author: Johnson, J,

text:
    Deibert v. Pennsylvania Turnpike Commission

      CP. of Lehigh County,
    no. 2006-C-0084.

      Victor F Cavacini, for plaintiffs.

      Brian R. Tipton, for defendant Pa. Turnpike Commission.

      Paul G. Lees, for defendant PA Gianni Homes Inc.

      Philip Daniel Priore, for defendants Corrado Plomes Inc., Minesite Road L.P. and Minesite LLC.

      John D. Kearney, for defendant Lower Macungie Township.
    June 15, 2010—
   Johnson, J,

INTRODUCTION

Before the court for consideration is the plaintiffs’ first amended complaint filed June 5, 2006 and plaintiffs’ second amended complaint filed August 5,2009. A non-jury trial was held on September 21-25, October 2 and November 13,2009. The court bifurcated the case, hearing all but the punitive damages claims and cross-claims.

I. Dedication

A. Findings of Fact

(1) On March 9, 2005, a deed of dedication was executed between defendant, Minesite Road L.P. as grantor, and the defendant, Lower Macungie Township (LMT), as grantee, wherein a drainage easement identified as tract 7 — basin 1 on lot 55 was dedicated to LMT.

(2) The storm water management system, comprising basin 1, which was designed by Lehigh Engineering Associates on behalf of Corrado Homes Inc. and constructed and installed by Schlouch Inc., a Gianni Homes Inc. subcontractor, has not been dedicated to LMT.

(3) LMT is not an owner of the dedicated land or any improvements thereon.

B. Conclusions of Law

Dedication does not vest a fee simple title in a municipality. In general terms, when property is dedicated, the public obtains an easement. The fee continues to be in the owner of the land, notwithstanding the public’s right to use the dedicated property. See Versailles Township Authority v. McKeesport, 171 Pa. Super. 377, 90 A.2d 581 (1952). Therefore, it is clear that LMT is not a landowner of the subject drainage basin, subject to the rights and responsibilities associated therewith.

II. Proposed Plan’s Violation of the Storm Water Management Act, 32 PS. §680.1, et seq. (SWMA), Little Lehigh Creek Watershed Act 167 — Storm Water Management Plan Enacted Under the Storm Water Management Act, 32 P.S. §680.1, et seq. (Act 167) and the Subdivision and Land Developement Ordinance of Lower Macungie Township (SALDO)

A. Findings of Fact

(1) Corrado, as developer, sought and received subdivision and land development approval from LMT for the construction of single-family homes on approximately 54 lots known as the Corrado Homes development.

(2) Corrado assigned its right, title and interest under an agreement of sale to Minesite.

(3) The subject land is within a watershed known as the “Little Lehigh Creek Watershed.”

(4) On January 15, 2004, LMT approved the Corrado Homes Subdivision under the SALDO which includes a storm water management ordinance.

(5) On or about March 16, 2005, Minesite conveyed a part of the Corrado Homes Subdivision, developed as phase I, to Gianni, who then renamed the part conveyed, “Hidden Valley Meadows.”

(6) Corrado and Minesite installed the storm water management facilities, as designed and approved, located within the Corrado Homes development.

(7) Gianni installed the storm water management facilities, as designed and approved, located within the Hidden Valley Meadows development.

(8) The storm water management system, as designed, approved and installed, has substantially increased the volume of surface water onto land owned by the plaintiffs, William F. Deibert and Alma Deibert, husband and wife and Michael P. Borowski and Pamela Borowski, husband and wife which has caused significant injury and damage that continues to the present day.

(9) Prior to the Corrado Homes and Hidden Valley Meadows developments being created, 15.11 acres of land within the watershed occupied by those developments drained to lands of Deibert and Borowski.

(10) After the Corrado Homes and Flidden Valley Meadows developments were created, an additional 32.7244 acres of land drained to the lands of Deibert and Borowski, which increased the land area flowing to Deibert and Borowski by 300 percent.

(11) Conrado made no downstream analysis. There are no public storm sewers or other storm water conveyance facilities on the lands of Deibert and Borowski.

(12) The storm water management facilities, as designed, approved and installed, are not adequate to reasonably manage substantial increases in volume of surface water created by the Corrado Homes and Hidden Valley Meadows developments.

