2010 and a rule was issued by the court the same day. The rule, after considering the motion for Sanctions, called upon Millichap to show cause why the requested relief should not be granted. The rule returnable was set for June 16, 2010. The same day, May 17th, a rule was also issued by the court concerning the petition to vacate or modify award of arbitration. The rule called upon Millichap to, again, show cause why the relief should not be granted.

On June 9,2010, the motion hearing for the motion for sanctions was rescheduled to August 11, 2010. The same day, the motion hearing for the petition to bacate award of arbitration was also rescheduled to be heard on August 11,2010.

A full hearing on the petition to vacate or modify award of arbitration and the cross petition to confirm arbitration award was held on August 11,2010 and attended by both parties. After the hearing on the underlying issues, an order was entered on September 22,2010 and docketed on September 28, 2010. The order stated that the Petition filed by Sherman to vacate or modify award of arbitration was denied and Millichap’s petition to confirm arbitration award was, in turn, granted. The judgment was entered against Sherman for the specified amount of $339,875.00, plus interest at the annual simple rate of 6% from October 26, 2009, until the award amount is paid. It was further ordered that attorneys’ fees and costs will be awarded in an amount to be later determined by the arbitration panel.

An appeal was made to the Superior Court on behalf of Sherman by his counsel on September 30, 2010 to contest the decision dated September 22, 2010 and docketed September 28, 2010. On July 27, 2012, this appeal was quashed as interlocutory as this court’s September 28, 2010 order did not dispose of all claims in that it remanded the matter to the arbitration panel to set attorneys’ fees. See July 12, 2011 Superior Court opinion.

ALLEGATIONS OF ERROR [renewed]

1. An irregularity occurred in the entry of the aforesaid Arbitration Award which caused the rendition of an unjust, inequitable or unconscionable Arbitration Award, [sic]
2. The Arbitration Award was entered by two of the three arbitrators, [sic]
3. The Arbitration Award was not entered after due deliberations between all three arbitrators, [sic]
4. The Arbitration Award indicates that it was unanimous, however, as stated above, was entered into by only two of the three arbitrators, [sic]
5. The Arbitration Award awarded pre-arbitration interest, contrary to law. [sic]
6. The Arbitration Award did not apportion the amount of the award between the petitioners, Mark E. Sherman, 4504 Pine Street, Inc. and 4600 Spruce Street, Inc. [sic]
7. The entire arbitration award was entered against Petitioner, Mark E. Sherman, only, [sic]
8. Respondent filed an answer to petitioner’s petition raising disputed issues of material fact, however, the Lower court refused to issue a Rule to resolve the disputed issues of material fact in violation of Pa. R.C.P. 206.6 and Pa. R.C.P. 206.7 (c). [sic]
[in addition]
A. All those issues raised above pertaining to the Award of October 27,2009 and the order of September 28, 2010. [sic]
B. The computation of damages in the Award in October 1, 2011 and the order of June 29, 2012 are at variance with the previous award of October 27, 2009 and order of September 28, 2010. [sic]
C. Respondent filed an answer to petitioner’s petition raising disputed issues of material fact, however, the Lower court refused to issue a rule to resolve the disputed issues of material fact in violation of Pa. R.C.P. 206.6 and Pa. R.C.P. 206.7 (c). [sic]

DISCUSSION

As for the first eight (8) allegations of error, this court rests on its prior decision that the arbitration award was properly entered by the arbitrators and that no clear, precise and convincing evidence of fraud or irregularity was shown by Sherman to cause this court to vacate or modify the arbitration award.

Pennsylvania law directs that common law arbitration awards must be confirmed absent “fraud, misconduct, corruption, or other irregularities” that resulted in an “unjust, inequitable or unconscionable” award. See 42 Pa. C.S. § 7341; Harwitz v. Selas Corp. of Am., 178 A.2d 617, 619 (Pa. 1962). Claims of “other irregularities” must be proven by clear, precise and convincing evidence. See Gargano v. Terminix Int’l Co. L.P., 784 A.2d 188, 194 (Pa. Super. 2001). Even mistakes of law and fact cannot serve as a basis to vacate an arbitration award. Parking Unlimited, Inc. v. Monsour Med. Found., 445 A.2d 758, 761 (Pa. Super. 1982).

Sherman appointed Richard A. Guttman, Esq. as his party-appointed arbitrator. Millichap appointed Andrew Gowa, Esq. as their party-appointed arbitrator. The party-appointed arbitrators then chose Thomas B. Rutter, Esq. as the neutral, third arbitrator. Sherman’s party-appointed arbitrator acknowledged in a letter he wrote on October 28, 2009 to the other arbitrators, which was provided by Millichap, that the panel had reached a unanimous decision after deliberation.

Sherman, in his petition and at the hearing held on August 11, 2010, stated affirmatively that they “do not contend that there was any ‘fraud, misconduct, [or] corruption’ in the process of arbitration.” This court’s review of an award of arbitration is “extremely narrow” and Sherman bore the burden of showing the “underlying irregularity and the resulting inequity.” Chervenak, Keane & Co. Inc. v. Hotel Rittenhouse Assocs., Inc., 477 A.2d 482, 485 (Pa. Super. 1984); See also Brennan v. General Accident Fire and Life Assur. Corp., Ltd., 574 A.2d 580, 583 (Pa. 1990) (explaining that, “unless restricted by the submission, the arbitrators are the final judges of law and fact and their award will not be disturbed for mistake of either”).

The letter of October 28, 2010 clearly states that Sherman’s arbitrator “received [the] Proposed Interim Award, which comports with the decision [they] reached unanimously.” It was the arbitrator’s unanimous decision that found against Mark E. Sherman only. The court is limited in its ability to look beyond the award itself and find that the arbitrators did not consider the other respondents in the arbitration. Mr. Guttman’s letter to the other arbitrators brings up the issue of apportionment of the award to the corporate entities in his request for further deliberations, but the award signed by the majority of the arbitrators found against Mark E. Sherman only.

In the end, the two other arbitrators signed the arbitration award finding that Mr. Guttman, Sherman’s arbitrator, absented himself after claiming to be “unavailable” for nearly three (3) weeks. Sherman did not provide any evidence to counter what Millichap provided the court. Sherman failed to carry its burden to show the arbitration award originally reached was not agreed upon unanimously by all three (3) arbitrators, after being properly deliberated, that resulted in an “unjust, inequitable or unconscionable” award. To the contrary, Sherman specifically alleges that the award was not entered as a result of fraud, misconduct, or corruption.

With regard to arbitration awards, Pennsylvania courts have ruled that an “award based upon evidence heard by only two of the arbitrators was a nullity.” Kuzmen v. Kamien, 12 A.2d 471 (Pa. Super. 1940). The facts of this case, however, are not that of Kuzmen. In Kuzmen, it was undisputed that only two (2) out of the three (3) arbitrators heard witness testimony or evidence and only the two (2) participated in the determination of the award in the absence of the third arbitrator. Id. Here, it is undisputed that all three (3) arbitrators were present for the offering of all witness testimony and evidence presented over the three (3) days of proceedings. The third arbitrator, Mr. Guttmann, who ultimately did not sign the award of arbitration in this case, admits in the October 28,2010 letter that they unanimously agreed to the award of arbitration. Therefore, all arbitrators were present for deliberations.

Prior to the commencement of arbitration, Sherman failed to preclude the arbitration panel from addressing any pre-award interest as it being outside the scope of the arbitration agreement. Due to this failure to object to the demand made by Millichap going into arbitration, this court cannot, after the fact, overrule the arbitrators’ decision on the ground that it was not originally part of the representation agreement between the parties. See Brennan v. Gen. Accident Fire and Life Ins. Corp. Ltd., 453 A.2d 356, 357 (Pa. 1982). In any event, it seems clear that Pennsylvania law allows for the awarding of pre-judgment interest in contract cases dating back to the original date of the breach. See Daset Mining Corp. v. Industrial Fuels Corp., 473 A.2d 584 (Pa. Super. 1984).

Appellant is mistaken in his allegation that the computation of damages in the award of October 1, 2011 and this court’s June 29, 2012 order are at variance with the previous award of October 27, 2009 and order of September 28, 2010. Appellant does not dispute that the arbitrators unanimously awarded Millichap $140,000 in fees and costs. Nor has appellant alleged fraud, misconduct, or any other irregularity in the award of fees and costs. For that reason alone this court properly granted Millichap’s cross-petition.

Appellant’s primary argument in opposition to Millichap’s cross-petition is that the $140,000 award of fees and costs is “at variance” with the October 2009 award underlying the existing judgment because the latter did not “award compensatory damages in the amount of $275,000, but included an award of pre-arbitration interest of $61,875...” [sic] See memorandum of law in support of petitioner’s answer to respondent’s counter-petition to confirm and enter amended judgment, p.3 Based on this alleged “variance,” Sherman argues that the $140,000 fee award should not be confirmed and the entire matter remanded back to arbitration. This argument is without merit.

In October 2009, the arbitration panel awarded Millichap a real estate commission of $275,000 plus $61,875 of interest at the statutory rate and fees and costs to be determined later. Appellant petitioned to vacate that award before the arbitration panel could schedule a hearing on the amount of fees and costs to be awarded Millichap. Millichap cross-petitioned to confirm the arbitration award and, on September 22, 2010, this court entered judgment on the arbitration award in the amount of $336,875 (the $275,000 commission, plus $61,875 of interest) and directed the arbitration panel to determine the amount of fees and costs to be awarded to Millichap.

The arbitration panel’s determination of fees and costs was delayed further by a premature appeal by Sherman, which was quashed. Even if there was an inconsistency, it would be of no consequence because once a judgment was entered on the October 2009 award, the arbitration panel was without authority to change it. Indeed, it was Sherman who initiated proceedings in this court before the panel could quantify fees and costs.

Sherman’s claim that the October 2011 award misstates the October 2009 award because the latter “did not award compensatory damages in the amount of $275,000” is simply wrong. The statement in the October 2011 award referencing the $275,000 amount of compensatory damages in the October 2009 award is entirely accurate. The October 2009 award states explicitly that Millichap was awarded “compensatory damages in the amount of $275,000...” The October 2009 award then identified two categories of interest that are to be added to the compensatory award. One category was pre-arbitration interest on the compensatory damage award of $275,000, which the panel calculated to be $61,875. The second category of interest was “additional per diem interest... from October 26, 2009 until the amounts awarded are paid.” There is no “variance” and no basis to revisit the 2009 award.

In any event, the October 2011 award cannot review, change or modify the October 2009 award. On September 22,2010, this court confirmed and reduced to judgment the October 2009 award (“judgment”). This court also rejected Sherman’s motion to strike the judgment. See this court’s September 9, 2011 order. As the judgment is res judicata, it (and the award upon which it was based) cannot be (and could not have been) reconsidered, reviewed, or modified in any way by the arbitration panel. See e.g. Balent v. City of Wilkes-Barre, 542 Pa. 555, 563 (1995).

Sherman argues also that the October 2011 award did not adopt or ratify the October 2009 award because the former does not include a reference to pre-arbitration interest. That argument also lacks merit. The October 2009 award provided compensatory damages and interest in Millichap’s favor. The majority of the arbitration panel signed that award. The October 2011 award found also in favor of Millichap and awarded $140,000 in compensatory damages. The unanimous panel then stated-completely consistent with the prior award-that interest on the “underlying award of compensatory damages,” i.e. $275,000, would accrue from October 27, 2009 and that interest would accrue “on the instant award of fees and costs from 1 October 2011...” [sic] See 2011 arbitration award. There is no discussion of pre-arbitration interest in the October 2011 award because that interest amount had been liquidated previously by the arbitration panel and confirmed and reduced to judgment by this court. Accordingly, there was no need or any reason to revisit that issue in the October 2011 award.

The reason Sherman attempted to argue that the October 2011 award did not adopt or ratify the October 2009 award is simple; Sherman now realizes that his claim that his party-appointed arbitrator did not participate in the deliberations on the October 2009 award is not only baseless but now is moot as well. The fact that the unanimous arbitration panel (including that same party-appointed arbitrator who he alleges did not participate in the October 2009 award) incorporates the October 2009 award means that Sherman cannot now claim that his party-appointed arbitrator was denied the opportunity to participate in the October 2009 award. If that arbitrator had objections to the October 2009 award, then he would not have executed the October 2011 award that incorporates the earlier award.

Sherman’s third argument challenges the calculations that comprise Millichap’s proposed amended judgment. Those calculations are entirely accurate. By its terms, the judgment of $336,875 (the compensatory amount of $275,000 and pre-arbitration interest of $61,875) accumulates interest at the rate of 6% per annum. By its terms, the October 2011 award of $140,000 accumulates interest at 6% from the date of that award, October 1, 2011. When those amounts are added, the total of the two awards, plus interest, equals $512,295.49, with interest accumulating at a per diem rate of $68.22. Sherman does not identify any mathematical errors or any basis to reject or modify Millichap’s calculations and, therefore, those calculations were adopted by this court.

CONCLUSION

Overall, the record shows that the arbitration award was properly entered by the arbitrators in this matter after deliberation and no clear, precise and convincing evidence of fraud or irregularity was shown by the Sherman to cause this court to vacate or modify the arbitration award.

Accordingly, for the reasons stated above, this appeal should be denied.


author: RIZZO, J.,

text:
    Shields v. Philadelphia Housing Authority

      John F. Hanahan and Marc D. Vitale, for plaintiff

      David P. Bateman, for defendant
    February 15, 2013
   RIZZO, J.,

The appellant, To wanda Shields, appeals from this court’s order of August 9, 2012, docketing date of August 14, 2012, that granted the defendant’s motion for summaiy judgment.

PROCEDURAL HISTORY

This is a premises liability action arising from appellant To wanda Shields’ allegations that as a result of the negligence of appellee Philadelphia Housing Authority, appellant suffered a complex fracture of her forearm and wrist. Prior to the filing of her complaint, appellant sent a notice prerequisite to suit to appellee on December 7, 2009. Appellant then sent an amended notice prerequisite to Suit on July 21, 2010. Appellant commenced this action in Philadelphia County by filing a complaint on July 26, 2011. Appellee filed an answer to the complaint and new matter which raised the issue of sovereign immunity on August 25, 2012. Appellant and appellee completed a case management conference on November 1, 2011 and the court issued a case management order, appellant filed a reply to appellee’s new matter on January 7, 2012. Following completion of discovery, appellee filed a motion for summary judgment on August 7, 2012. Appellant filed an answer in opposition to appellee’s motion for summary judgment on September 7, 2012. Appellee filed a sur-reply to said motion for summary judgment on October 2,2012. This court granted appellee’s motion for summary judgment and dismissed plaintiff’s complaint with prejudice on November 2, 2012.

FACTS

Appellant Shields alleges in her complaint that on November 24, 2009, she suffered injuries from a trip and fall on the interior stairs of her apartment unit located at 1810 N. 25th Street, Apartment F. The apartment is owned by appellee Philadelphia Housing Authority. Upon returning from the Brighton Hill Church with bags of food in-hand, appellant entered through the front door, walked up the steps to her second-floor apartment, dropped off the bags, and then descended the stairwell to close the front door. On the way back down the steps, appellant fell and severely fractured her forearm and wrist.