(13) The discharge of surface water from the land owned by Gianni and Minesite empties into land owned by the Pennsylvania Turnpike Commission and is channeled by concrete pipes and empties onto land owned by Deibert and Borowski.

(14) A substantial area of land originally drained to closed depressions located on land now known as the Hidden Valley Meadows development.

(15) A “closed depression” is an area that is low-lying and has no surface water outlet, therefore retaining storm water that flows into it.

(16) Minesite and Gianni accomplished the redirection of off-site storm water onto the lands of Deibert and Borowski as the result of earth moving that created diversion berms and a system of storm water inlets and pipes that transport surface water to detention basin number 1, then through the Pennsylvania Turnpike Commission pipes and then onto the lands of Deibert and Borowski.

(17) The storm water management system, as designed, approved and installed, contains a diversion berm disguised as a planting buffer adjacent to Minesite Road (SR2015) that causes surface water to be interrupted from its natural flow and be diverted into the pipes, basins, streets and detention pond of the Corrado Homes and Hidden Valley Meadows developments that eliminates natural percolation and dissipation into the soil and causes a substantial increase in the volume of surface water onto lands of Deibert and Borowski.

(18) The storm water management plan, as designed, improved and installed, incorporates artificial facilities consisting of diversion berms, pipes, inlets, detention basins and other means, to channel surface water onto lands of Deibert and Borowski.

(19) Storm events are categorized based on how often a similar rain event will recur.

(20) The volume of water discharged onto the lands of Deibert and Borowski for a two year stonn, 10-year storm, 25-year storm and 100-year storm has been substantially increased by the storm water management facilities, as designed, approved and installed.

(21) The post-development volume associated with a 10-year storm (5.99 acre feet) is now the equivalent of a 100 year storm (5.56 acre feet) pre-developments. So, whereas, pre-development, the volume was such that it would return every 100 years on average, now that same volume will return every 10 years on average.

(22) Even though design standards under the SALDO call for the management of rain storm predicated on 100 year and greater storms, the storm water management facilities fail in minor rain storm events.

(23) The average increase in volume for subdivision and land development associated with a residential use is 17 percent.

(24) The surface water that was originally allowed to collect and seep into the closed depressions is now artificially channeled into storm sewers and, as diverted by the berm herein identified, the volume of surface water directed onto the lands of Deibert and Borowski has been increased by 170 percent.

(25) The storm water management system, as designed, approved and installed, at the Hidden Valley Meadows and Corrado Homes developments substantially increases the volume of storm water onto the lands of Deibert and Borowski, which has caused significant injury and continues to the present day.

(26) At various times, the region in which the subject properties are located experienced rainfall events, and as a result of the storm water management system, as designed, approved and installed, the volume of surface water caused a deluge of water onto land owned by Deibert and Borowski that caused a stream to form on their land, creating a serious safety hazard to persons, and causing substantial injury and damage to the lands of Deibert and Borowski.

(27) Given the underlying soil on the lands of Deibert and Borowski, classified as Washington silt loam, the increased volume of water from the Corrado Homes and Hidden Valley Meadows developments created by the storm water management plan, as designed, approved and installed, channeled through the Pennsylvania Turnpike Commission pipe and has created surface water conditions that will promote the formation of sink holes on lands of Deibert and Borowski.

(28) As a result of the continuous flow of storm water onto the land of Deibert, three sinkholes have formed.

(29) As a result of the deluge of surface water occasioned by the storm water management facilities, as designed, approved and installed, the lands of Deibert and Borowski have been rendered unsafe to pedestrian and vehicular travel during periods of significant rainfall.

(30) The storm water management facilities, as designed, approved and installed, have failed.

(31) The storm water management facilities, as designed, approved and installed, have created an emergency and, in the opinion of this court, the circumstances of this case require immediate abatement.

(33) The storm water management facilities, designed, approved and installed as part of the subdivision process, are defective, and violate applicable ordinances, regulations and statutes and liability arises to Deibert and Borowski for acts and/or omissions related thereto.

(34) The SALDO requires a storm to return to normal conditions, i.e. “dewatering,” within 12 hours after a storm ends. The storm water management facilities, as designed, approved and installed, do not result in a “dewatering” in 12 hours. The “dewatering” times range from 24.85 hours to 34.30 hours, so Deibert and Borowski continue to receive storm water beyond the time permitted by the SALDO.