Appellant, through three different attorneys, has alleged several inconsistent theories of premises defect. The original notice prerequisite to suit alleged that appellant fell due to “slippery metal steps.” The amended notice prerequisite to suit alleged that appellant fell due to “defective steps.” The complaint alleges that plaintiff fell due to “slippery metal steps and glass from the screen door.” Appellant’s case management memorandum alleges that appellee negligently caused “broken glass to remain on a metal step.” Appellant’s deposition testimony alleges that her fall was also caused by a “cracked tile” on the step’s landing and rain which caused the steps to be slippery.

According to appellant’s deposition testimony, a PHA maintenance man came to the premises to fix her screen door the day before the incident. (PI. dep. exhibit “G” page 24, lines 13-16). The maintenance man allegedly shattered the window pane of the door and failed to clean it up. In contrast, appellant also testified that she shared a piece of cake leftover from the Brighton Hill Church bag with the maintenance man who was there to there to fix the screen door. (PL dep. exhibit “G” page 26, lines 11-19; page 27, lines 3-9). Appellant was unable to specifically state whether the maintenance man was at her apartment at around midnight or whether he came the following day. Appellant did not provide a work order or a witness to corroborate her recollection of the maintenance man’s presence on the premises for any of these three days.

There are approximately fifteen steps on the stairwell leading to appellant’s apartment. Appellant stated she fell on the fourth or fifth step from the top. (PL dep. Exhibit “G” page 22, lines 4-12). Appellant also testified that the “cracked tile” was located at the top of the steps, not at the bottom. In support of her claim, appellant provided photos of the condition of her steps, the landing area at the top of the steps, and the bottom of the Nike boots she wore during the incident. When appellant was shown a photo of the condition of the steps, appellant agreed the photos revealed no glass on the steps themselves. (PL dep. exhibit “G” page 32, lines 5-17). When shown the photo of the top portion of her steps, appellant conceded that the photos did not show any glass or debris. (PL dep. exhibit “G” page 32, line 18 through page 33, line 7). When shown a higher-resolution photo of the bottom of her Nike boots, appellant conceded that the particles attached to the bottom of her boots appeared to be dirt rather than glass. (PL dep. exhibit “G” page 52, line 14 through page 54, line 7). Appellant raises the fact that the photographs were taken six (6) days after her fall.

ISSUE ON APPEAL

The matter complained of on appeal is summarized below:

The trial court committed an error of law by granting the appellee’s motion for summary judgment and dismissing appellant’s complaint with prejudice for appellant’s failure to allege any theory of liability which meets the sovereign immunity exceptions from premises liability outlined in 42 Pa.C.S. §§8522(b).

LEGAL DISCUSSION

I. THE TRIAL COURT CORRECTLY GRANTED APPELLEE’S MOTION FOR SUMMARY JUDGMENT BASED ON THE ON THE EVIDENCE ON THE RECORD AT THE TIME THE COURT MADE ITS RULING.

Summary judgment is proper where, after the completion of discovery, an adverse party bearing the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense. Pa.R.C.P. 1035.1 through 1035.5. We view the record in light most favorable to the non-movant and resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Pennsylvania State University v. Count of Centre, 615 A.2d 303, 302 (1992). Here, there is no genuine issue of material fact requiring this court to adjudicate claims in appellant’s favor.

Appellee asserts the affirmative defense of sovereign immunity set forth in the Sovereign Immunity Act. Downings v. Phila. Housing Authority, 610 A.2d 535 (1992). Under the Sovereign Immunity Act, the Commonwealth and related local governmental entities are immune from premises liability suits in most circumstances. Immunity, however, may be set aside under certain exceptions. 42 Pa.C.S. §8521(a). There are two prongs that must both be met to trigger an exception. First, damages must be recoverable under common law or statute and the injury must have been caused by the negligent acts of a local agency or the employee acting within the scope ofthe agency. §8542(a) (emphasis added). Second, the injury must have occurred as a result of one of eight exceptions. §8541(b).

Only the “real estate” exception is relevant here. Under this exception, the injury must have been caused by a dangerous condition derived from defective realty or a defect in the realty’s construction, maintenance, repair or design. §8522(b)(7). Jones at 444-45. A dangerous condition caused by a substance or object foreign to the realty is insufficient to establish the real estate exception. Jones at 445. The dangerous condition must derive from the “realty itself.” Id. (emphasis added). It is well established that exceptions to immunity are to be strictly construed because of the clear legislative intent to insulate government from exposure to tort liability. Dean v. Com., Dept. of Transp., 751 A.2d 1130, 1132 (2000).

On appellee’s motion for summary judgment, this court does not determine whether the alleged defects factually amounted to dangerous conditions of the real estate. This court determines if the alleged real estate conditions are legally cognizable defects under the real estate exception. Thornton v. Philadelphia Hous. Auth., 4 A.3d 1143, 1149 (Pa. Commw. Ct. 2010). The issue here is not whether appellant’s alleged dangerous conditions existed, but whether PHA would be liable for the conditions under the real estate exception to sovereign immunity. Dean v. Com., Dept. of Transp., 751 A.2d 1130, 1135 (2000).

Even with all facts viewed in light of the non-moving party, appellant has not alleged facts which show a realty defect or dangerous condition derived from realty which caused her injury. Appellant testified that she fell on the fourth or fifth step down from the top of the stairwell which contained approximately fifteen steps. (Exhibit “G” page 21 - 22). The location of her fall is critical to the resolution of her claim. To set aside immunity, appellant must identify the realty defect which existed at the location of her fall. Thus, appellant must identify what realty defect exists at the fourth or fifth step down from the top of the stairs.

Appellant raises three potential “defects” that caused her fall. First, appellant claims the stairs were slippery from rain. Second, appellant claims a “cracked tile” contributed to her fall. Third, appellant claims she fell from shattered glass left behind by a PHA.

Appellant claims rain caused the steps to become wet and slippery. In Page v. City of Philadelphia, the Pennsylvania Supreme court held that snow and ice are not conditions “derived from realty” and thus, do not meet the sovereign immunity exception under section 8522(b)(4). 25 A.3d 471, 476 (Pa. Commw. Ct. 2011) appeal denied, 40 A.3d 124 (Pa. 2012). Similarly, salt on the grounds of a SEPTA train station which caused a plaintiff to fall and become injured is not a dangerous condition which pierces immunity because salt did not derive from the realty itself. Jones v. SEPTA, 772 A.2d 435, 444 (2011). The rain, like salt, snow, and ice, is foreign to the realty and does not, as a matter of law, meet the real estate exception. Moreover, rain is a natural formation, not a defect of realty’s construction, maintenance, or repair. Id.

When asked the location of the cracked tile, appellant unequivocally asserted that the cracked tile was and is located at the top of the steps, appellant testified to safely beginning her descent from the top of the steps where the cracked tile was located. She did not fall until the “fourth or fifth” step. While a cracked tile could be a real estate defect within the meaning of 42 Pa. appellant makes no connection in her deposition testimony or through other evidence between the cracked tile and her fall. When asked directly if the cracked tile caused her to fall, appellant responded that she did not know. (Exhibit “G” page 22, line 13 through 23).

Like the cracked tile, the location of shattered glass is relevant to appellant’s claim, appellant stated in her deposition testimony that the shattered glass was located at the bottom of the steps, not at the fourth or fifth step where she fell. In support of her claim appellant offered photographs of the stairwell to showthe amount of shattered glass on the stairwell. The parties dispute whether or not the photos, taken six days after the incident, accurately represent the condition of the stairwell at the time of appellant’s fall. This disagreement does not, however, create a genuine issue of material fact because the amount of glass towards the bottom of the stairwell is immaterial to the appellant’s claim. Even taking the most expansive view of the facts established only by appellant’s own testimony, there is no correlation between appellant’s fall at the fourth or fifth step from the top and shattered glass at or near the bottom of the staircase, appellant offers no evidence to explain how glass may have traveled against gravity, up the staircase to the location of appellant’s fall, appellant could not identify remnants of glass in the photo of her boot’s soles nor did she identify glass in the photographs of the staircase.

Appellant suffered a complete fracture of her left arm. She does not allege injuries, such as lacerations, which would result from contact with shattered glass. Even if this court accepted that the maintenance person was an agent of the Philadelphia Housing Authority who left shattered glass behind after performing repair work, the evidence does not show how the glass from the front door is a real estate defect of the steps which caused her injury. If, for argument’s sake, shattered glass was left behind on the fourth or fifth step, this would still only show a substance on the real property such as rain, not a defect of the property itself within the meaning of the real estate exception, appellant makes no connection between the shattered glass and her broken arm.

We do not ignore the requirements of common law negligence in resolving appellant’s claim. The facts offered by appellant do not support a negligence claim, which is a threshold requirement for setting aside Sovereign Immunity. 42 Pa. C.S. §8542(a). appellant has not established that the cracked tile was the proximate cause of her fall. Moreover, appellant has not established that appellee received notice of any dangerous conditions caused by rain or shattered glass. Because appellant does not establish a common law negligence claim, none of the Sovereign Immunity exceptions may apply.

Even if appellant met the threshold requirements of § 8542(a), the dangerous conditions alleged - rain, a cracked tile at the top of the steps, and shattered glass at the bottom of the steps - do not establish legally cognizable real estate defects within the meaning of the realty exception, appellee is entitled to Sovereign Immunity granted by §8542.

CONCLUSION

Based on the aforementioned, the trial court did not err in granting appellee’s motion for summary judgment. For all reasons stated above, the ruling on the appellee’s motion entered on November 2, 2012 should be upheld.


author: TUCKER, J.,

text:
    The Bancorp Bank v. Mancini

      C.P. of Philadelphia County,
    No. 125 EDA 2013.

      Alan S. Fellheimer, for appellant.

      David L. Zive, for appellee.
    February 19, 2013
   TUCKER, J.,

I. Facts & Procedural History

This matter comes before the court on appeal from an order granting Daniel Mancini’s (hereinafter referred to as “appellee”) petition to strike/open confession of judgment. Order entered by J. Tucker (12/12/2012). The court, upon consideration of the petition and responses thereto, struck the confession of judgment previously entered in favor of The Bancorp Bank (hereinafter referred to as “appellant”) against appellee. Amended compl. filed (06/27/2012); order entered by J. Tucker (12/12/2012). The basis of this judgment is what is being appealed.

On March 24,2006 appellee, along with several others, formed a New Jersey limited partnership under the name Montery Avenue Associates LP (hereinafter referred to as “Montery Avenue”), the primary purpose of which was to acquire real property for development and/or redevelopment for use, lease, or sale. Petition to strike/ open (08/14/2012). Appellee was a limited partner in Montery Avenue. Id.

On March 31, 2006, appellant made a construction line of credit available to Montery Avenue in the amount of eight million one hundred eighty thousand dollars ($8,180,000.00), pursuant to a loan agreement between Montery Avenue and appellee (“2006 loan”). Amended compl. filed (06/27/2012); petition to strike/ open (08/14/2012). The 2006 loan agreement contained a confession of judgment clause and warrant of attorney provision. Id. The 2006 loan is secured by, inter alia, an amended and restated surety agreement dated March 30, 2006 and signed by appellee in favor of appellant, pursuant to which appellee guaranteed the payment of the 2006 loan (hereinafter referred to as “2006 surety agreement”). Id. The 2006 surety agreement contains a separate warrant of attorney provision, signed by appellee. Id. In addition to the 2006 surety agreement, appellee also signed a disclosure of confession of judgment referencing the 2006 surety agreement on May 12, 2006. Id.

The 2006 loan between Montery Avenue and appellee was modified on June 22, 2009, increasing the amount of available credit to nine million and thirty thousand dollars ($9,030,000.00), then to nine million four hundred and twenty thousand dollars ($9,420,000.00) (hereinafter referred to as “modified loan”). Id. The modified loan contained a warrant of attorney provision. Petition to strike/open (08/14/2012). In addition, the modified loan contained a provision whereby the sureties of the 2006 loan, acknowledged, by signature, their consent to modifications to the 2006 loan; appellee signed the modified loan as surety. Id. However, appellee did not sign a separate surety agreement guarantying the modified loan; nor did appellee sign a separate disclosure of confession of judgment in relation to the modified loan. Id.

On September 30, 2009, appellant made a second loan to Montery Avenue in the amount of two hundred seventy thousand dollars ($270,000.00) pursuant to a loan agreement between appellant and appellee (hereinafter referred to as “2009 loan”). Confession of J. (05/05/2012). The 2009 loan agreement contained a separate warrant of attorney provision. Id. Montery Avenue subsequently defaulted on the 2006 loan and 2009 loan. Id.

OnMay 2,2012, appellant filed a complaint in confession of judgment pursuant to the surety agreements executed by appellee, seeking three million four hundred fifty-four thousand three hundred eighty five dollars and eight cents ($3,454,385.08), representing the full accelerated balance due on both the 2006 and the 2009 loans. Id.

On May 21, 2012, appellant filed a motion to amend the original complaint in confession of judgment to remove reference to the 2009 loan, stating its intention to obtain judgment on the 2006 loan separately. Mot. to amend (05/21/2012). Appellee filed an answer to the motion to amend on June 7, 2012. Answer to mot. to amend (06/07/2012). The court granted appellant’s motion to amend on June 20, 2012; appellant filed its amended complaint in confession of judgment on June 27, 2012, omitting the aggregate balance of the 2009 loan included in the original complaint in confession of judgment. Order entered by J. Tucker (06/20/2012); Amended compl. filed (06/27/2012).

On June 1, 2012, appellee filed a petition to strike/ open the confession of judgment. Pet. to strike/open (06/01/2012). On July 2, 2012, the court granted appellee’s petition to strike/open confession of judgment, order entered by J. Tucker (07/02/2012). Appellant filed a motion to reconsider and vacate the court’s order granting appellee’s petition to strike/open on the basis that the petition was rendered moot by the court’s June 20, 2012 order granting appellant’s motion to amend. Mot. to reconsider (07/12/2012). The court granted appellant’s motion for reconsideration and vacated the July 2, 2010 order granting the petition to strike/open. Order entered by J. Tucker (07/17/2012).

Appellee filed a renewed petition to strike/open confession of judgment pursuant to the court’s order on August 14, 2012. Petition to strike/open (08/14/2012). Appellant filed a reply to the petition to strike/open on September 4, 2012. Reply to petition (09/04/2012). The court granted appellee’s petition to strike/open confession of judgment on December 12, 2012, thereby striking the Cconfession of judgment, order entered by J. Tucker (12/12/2012). Appellant filed a notice of appeal of the December 12, 2012 order soon thereafter. Notice of appeal (12/19/2012). The court did not order appellant to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b) per its usual custom. A discussion ensues:

II. Legal Analysis

a. The Court properly granted Appellee’s Petition to Strike the Confession of Judgment because the June 22, 2009 modification of the 2006 Loan nullified the Surety Agreement’s warrant of attorney.

A motion to strike confession of judgment is governed by Pa. R.C.P. 2959. Pa. R.C.P. 2959. It is well-settled that a confessed judgment is properly stricken only when there is a fatal defect in the judgment that is apparent on the face of the record. Rittenhouse v. Barclay White, Inc., 625 A.2d 1208, 1210 (Pa. Super. 1993)(citing Davis v. Woxall Hotel, Inc., 577 A.2d 636, 638 (Pa. Super. 1990) (citations omitted)). In considering the merits of a petition to strike, the court will be limited to a review of only the record as filed by the party in whose favor the warrant is given, i.e., the complaint and the documents which contain the confession of judgment clauses. Atlantic National Trust, LLC v. Stivala Investments, Inc., 922 A.2d 919, 922 (Pa. Super. 2007)(citing Resolution Trust Corp. v. Copley QuWayne Assocs., 683 A.2d 269, 273 (Pa. 1996)). Matters dehors the record filed by the party in whose favor the warrant is given will not be considered. Resolution Trust Corp, 683 A.2d at 273. Therefore, if the truth of the factual averments contained in such record is disputed, then the remedy is by a proceeding to open the judgment and not to strike the judgment. Id. at 273.