(35) The elongation of the “dewatering” time of the detention pond results in a violation of Act 167 release rate criteria.

(36) The storm water management facilities, as designed, approved and installed, fail to meet design standards contained in Act 167.

(37) The storm water facilities, as designed, approved and installed, violate the Storm Water Management Act, 32P.S. §680.1, etseq. (SWMA) by virtue of the facilities’ violation of Act 167 and the SALDO, which were enacted pursuant to, and in furtherance of, the SWMA.

(38) The court finds the testimony of Chris Kerkusz, Robert Doll, Adrianne Doll, Richard Lands, Donald Dries, Michael Borowski, Louis F. Vittorio Jr., Grayson McNair and William E. Deibert credible.

(39) The court finds the testimony of William Erdman of low credibility due to the manner and content of his testimony. He repeatedly talked around questions, was somewhat defensive and continually qualified his answers when on cross-examination.

(40) Gianni and Corrado did everything LMT required of them.

B. Conclusions of Law

1. Storm water management act, 32 P.S. §680.1, etseq. (SWMA)

The stated policy and purpose of the SWMA is to:

“(1) Encourage planning and management of storm water runoff in each watershed which is consistent with sound water and land use practices.
“(2) Authorize a comprehensive program of storm water management designated to preserve and restore the flood carrying capacity of Commonwealth streams; to preserve to the maximum extent practicable natural storm water runoff regimes and natural course, current and cross-section of water of the Commonwealth; and to protect and conserve ground waters and ground-water recharge areas.
“(3) Encourage local administration and management of storm water consistent with the Commonwealth’s duty as trustee of natural resources and the people’s constitutional right to the preservation of natural, economic, scenic, aesthetic, recreational and historic values of the environment.” 32 P.S. §6803.

The legislative scheme of the SWMA requires that each county in the Commonwealth prepare and adopt a watershed storm water management plan for each watershed in the county. 32 P.S. §680.5.

The SWMA requires that once a watershed storm water plan is adopted and approved, that “each municipality shall adopt or amend, and shall implement such ordinances and regulations ... as are necessary to regulate development within the municipality in a manner consistent with the applicable watershed storm water plan and the provisions of this act” 32 P.S. §680.11.

Section 14 of the SWMA entitled, “Duty of persons engaged in the development of land” states:

“any person engaged in the alteration or development of land which may affect storm water runoff characteristics shall implement such measures consistent with the provisions of the applicable watershed storm water plan ... (2) to manage the quantity, velocity and direction of resulting storm water runoff in a manner which otherwise adequately protects health and property from possible injury.” 32 P.S. §680.13.

The definition of “person” is:

“An individual, partnership, public or private association or corporation ... municipality ... which is recognized by law as the subject of rights and duties. Wherever used in any section prescribing or imposing a penalty, the term ‘person’ shall include the members of a partnership, ... the officers, members, servants and agents of an association, officers, agents and servants of a corporation, and the officers of a municipality . . . .” 32 P.S. §680.4, definitions.

2. Little Lehigh Creek Watershed — Act 167 — Storm Water Manditzement Plan (Act 167)

The watershed storm water management plan applicable to the within matter is Act 167.

Section 108, duty of persons engaged in the development of land, provides:

“any landowner and any person engaged in the alteration or development of land which may affect storm water runoff characteristics shall implement such measures as are reasonably necessary to prevent injury to health, safety or other property. Such measures shall include such actions as are required to manage the rate, volume and direction of resulting storm water runoff in a manner which otherwise adequately protects health and property from possible injury.”

Section 301, general requirements, states:

“C----If diffused flow is proposed to be concentrated and discharged onto adjacent property, the developer must document that there are adequate downstream conveyance facilities to safely transport the concentrated discharge or otherwise prove that no harm will result from the concentrated discharge ....
“G. Storm drainage facilities and appurtenances shall be so designed and provided as to minimize erosion in watercourse channels and at all points of discharge.
“H. Consideration should be given to the design and use of volume controls for storm water management, where geology and soils permit. Areas of suitable geology for volume controls shall be determined by the municipality. Documentation of the suitability of the soil for volume controls shall be provided by the applicant. Volume controls shall be acceptable in areas of suitable geology where the soils are designated as well as drained in the County Soil Survey. Other soils may be acceptable for use of volume controls based on site-specific soils evaluation provided by the applicant.”

The foregoing standards are designed to avoid harm to adjoining landowners. The municipality is empowered to regulate these activities by the SWMA.

The storm water maintenance facilities of the Corrado Homes and Hidden Valley Meadows developments, as designed, approved and installed, violate section 108 of Act 167 as no volumetric considerations were required or proposed.

Cornado made no downstream analysis. There are no public storm sewers or other storm water “conveyance facilities” on lands of Deibert and Borowski. Therefore, the subdivision plan for Corrado Homes and Hidden Valley Meadows, as designed, approved and installed, violated section 301.C of Act 167.

The storm water maintenance facility, as designed, approved and installed, does not “minimize erosion in watercourse channels and at all points of discharge” and does not evidence “suitable geology for volume controls.” Therefore, the storm water maintenance facilities, as designed, approved and installed, violate sections 301.G and 301.H of Act 167.

3. LMT subdivision and land development ordiances (SALDO)

LMT enacted various Subdivision and Land Development Ordinances (SALDO) containing storm water management regulations. The sections of the SALDO violated by the storm water management facilities, as designed, approved and installed in this matter, are:

“Section 771.6 — Prevent overloading of downstream drainage systems and water courses as a result of increased rate of runoff caused by the proposed development;
“Section 772.3 — No storm water runoff or natural drainage shall be so diverted as to overload existing drainage systems, or create flooding or the need for additional drainage structures on other private properties or public lands;
“Section 774.3.1 — Detention ponds shall be designed so that they return to normal conditions within approximately 12 hours after the termination of the storm, unless the township engineer finds that downstream conditions may warrant other design criteria for storm water release;
“Section 774.3.1 — The developer shall verify that the operation of the detention facilities will not aggravate potential downstream peaking conditions;
“Section 774.3.2 — The developer shall demonstrate that such [detention] ponds are designed, protected and located to assure that public safety is maximized and health problems are prevented;
“Section 774.3.3 — The developer shall verify that the operation of the detention facilities will not aggravate potential downstream peaking conditions;
“Section 774.3.4 — Emergency overflow facilities shall be provided for detention facilities to handle runoff in excess of design flows;
“Section 791.1.2 — Measures used to control erosion and reduce sedimentation shall meet the standards and specifications of the Lehigh County Conservation District as set forth in the County Erosion and Sediment Control Handbook. The township engineer, or other officials as designated, shall ensure compliance with the appropriate specifications, copies of which are available from the district; and
“Section 791.3.1.8 — Grading will not be done in such a way as to divert water onto the property of other landowners without the written consent of the landowners.”

Therefore, the court finds that the storm water management facilities, as designed, approved and installed in this matter, violate the SWMAby virtue of the facilities’ violation of Act 167 and the SALDO, which were enacted pursuant to, and in furtherance of, the SWMA.

III. Direct Liability of Corrado and Minesite and Gianni

A. Findings of Fact

(1) The Corrado Homes Subdivision was comprised of two developments: the Hidden Valley Meadows development and the Corrado Homes development.

(2) Gianni developed the Hidden Valley Meadows development of the Corrado Homes Subdivision.

(3) Minesite developed the Corrado Homes development of the Corrado Homes Subdivision.

(4) The August 26,2003 application for an individual National Pollutant Discharge Elimination System (NP-DES) permit for storm water discharge associated with construction activities was submitted by Corrado containing inaccurate information on storm water runoff volumes. The application shows an increase in volume of .273 acre feet, or an approximate 17 percent increase in runoff volume. According to the storm water management plan submitted by Corrado and approved by LMT, the total volume generated by a two-year storm is 2.508 acre feet for an increase in volume of 170 percent, not 17 percent.

B. Conclusions of Law

Any claim by the plaintiffs for relief based upon misrepresentations in the NPDES permit application is denied because the amended complaint did not contain a cause of action based thereon.

Corrado obtained all necessary permits and approvals for the subdivision plan, specifically the storm water management facilities.