A confession of judgment shall not be stricken where the record is self-sustaining. Resolution Trust Corp, 683 A.2d at 273. A record is self-sustaining where the warrant of attorney is in writing; is signed by the person to be bound by the warrant of attorney; and the signature is in direct relation to the warrant of attorney. L.B. Foster Co. v. Tri-W Construction Company, Inc., 186 A.2d 18, 19-20 (Pa. 1962)(citing Frantz Tractor Co. v. Wyoming Valley Nursery, 120 A.2d 303, 306-07 (Pa. 1956)). To be sure, the authority to confess judgment must be clear and explicit; an agreement containing a warrant of attorney must be strictly construed. Solebury Nat’l Bank v. Cairns, 380 A.2d 1273, 1275 (Pa. Super. 1977).

Where a party has signed an agreement with clear and unambiguous language, the plain language of the agreement cannot be ignored. Herman v. Stern, 213 A.2d 594, 598 (Pa. 1967). As such, a general reference in the body of an agreement to a warrant of attorney or confession of judgment clause outside the agreement is insufficient to bind the signatory, unless the signatory signs the warrant of attorney where it appears. L.B. Foster Co., 186 A.2d at 19-20. In addition, a modified contract incorporates a warrant of attorney from the original contract if it is clearly and expressly incorporated into the modified contract. Frantz Tractor Co., 120 A.2d at 306-07.

Here, appellee was specifically mentioned in the 2006 loan documents as a surety; in addition to being mentioned by name in the 2006 loan documents, appellee signed the 2006 surety agreement with a separate disclosure for confession of judgment referencing the 2006 surety agreement, which in turn referenced the 2006 loan. In June 2009, a modified loan was entered into between appellant and Montery Avenue; the modified loan specifically mentioned that the “sureties” acknowledge their consent to the modifications of the 2006 loan. Although appellee signed the modified loan, he did not execute a separate surety agreement or a separate disclosure for confession of judgment. The modified loan did not clearly and expressly incorporate the warrant of attorney provisions of either the 2006 loan documents or the separately executed disclosure of confession of judgment. The modified loan, therefore, nullified the 2006 loan.

In its June 2012 amended complaint in confession of judgment, appellant included the 2006 loan documents; the 2006 surety agreement and disclosure for confession of judgment, as a basis to enter confession of judgment against appellee. This is fatal defect. Since the 2006 loan and attendant warrant of attorney contained therein were nullified by the modified loan, the record upon which appellant seeks to enter confession of judgment is not self-sustaining. Appellant’s confession of judgment was properly stricken because the modified loan agreements did not contain a warrant of attorney signed by appellee.

b. The Court properly granted Appellee’s Petition to Strike the Confession of Judgment because Appellant did not properly serve Appellee with the Complaint and Notice of Judgment.

Notwithstanding the absence of valid warrant of attorney linking appellee to the modified loan, the complaint and motice of judgment were properly stricken due to improper service. The court’s jurisdiction to enter confession of judgment is predicated upon proper service of original process of the complaint in confession of judgment. Pa. R.C.P. 2958.1(a) requires that a notice of judgment accompanying a complaint in confession of judgment “shall be served on the defendant at least thirty days prior to the filing of the praecipe for a writ of execution.” Pa. R.C.P. 2958.1(a). Pa. R.C.P. 2958.1(b) further mandates that original process shall be served upon a defendant who has not yet entered an appearance “by the plaintiff mailing a copy in the manner prescribed by Rule 403.” Pa. R.C.P. 2958.1 (b)(l)(ii)(emphasis added).

Pa. R.C.P. 403 governs service by mail; Rule 403 provides, in relevant part:

If a rule of civil procedure authorizes original process to be served by mail, a copy of the process shall be mailed to the defendant by any form of mail requiring a receipt signed by the defendant or his authorized agent. Service is complete upon delivery of the mail.

Pa. R.C.P. 403 (emphasis added).

While litigants must adhere to the Pennsylvania Rules of Civil Procedure, it is well settled that courts must refrain from “enforcing [procedural] technicalities to defeat apparently meritorious claims.” George H. Althof Inc. v. Spartan Inns of America, Inc., 441 A.2d 1236, 1237-38 (Pa. Super. 1982) (quoting West Penn Sand & Gravel Co. v. Shippingport Sand Co., 80 A.2d 84, 86-87 (Pa. 1951)). Accordingly, in the context of confession of judgments, formal defects, mistakes and omissions may be corrected by amendment where (1) the cause of action is not changed; (2) the ends of justice require the allowance of such amendment; (3) where the substantive rights of defendant or of any third persons will not be prejudiced thereby. Id. The court must, therefore distinguish between merely technical defects and prejudicial defects before striking off a confession of judgment. Id.

For example, the failure to attach a proper verification to a complaint in confession of judgment has been held to be “inconsequential”; not prejudicial; or the magnitude warranting the striking off of a confession of judgment. George H. Althof Inc., 441 A.2d at 1238 (discussing various court holdings dealing with petitions to strike confession of judgment). Verifications do not affect the jurisdiction of the court; they are required as protection for the parties. Monroe Constract Corp. v. Harrison Square, Inc., 405 A.2d 954, 956 (Pa. Super. 1979).

In contrast to procedural rules promulgated to merely protect parties in litigation, it is well-settled that procedural rules governing service of process must be strictly followed because service of process is the mechanism by which a court obtains jurisdiction over a defendant. Cintas Corp. v. Lee’s Cleaning Services, Inc., 700 A.2d 915, 917-18 (Pa. 1997). As such, service of process not is not “merely a procedural defect that can be ignored when a defendant subsequently learns of the action against him or her.” Id. Therefore, improper service of process is an incurable defect on the record which supports granting a petition to strike a confession of judgment, particularly where plaintiff has failed to comply with the requirements of Rule 403. Id. at 1076-1077.

Here, the record is clear that appellant did not comply with the Rule 403 in serving original process of its complaint in confession of judgment. The court notes that appellant had not one chance, but two chances to properly effectuate service upon appellee by virtue of the court’s June 2012 order granting appellant leave of court to file an amended complaint in confession of judgment. On May 02, 2012, appellant attached a certification of service stating that a copy of the complaint in confession of judgment was sent “via first class mail” to appellee at an address in Tumersville, NJ. Confession of J. filed (05/02/2012). The court notes that the 2006 surety agreement lists appellee’s address as being in Marlton, NJ. On June 27,2012, appellant attached a certification of service stating that a copy of the complaint in confession of judgment was “served upon [appellee] via the court’s electronic filing system and/or U.S. Mail.” Amended compl. filed (07/02/2012). First class mail, electronic filing and/or U.S. mail do not require a return receipt; therefore appellant failed to serve original process of the complaint in confession of judgment upon appellee. The confession of judgment was properly stricken because appellant’s failure to properly serve appellee constituted an incurable defect on the record.

c. Appellee raised additional arguments conducive to granting the Petition to Strike/Open Confessed Judgment.

The court notes that appellee raised two arguments not addressed in the foregoing paragraphs, which could conceivably justify striking the confessed judgment. The court was persuaded by one of those arguments, but does not feel that it is necessary to resolve the ultimate questions in light of the soundness of the court’s aforementioned rationale. However, the court will endeavor to explain its agreement, even though it will not resolve the issues entirely.