Corrado reasonably relied on said approvals in installing the storm water management system as designed and approved.

Corrado is not liable for the storm water management facilities’ (as designed, approved and installed) violation of the SWMAby virtue of the facilities’ violation of Act 167 and the SALDO, which were enacted pursuant to, and in furtherance of, the SWMA.

Because Gianni was not responsible for obtaining the approvals and permits necessary for Gianni to develop the Hidden Valley Meadows Development, Gianni reasonably relied on Corrado’s receipt of same and Gianni is not liable for violation of the SWMA by virtue of the facilities’ violation of Act 167 and the SALDO, which were enacted pursuant to, and in furtherance of, the SWMA.

IV. Immunity and LMT

A. Findings of Fact

(1) The SWMA creates a statutory cause of action.

(2) The Sovereign Immunity Act creates an exception to sovereign immunity where damages are recoverable in a statute creating a cause of action.

(3) Causes of action in this case arise out of a negligent act of LMT where the damages would be recoverable under a statute creating a cause of action, the SWMA.

B. Conclusions of Law

The enforcement mechanism contained in the SWMA is the right given to “any aggrieved person” to injunctive relief as well as to recover damages caused by a violation from a “landowner or other responsible person.” 32 P.S. §680.15.

Section 15 of the SWMA states, relevant part, that:

“(a) Any activity conducted in violation of the provisions of this act or of any watershed storm water plan, regulations or ordinances adopted hereunder, is hereby declared a public nuisance.
“(b) Suits to restrain, prevent or abate violations of this act or of any watershed storm water plan, regulation or ordinance adopted hereunder, may be instituted in equity or at law by any aggrieved person. Except in cases of emergency where, in the opinion of the court, the circumstances of the case require immediate abatement of the unlawful conduct, the court may, in its decree, fix a reasonable time during which the person responsible for the unlawful conduct shall correct or abate the same. The expense of such proceedings shall be recoverable from the violator in such manner as may now or hereafter be provided by law.
“(c) Any person injured by conduct which violates provisions of section 14 may, in addition to any other remedy provided under this act, recover damages caused by such violation from... [the] responsible person.” 32 P.S. §680.15.

Clearly, the S WMA creates a statutory remedy and the Sovereign Immunity Act provides that:

“The General Assembly . . . does hereby waive . . . sovereign immunity as a bar to an action against Commonwealth parties, for damages arising out of a negligent act where the damages could be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person not having available the defense of sovereign immunity.” 42 Pa.C.S. §8522(a).

Therefore, the court finds that Lower Macungie Township is not immune from suit in this case.

V. Statutory Liability of LMT

A. Findings of Fact

(1) The storm water maintenance facilities, as designed, violate the SWMA by virtue of the facilities’ violation of Act 167 and the SALDO, which were enacted pursuant to, and in furtherance of, the SWMA.

(2) LMT relies heavily on the Pennsylvania Department of Environmental Protection’s approval of the NPDES permit application and the Lehigh Valley Planning Commission’s review analysis of a proposed plan’s compliance with Act 167 in deciding whether to grant plan approval under Act 167.

(3) LMT has the responsibility under the SWMA, Act 167 and the SALDO to approve only those storm water management facilities that are in compliance with the SWMA, Act 167 and the SALDO.

(4) LMT is mandated to approve only those plans that are in accordance with design characteristics required under SALDO and Act 167.

(5) LMT had a duty under the SWMA to manage surface water runoff consistent with ground water and land use practices so as to preserve to the maximum extent practicable natural storm water runoff and to preserve the health, safety and welfare of the public by approving only those storm water management facility designs that are in compliance with the SWMA, Act 167 and the SALDO.

(6) LMT owed a duty to Deibert and Borowski to require Gianni, Corrado and Minesite to install surface water management facilities adequate to meet all of the design characteristics contained in SALDO, the SWMA and Act 167.

(7) LMT was negligent in failing to require Gianni, Corrado and Minesite to construct storm water management facilities in accordance with the SALDO, the SWMA and Act 167.

(8) LMT violated the SWMA, Act 167 and the SALDO in approving the storm water management facilities of the Subdivision Plan.

B. Conclusions of Law

Section 103 of Act 167, statutory authority, states that, “The municipality is empowered to regulate these activities by the authority of the [SWMA] and the [appropriate municipal code].”

Section 405 of Act 167, drainage plan review, mandates the obligations of a municipality and its engineer, as follows:

“A. The municipal engineer shall review the drainage plan for consistency with [Act 167] and against any additional storm drainage provisions contained in the municipal subdivision land development or zoning ordinance, as applicable.
“B. The municipality shall not approve any subdivision or land development (regulated activities 104.A and 104.D) or building permit application (regulated activities 104.C and 104.D) if the drainage plan has been found to be inconsistent with the storm water management plan as determined by the municipal engineer.

Although it is the custom of LMT to rely on the NP-DES permit and the findings of the Lehigh Valley Planning Commission, under Act 167, the SWMA and the SALDO, it ultimately is LMT’s responsibility to fully review the proposed plans for compliance with its SALDO and Act 167. LMT was negligent in its review of the storm water management plan submitted by Conrado and as a result of the approval of the inadequate storm water management plan, and the subsequent installation of the storm water management facilities in the Conrado Homes and Hidden Valley Meadow subdivision, the land of Deibert and Borowski has suffered serious damage as the result of excessive volumes of surface water runoff from the said subdivisions and injury and damages are continuing to this day.

LMT is liable for violating the SWMA by virtue of its approval of the storm water facilities’ plan that violates Act 167 and the SALDO, which were enacted pursuant to, and in furtherance of, the SWMA.

VI. Indemnification

A. Findings of Fact

(1) Prior to commencing any construction, both Mine-site and Gianni were required by LMT to execute a “subdivision improvement agreement.”

(2) The subdivision improvement agreement contains an indemnification provision that reads as follows:

“A. Developer hereby agrees to exonerate, indemnify and save harmless the township . . . from any and all claims, actions, awards, verdicts and judgments, together with reasonable counsel fees, based upon or arising out of the approval of any and all aspects of the design, construction or development of the said subdivision and land development . . . specifically including the design, construction and maintenance of storm water drainage facilities, for damages ... to person or properties caused by or sustained in connection with the design, construction and development of said subdivision and land development, developer’s performance under the subdivision improvement agreement and the subdivision maintenance agreement, and any conditions created by the aforesaid design, construction or development; and if requested by the township, to assume without expense to township, the defense of any claims or actions against the township arising out of any of the approvals made by the township of subdivision designs ....”

(3) The indemnification language contained in the subdivision improvement agreement does not specifically state that Minesite and Gianni agreed to indemnify LMT for LMT’s own negligence.

B. Conclusions of Law

The court must strictly construe the scope of the indemnity contract against LMT and must determine the intention of the parties. See Jacobs Constructors Inc. v. NPS Energy Services Inc., 264 F.3d 365 (3d Cir. 2001).

An indemnity agreement that covers loss due to the indemnitee’s own negligence must be clear and unequivocal. Id. (citing Perry v. Payne, 217 Pa. 252, 66 A. 553 (1907). “[T]here can be no presumption that the indemnitor intended to assume the responsibility unless the contract puts it beyond doubt by express stipulation. No inference from words of general import can establish it.” Perry, supra at 262, 66 A. at 557; see also, Ruzzi v. Butler Petroleum Company, 527Pa. 1,588 A.2d 1 (1991).

Further, the indemnification contract must be construed against LMT, the party who construed the contract and is seeking indemnification for its own negligence. Any ambiguities in the contract, or silence on an issue, must be construed against LMT. See Ratti v. Wheeling Pittsburgh Steel Corporation, 758 A.2d 695, 702 (Pa. Super. 2000); Hershey Foods Corporation v. General Electric Service Co., 422 Pa. Super. 143, 149, 619 A.2d 285, 288-290 (1992), appeal denied, 536 Pa. 643, 639 A.2d 29 (1993)(citing Ruzzi, supra).

Because the indemnification language contained in the January 21, 2005 agreement does not contain express language that Minesite and Gianni agreed to indemnify LMT for LMT’s own negligence, LMT’s claim for indemnification fails.