Appellee asserts that appellant exhausted its rights under the 2006 surety agreement’s warranty of attorney by attempting to collect the debt in the original complaint. In the original complaint, appellant confessed judgment against appellee in the amount of three million, four hundred and fifty-four thousand three hundred and eighty-five dollars and eight cents ($3,454,385.08). Petition to strike/open (08/14/2012). In its amended complaint, appellant seeks to confess judgment for the same amount, minus the 2009 loan sum in the amount of two hundred and seventy-three thousand five hundred forty dollars and seventy-four cents ($273,540.74) and a proportional reduction of the attorney’s fees originally sought. Id. In essence, appellee argues that appellant twice sought to collect the same debt. Appellant counters that this is a logically indefensible position because the court granted appellant leave to file an amended complaint. Reply to petition (09/04/2012).

Whether or not the complaint and amended complaint constituted separate collection efforts, it is well-settled that Pennsylvania law prohibits duplicative attempts to collect a single debt because “where a power of attorney authorizes a confession of judgment and the power is once exercised, the power is thereby exhausted.” American Bowling Club, Inc. v. Kanefsky, 87 A.2d 646, 648 (Pa. 1952); B. Lipsitz Co. v. Walker, 522 A.2d 562, 565-566 (Pa. Super. 1987), app. granted, 531 A.2d 426 (Pa. 1987). This is because “[t]he purpose of the power or warrant of attorney [is]...the entry by confession...of a judgment in favor of the [creditor],” and “the power authorize[s] nothing further.” American Bowling Club, Inc., 87 A.2d at 647 (quoting Philadelphia v. Johnson, 57 A. 1114 (Pa. 1904)). As a result, a plaintiff that seeks to confess judgment for a specific sum exhaust[s] the warrant of attorney provided for in the individual guaranty. TCPF Ltd. P’ship v. Skatell, 976 A.2d 571, 576-577 (Pa. Super. 2009). Furthermore, a second attempt to collect the same portion of the debt already confessed:

[M]ust be disallowed because the warrant of attorney has been exhausted. [A plaintiff] cannot amend a complaint in confession of judgment to reserve a right to collect the same portion of debt already confessed.

Id. (emphasis added). The court agrees that appellant effectively sought to confess judgment on the same debt twice in contravention of Pennsylvania law.

III. Conclusion

After careful consideration of the parties’ respective arguments, the court finds that the confessed judgment must be stricken. Appellant had no right to confess judgment against appellee following the modification of the 2006 loan. In addition, appellant failed to properly effectuate original service of process of the complaint and notice of judgment. This is by no means a case of first impression. The law is clear that a confession of judgment can — and shall — be stricken on both bases because each constitutes a defect on the face of the record that cannot be cured by amendment.


author: REIBMAN, J.,

text:
    St. Luke’s Hospital of Bethlehem, Pa. v. Vivian
    C.P. of Lehigh County,
    No. 2011-C-1182.

      Mark Zolfaghari and Jeffrey Rosenthal, for plaintiff

      Wendy F. Tucker, for defendant
    February 27, 2013
   REIBMAN, J.,

In these actions, which center on plaintiff’s claims of wrongful use of civil proceedings and RICO violations, defendants move to strike plaintiff’s objections to various interrogatories and/ or to compel more complete responses than those provided thus far by plaintiff. In response, plaintiff argues that the bulk of defendants’ 131 interrogatories, which they have served in each case, amount to “contention interrogatories” that are, at best, premature at this phase of the litigation in which discovery has recently gotten underway in earnest after a court-imposed stay.

As plaintiff correctly indicated at oral argument, so-called “contention interrogatories,” in which a party requests all information supporting a party’s particular allegation in a pleading, have been the subject of critical commentary in the Rules of Civil Procedure. Specifically, the 2008 explanatory comment to Pa.R.C.P. 4005 states in pertinent part as follows:

Contention interrogatories, like all forms of discovery, can be susceptible to abuse. Among other things, they can be used as an attempt to tie up the opposing party rather than to obtain discovery. The legitimate purpose of contention interrogatories is to narrow the issues for trial, not to force the opposing side to marshal all its evidence on paper. * * *
The potential for overreaching is particularly present when interrogatories seeking the detailed underpinnings of the opposing party’s allegations are served early in the case. Although, when used with discretion, interrogatories served near the outset of the case can be useful in narrowing the issues to define the scope of necessary discovery, contention interrogatories ordinarily are more appropriate after the bulk of discovery has already taken place. At that point, the party on whom the interrogatories are served should have the information necessary to give specific, useful responses....

(Internal quotation marks omitted.)

Federal courts have also viewed this discovery device with considerable circumspection. In the case of In Re Convergent Technologies Securities Litigation, 108 F.R.D. 328, 338 (N.D. Cal. 1985), the court described so-called “contention interrogatories” as consisting of those which propound wide-ranging questions that ask an opposing party to indicate, inter alia, all of the facts upon which it bases some particular contention — as “distinguished from interrogatories which seek the identification of witnesses or of documents that support or contradict any of the controverted allegations.” Relying on Convergent Technologies, the District court of the Eastern District of Pennsylvania has more recently instructed:

A party filing contention interrogatories early in the pretrial period, before substantial documentary or testimonial discovery has been completed, has the burden of justification. It must present specific, plausible grounds for believing that securing early answers to its contention questions will materially advance the goals of the Federal Rules of Civil Procedure. The burden cannot be met by vague or speculative statements about what might happen if the interrogatories were answered. To meet the burden,... a party must show...that there is good reason to believe that answers to its well-tailored questions will contribute meaningfully to clarifying the issues in the case, narrowing the scope of the dispute, or setting up early settlement discussion, or that such answers are likely to expose a substantial basis for a motion [for sanctions or summary judgment] under Rule 11 or Rule 56.
...Moreover,...special vigilance in the evaluation of the proffered justification is required when a complaint is not facially infirm and when defendants appear to have control over or adequate access to much of the evidence to their alleged misconduct.
... [T]here is substantial reason to believe that the early...filing of sets of contention interrogatories that systematically track all of the allegations in an opposing party’s pleadings is a serious form of discovery abuse.

Fischer and Procter Co. v. Tolson, 143 F.R.D. 93 (E.D. Pa. 1992) (internal quotation marks and citations omitted).

In Tolson, the court determined that the complaint was not facially infirm and that the defendants appeared to have control over, or adequate access to, much of the evidence of their alleged misconduct. Ibid. The court also observed that substantial discovery remained to be conducted. Ibid. Tolson held, therefore, that the defendants had failed to meet the conditions required to compel their adversary to answer contention interrogatories, “except to the extent that the interrogatories seek the identity of witnesses or of documents or other tangible evidence.” Ibid.

Turning back to the present matters, it will quickly be noted that the Federal Rules of Civil Procedure do not govern actions proceeding in the courts of common pleas in this commonwealth. Flowever, it will also be readily observed that in the federal system, so-called “notice pleading” prevails, while in Pennsylvania, a more rigorous system of “fact-pleading “obtains. As one commentator has intimated, inasmuch as the latter regime requires the parties to flesh out the factual underpinnings of their claims in greater detail, this distinction renders the use of contention interrogatories even more suspect in fact-pleading jurisdictions. See Douglas C. Rennie, The End of Interrogatories: Why Twombly and Iqbal Should Finally Stop Rule 33 Abuse, 15 Lewis & Clark Law. Rev. 191, 250-55 (2011); also see Pa.R.C.P 1028 (affording remedy through request for more specific pleading if any confusion results from insufficient specificity in complaint).

Here, as held in Tolson, it appears that, at least at this preliminary phase of discovery, there lacks a sufficient basis to compel plaintiff to respond to the contention interrogatories propounded by defendants. Indeed, perusal of the sets of 131 interrogatories reveals that a significant number of them, particular numbers 39 through 131, merely track the allegations of plaintiff’s complaints, thereby bordering on the “serious form of discovery abuse” referenced in Tolson. Typically, those queries consisted of variations of the following: “Provide the basis for and identify what information you relied upon (including a full description of all documents and the identity of all witnesses) in preparing the allegations found in Paragraphs [x-y] of the Complaint.” (See defendants’ first set of interrogatories, included in defendants’ motion to compel). Also, as in Tolson, discovery in this matter, as a consequence of the recently lifted stay, has not nearly run its course.

Fairly viewed, defendants’ contention interrogatories, numbers 3 9-131, do not appear reasonably aimed to narrow the issues for trial, but instead seem to be a patent attempt to force the opposing side to marshal all its evidence on paper. Accordingly, the motion to compel answers to interrogatories purporting to require plaintiff to identify all of the factual bases for the various allegations set forth in the complaints will be denied without prejudice to a more selective use thereof at or near the close of discovery, as the circumstances may then warrant. Flowever, as in Tolson, plaintiff shall be required to identify any documents as well as any witnesses that are germane to those inquiries, so that discovery may proceed in a fruitful and orderly fashion to lay bare the issues that remain in contention and so that an assemblage of evidence relevant to trial of those issues may be effected.

With respect to interrogatories numbered 1 -37, which do not consist of contention interrogatories, plaintiff offered no additional argument in open court and, as such, the motion will be determined on the basis of the objections set forth in plaintiff’s response. Addressed seriatim, they are as follows.

The objections to interrogatory nos. 1-4; 6 - 14; 16-26 on the grounds of, inter alia, relevance, burdensomeness, and/or vagueness are overruled. Each question appears reasonably calculated to lead to the discovery of admissible evidence in relation to the claim for damages in the form of attorneys’ fees incurred in the underlying actions, upon which the present wrongful-use-of civil-proceedings claims are premised. Although plaintiff has provided answers notwithstanding the objections, to the extent those answers remain incomplete as a result of the objections, plaintiff shall supplement its responses within twenty (20) days of the entry of this order. Further, if plaintiff maintains its objections on the basis of privilege, it shall specifically state the basis for any information withheld pursuant thereto, so that an in-camera inspection or ex parte hearing thereon may be held. It will be noted, however, that the attorney-client privilege in respect to the completed underlying actions that forms the basis for the present claims are waived to the extent that information relevant to the claims of attorneys’ fees, including the reasonableness thereof, are at issue in this proceeding.

The objections to interrogatory nos. 15, 27, and 28 are sustained. Questions regarding the terms plaintiff’s relationship with counsel in the present actions do not appear reasonably calculated to lead to admissible evidence. Nor is information relating to indemnification in the underlying matter relevant. Cf Pa.R.C.P. 4003.2 (information relative to insurance monies available to satisfy judgment in present action discoverable).

The objection to interrogatory nos. 32, 33, 34, 35, 36, 37, and 38 on the grounds of relevance are overruled. It is premature at this phase of the proceedings to declare that plaintiff’s contemporaneous knowledge and credibility are entirely irrelevant to the issues potentially to be confronted by the finder of fact, particularly insofar as plaintiff appears to contend that its contemporaneous representation to defendants in regard to the alleged lack of merit of the underlying actions should have been heeded.

ORDER

And now, February 27, 2013, it is ordered that the above-captioned matters are hereby consolidated for purposes of discovery.

It is further ordered that, upon consideration of defendants’ motions to compel discovery, filed on February 5,2013, and after argument held on February 8,2013, and for the reasons set forth in the accompanying opinion, and consistent with said opinion, said motion is granted in part and denied in part.


text:
    Sovereign Bank, N.A. v. Hawkins

      Thomas A. Fosnocht, Jr., for appellant

      Alexander Z. Talmadge, Jr., for appellee
    March 4, 2013
   TUCKER, J.,

I. Procedural History & Facts

This matter comes before the court on appeal from the dismissal of Sovereign Bank’s (hereinafter referred to as “appellant”) complaint in mortgage foreclosure (hereinafter referred to as the “complaint”) against Harold Hawkins and Bessie Luffborough (hereinafter referred to as “appellees”). Order entered by J. Tucker (12/07/2012). The court, upon consideration of appellees’ preliminary objections, sustained the preliminary objections and entered an order in favor of appellees. Id. The basis of that ruling is on appeal.

On October 18, 1990 appellee Hawkins executed and delivered to Liberty Bank, for value received, a home equity line revolving loan agreement (herein after referred to as the “agreement”) with a credit limit of twenty-five thousand dollars ($25,000). Compl. filed notice given (07/18/2012). Appellees also executed and delivered to Liberty Bank an advance money mortgage (hereinafter referred to as the “mortgage”) securing repayment of the agreement by encumbering the premises known as 3037 N. 15th Street, Philadelphia, PA 19132. Id. The mortgage was duly recorded in the Department of Records and for the County of Philadelphia on the following day. Id. Sometime thereafter, Liberty Bank merged with First Union National Bank (hereinafter referred to as “First Union”), and as a direct result, the agreement and mortgage and attendant rights, title, and interest were transferred from Liberty Bank to First Union. Id. On January 18, 1999, First Union assigned the agreement and mortgage to appellant (hereinafter referred to as the “assignment”), which described the subject premises and was recorded on March 29, 1999. Id.

On December 7, 2011 appellees defaulted on the agreement and mortgage. Compl. filed notice given (07/18/2012). On February 22, 2012, appellant sent a notice of intent to foreclose by first class and certified mail, addressed to appellees at the subject premises. Id. On July 18, 2012, appellant commenced a civil action in the court of Common Pleas of Philadelphia County, demanding an in rem judgment against appellees. Commencement of civil action (07/18/2012). Pursuant to the terms of the agreement and mortgage, appellant sought judgment in the amount of thirty thousand four hundred and sixty dollars and thirty-two cents ($30,460.32), which represents the outstanding principal, interest, attorney’s fees and other costs of collection. Compl. filed notice given (07/18/2012).

On September 24, 2012, the court entered an order permitting appellant to seek default judgment in the underlying mortgage foreclosure matter because the subject property was not residential and/or not owner occupied. Order entered by J. Rizzo (09/24/2012). Accordingly, appellant entered default judgment against appellees on October 1, 2012. J. by default (10/01/2012). On October 2,2012, appellees filed preliminary objections to the complaint, arguing inter alia that appellant lacked standing because it failed to prove chain of title. Prelim, objections (10/02/2012). The response date for appellees’ preliminary objections was October 22, 2012. Id. appellees subsequently filed a petition to open default judgment. Petition to open (10/05/2012). appellees’ preliminary objections were assigned to the instant court on October 24, 2012. Prelim, obj. assigned (10/24/2012). As the preliminary objections were filed premature, the court declined to rule on the preliminary objections until after the resolution of appellees’ petition to open default judgment.

On November 8, 2012, the court entered an order granting appellees’ petition to open judgment. Order entered by J. Tucker (11/08/2012). On November 15, 2012, appellant filed its response to appellees’ preliminary objections. Ans. to preliminary objections (11/15/2012). The court thereafter entered an order sustaining appellees’ preliminary objections and dismissing appellant’s complaint in mortgage foreclosure with prejudice. Order entered by J. Tucker (12/07/2012). For reasons unknown, the order dated November 5, 2012 was docketed on December 7, 2012. Id.