VII. Pennsylvania Turnpike Commission

A. Findings of Fact

(1) On or about April 17, 1959 Iva Deibert (plaintiff William F. Deibert’s mother) and plaintiff William F. Deibert settled and conveyed the condemned portion of their property located on East Texas Road (Deibert property) by deed to the Pennsylvania Turnpike Commission.

(2) As part of the settlement, the Deiberts received $8,000 and executed a release on behalf of the Pennsylvania Turnpike Commission which included, but was not limited to, the Pennsylvania Turnpike Commission’s right to discharge storm water onto the Deibert property.

(3) Said release was filed with said deed and states in relevant part that the Deiberts “do remise, release, quitclaim, and forever discharge the Pennsylvania Turnpike Commission,..., of and from any and all actions, rights of action, suits, demands, claims and damages of every type and character whatsoever which in law of equity we ever had, now have or may hereafter have for or on account of the right to damages heretofore accruing to” the Deiberts.

(4) In addition, within the deed, the Deiberts made the following representation: “grantors release, quitclaim and forever discharge the grantee,... from any and all . . . claims and damages ... by reason of construction, operation and maintenance of the Turnpike through or upon the land herein conveyed and any incidental or consequential damage to any remaining portion of the lands.”

(5) Therefore, based on the deed and release, the Pennsylvania Turnpike Commission had the legal authority to discharge storm water from its property, and in the manner in which it has done so, since 1959.

(6) No special site development considerations were given to the downstream landowners, Pennsylvania Turnpike Commission and the plaintiffs, by Corrado, Minesite and Gianni.

(7) The grading of the Corrado Homes Subdivision resulted in filling in and draining of closed depressions, diverting storm water to the Pennsylvania Turnpike and the lands of the plaintiffs.

(8) No one contacted the Pennsylvania Turnpike Commission regarding the Corrado Homes Subdivision’s storm water management during its planning, approval process or construction.

(9) The Pennsylvania Turnpike Commission did not give Corrado, Minesite or Gianni approval or consent to change the natural course of storm water drainage onto the Pennsylvania Turnpike’s property.

(10) The Pennsylvania Turnpike Commission did not give Corrado, Minesite or Gianni approval or consent to collect storm water on its property and direct the discharge of same directly at the Pennsylvania Turnpike’s 48 inch pipe.

(11) The Pennsylvania Turnpike Commission did not give Corrado, Minesite or Gianni approval to triple the volume of storm water discharged onto its property.

(12) From the date the Pennsylvania Turnpike was originally constructed to the present date, the Pennsylvania Turnpike Commission has taken no action through maintenance or additional construction to increase the storm water runoff from its roadway or adjoining properties near the Deibert property.

B. Conclusions of Law

Based on the foregoing findings of fact, the court finds that the defendant, Pennsylvania Turnpike Commission, is not liable for any violations of the common law, the SWMA, Act 167 or the SALDO.

VIII. Trespass As To All Defendants

The court finds that none of the defendants are liable under a common-law trespass theory.

IX. Conclusion

For the reasons set forth above, the court finds that the defendants, Pennsylvania Turnpike Commission, P.A. Gianni Homes Inc., Corrado Homes Inc. and Minesite Road L.P., are not liable for violation of the SWMA by virtue of the Corrado Homes Subdivision storm water management facilities’ violation of Act 167 and the SALDO, which were enacted pursuant to, and in furtherance of, the SWMA.

Additionally, the court finds no liability as to any of the defendants under the common-law theory of trespass.

However, the court finds that the defendant, Lower Macungie Township, is liable to Deibert and Borowksi under the SWMA due to its violation of that Act and further finds that Deibert and Borowksi are entitled to certain statutory remedies set forth therein. This court finds that an emergency exists and that immediate abatement is warranted.

Verdict is entered in favor of the defendant, Pennsylvania Turnpike Commission, and against the plaintiffs, William F. Deibert and Alma Deibert, husband and wife, on Counts I, II and III. Verdict is entered in favor of the defendant, Pennsylvania Turnpike Commission, and against the plaintiffs, Michael P. Borowski and Pamela Borowski, husband and wife, on Counts XVIII, XIX and XX.

Verdict is entered in favor of the defendant, P.A. Gianni Homes, and against the plaintiffs, William F. Deibert and Alma Deibert, husband and wife, on Counts IV, V and VI.