Appellant timely appealed the court’s December 7, 2012 order. Appeal to Superior Court (01/04/2013). The court ordered appellant to file a concise statement of matters complained of on appeal pursuant to Pa. R.A.P. 1925(b) (“1925(b) statement”). Order entered by J. Tucker (01/17/2013). On February 05, 2013, appellant filed its 1925(b) statement. The court will not reproduce the entire statement per its usual custom, but instead includes an abbreviated version of appellant’s alleged errors. On appeal, appellant submits that the court improperly dismissed the complaint on the basis of appellees’ lone substantive preliminary objection - that appellant failed to attach the written assignment of appellees’ mortgage and note from Liberty Bank to First Union because:

[TJhere was no assignment from Liberty to First Union. As stated in paragraph 6 of the complaint, First Union was the “successor by merger” to Liberty Bank... Documents evidencing that a Bank is a “successor by merger” to another Bank are not required to be attached to a complaint in mortgage foreclosure. See, Pa. R.C.P. 1147(a).

1925(b) statement filed (02/05/2013)(emphasis retained). After careful review, the court finds this claim without merit. A discussion ensues:

II. Legal Analysis

a. The court properly sustained appellees ’preliminary objections and properly dismissed appellant’s complaint with prejudice.

Under the Pennsylvania Rules of Civil Procedure, a party may file preliminary objections to any pleading for “lack of jurisdiction over the subject matter of the action” and “lack of capacity to sue.” Pa.R.C.P. 1028(a)(1), (5). The Pennsylvania Supreme court summarized the standing requirement as follows:

The core concept of standing is that “a party who is not negatively affected by the matter he seeks to challenge is not aggrieved, and thus, has no right to obtain judicial resolution of his challenge.” A litigant is aggrieved when he can show a substantial, direct, and immediate interest in the outcome of the litigation. A litigant possesses a substantial interest if there is a discernible adverse effect to an interest other than that of the general citizenry. It is direct if there is harm to that interest. It is immediate if it is not a remote consequence of a judgment.

In re Milton Hershey School, 911 A.2d 1258, 1261-1262 (Pa. 2006). (Citations omitted). Actions in mortgage foreclosure are governed by Pa.R.C.P. 1147. As with other civil actions, a mortgage foreclosure action may only be pursued by a real party in interest to the underlying mortgage. Pa. R.C.P. 2002. Only the real party in interest has standing and the capacity to sue in an action in mortgage foreclosure. Litigants must aver to their standing or capacity to sue in pleadings filed of record in court. To this end, Pa.R.C.P. 1019 provides, in relevant part, the following:

Rule 1019. Contents of Pleadings. General and Specific Averments
***
(g) Any part of a pleading may be incorporated by reference in another part of the same pleading or in another pleading in the same action. A party may incorporate by reference any matter of record in any State or Federal court of record whose records are within the county in which the action is pending, or any matter which is recorded or transcribed verbatim in the office of the prothonotary, clerk of any court of record, recorder of deeds or register of wills of such county.
***
(i) When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing.

Pa.R.C.P. 1019(h), (i) (bold in original).

The linchpin of the instant appeal is the propriety of the court’s finding that appellant failed to establish standing in the absence of documentation evidencing a transfer of the agreement and mortgage from Liberty Bank to First Union. According to appellant, there was no “’assignment or transfer’ of the loan documents from Liberty Bank to [First Union]” because “[First Union] was the successor to Liberty Bank, not its assignee.” Ans. to preliminary objections (11/15/2012). As such, appellant submits it was not required to furnish more than the assignment from First Union to appellant to show a proper chain of title of the loan documents from Liberty Bank to appellant. Id. In making this argument, appellant’s relies on a perceived distinction between an assignment and a succession by merger, suggesting that the former is contractual and the latter statutory. Id. The merits of this argument notwithstanding, appellant has not provided the court with an evidentiary basis to render a judgment in its favor.

Appellant aptly recites the requirements of Pa. R.C.P. 1147(a)(1), which governs actions in mortgage foreclosure. Appellant argues that Pa.R.C.P. 1147 does not require a plaintiff to file documentation of successions by merger. Ans. to preliminary objections (11/15/2012). The court agrees that Pa.R.C.P. 1147 does not specifically state that documentation of mergers be filed with the complaint in mortgage foreclosure. Pa.R.C.P. 1147. The court also agrees with appellant that the essential purpose of Pa.R.C.P. 1147 is “to enable a defendant and the court to know the right by which a plaintiff seeks to enforce a mortgage.” Ans. to preliminary objections (11/15/2012). However, appellant conveniently fails to account for the significance of the absence of evidence documenting the purported “succession by merger” between Liberty and First Union.

Pa. R.C.P. 2002 states, “[ejxcept as otherwise provided in clauses (b), (c) and (d) of this rule, all actions shall be prosecuted by and in the name of the real party in interest, without distinction between contracts under seal and parol contracts.” Pa.R.C.P. 2002. In Cole v. Boyd, 719 A.2d 311, 312-313 (Pa. Super. 1998), the Superior Court indicated that a real party in interest is a “[pjerson who will be entitled to benefits of action if successful...[A] party is a real party in interest if it has the legal right under the applicable substantive law to enforce the claim in question.” (Quotation marks and quotation omitted). It is well known that a party is allowed to litigate as a real party in interest after becoming the assignee of a mortgage. Id. at 313-314 (discussing Pa.R.C.P. 2004, which govern transfers in interest that occur after an action is commenced). However, where an action is commenced by an entity, as here, which does not provide proper documentation of its right-either by chain of assignment, subrogation, or merger-that party has not established that it is a real party in interest, and therefore lacks standing and capacity to sue.

Here, appellees executed an agreement and mortgage in favor of Liberty Bank in 1990. At some point in time, First Union allegedly became the successor in interest to Liberty Bank. Neither the complaint nor appellant’s multiple filings in this matter contain any documentation of the alleged succession of interest from Liberty Bank to First Union. To the contrary, the complaint provides that “Equibank” is the successor in interest to Liberty Savings Bank, compl. filed (07/18/2012)(“Home equity revolving loan agreement” executed in 1992). In 1999, First Union assigned its alleged rights in the agreement and mortgage to appellant as a successor; this assignment is filed of record as recorded in Philadelphia County in 1999. appellees defaulted on their loans in 2011. The instant complaint in mortgage foreclosure was filed in 2012. Pursuant to Pa.R.C.P. 1019, appellant did not file of record any support for its averment that First Union was a successor in interest to Liberty Bank. As a practical matter, if a prior purported “real party in interested” [sic] could not establish standing by virtue of the nature of its interest, appellant could not assert a greater interest. For example, had this lawsuit been filed in the name of First Union, it necessarily would have been obligated to include information concerning the legal relationship between itself and the original mortgagee. Appellant bears the same burden of proof with respect to eveiy link in the chain of assignment, regardless of remoteness.

Simply put, there are no facts of record establishing that appellees had a duty to pay First Union and not Liberty Bank. The assignment between First Union and appellant does not establish this fact. Nevertheless, appellant resolutely adhered to its position that it was not necessary to provide proper documentation of the relationship between Liberty Bank and First Union; there is no authority for this proposition. Appellant may, in fact, be qualified to bring suit as a real party in interest as a result of First Union’s status as “successor in by merger,” but appellant declined the opportunity to try to prove it has standing, instead resolving to withhold essential information, which might have simply been proven by furnishing evidence of the merger agreement, a certified copy of a certificate of corporate existence, or other self-authenticating record demonstrating this change. Therefore, appellant has not established that it is the real party in interest to this instant action pursuant to Pa.R.C.P. 2002; notwithstanding the language of Pa.R.C.P. 1147, which governs actions in mortgage foreclosure, appellant has not established that it has the capacity to sue. Therefore, the court properly sustained Appellee’s preliminary objections with prejudice as provided in Pa.R.C.P. 1028.

III. Conclusion

Appellant failed to establish that it was the real party in interest to the underlying complaint in mortgage foreclosure. Therefore, the court properly sustained appellees’ preliminary objections with prejudice. The court’s ruling should stand.