Verdict is entered in favor of the defendant, P.A. Gianni Homes, and against the plaintiffs, Michael P. Borowski and Pamela Borowski, husband and wife, on Counts XXI, XXII and XXIII.

Verdict is entered in favor of defendant, Corrado Homes, and against the plaintiffs, William F. Deibert and Alma Deibert, husband and wife, on Counts VII, VIII and IX. Verdict is entered in favor of defendant, Corrado Homes, and against the plaintiffs, Michael P. Borowski and Pamela Borowski, husband and wife, on Counts XXIV, XXV and XXVI.

Verdict is entered in favor of the defendant, Minesite Road, and against the plaintiffs, William F. Deibert and Alma Deibert, husband and wife, on Counts X, XI and XII. Verdict is entered in favor of the defendant, Minesite Road, and against the plaintiffs, Michael P. Borowski and Pamela Borowski, husband and wife, on Counts XXVII, XXVIII and XXIX.

Verdict is entered in favor of the defendant, Lower Macungie Township, and against the plaintiffs, William F. Deibert and Alma Deibert, husband and wife, on Counts XIV and XVI. Verdict is entered in favor of the defendant, Lower Macungie Township, and against the plaintiffs, Michael P. Borowski and Pamela Borowski, husband and wife, on Counts XXXI and XXXIII.

Verdict is entered in favor of the plaintiffs, William F. Deibert and Alma Deibert, husband and wife, and against the defendant, Lower Macungie Township, on Counts XIII and XV.

Verdict is entered in favor of the plaintiffs, Michael P. Borowski and Pamela Borowski, husband and wife, and against the defendant, Lower Macungie Township, on Counts XXX and XXXII.

Defendant, Lower Macungie Township, shall:

(1) Within one year of the date of this decision, correct or abate the conditions resulting from the township’s unlawful conduct and by installing those storm water facilities required to alleviate the surface water problems described in the plaintiffs’ first amended complaint and second amended complaint, in a manner consistent with common law, the Lower Macungie Subdivision And Land Development Ordinance, and all other applicable statutes, laws and regulations, and especially to alleviate problems created by the installation of artificial facilities described in the first amended complaint and second amended complaint, and to immediately remediate acts, facilities and conditions causing damage to the plaintiffs’ land and pay all costs associated therewith;

(2) Within 60 days of the date of this decision, submit to the undersigned a plan and design to install a storm water extension from the Corrado Homes detention pond to the nearest appropriate detention pond in such a manner as to minimize the effect thereof on the lands of Deibert and Borowski (remediation plan).

The court will hold a conference with counsel for the plaintiffs and Lower Macungie Township to review the remediation plan on Monday, September 13,2010 at9:30 A.M. in Courtroom 5B of the Lehigh County Court of Common Pleas.

ORDER

And now, June 15,2010, it is ordered that, based upon the findings of fact and conclusions of law set forth in the accompanying opinion:

Verdict is entered in favor of the defendant, Pennsylvania Turnpike Commission, and against the plaintiffs, William F. Deibert and Alma Deibert, husband and wife, on Counts I, II and III. Verdict is entered in favor of the defendant, Pennsylvania Turnpike Commission, and against the plaintiffs, Michael P. Borowski and Pamela Borowski, husband and wife, on Counts XVIII, XIX and XX.

Verdict is entered in favor of the defendant, P.A. Gianni Plomes, and against the plaintiffs, William F. Deibert and Alma Deibert, husband and wife, on Counts IV, V and VI. Verdict is entered in favor of the defendant, P.A. Gianni Homes, and against the plaintiffs, Michael P. Borowski and Pamela Borowski, husband and wife, on Counts XXI, XXII and XXIII.

Verdict is entered in favor of defendant, Corrado Homes, and against the plaintiffs, William F. Deibert and Alma Deibert, husband and wife, on Counts VII, VIII and IX. Verdict is entered in favor of defendant, Corrado Homes, and against the plaintiffs, Michael P. Borowski and Pamela Borowski, husband and wife, on Counts XXIV, XXV and XXVI.

Verdict is entered in favor of the defendant, Minesite Road, and against the plaintiffs, William F. Deibert and Alma Deibert, husband and wife, on Counts X, XI and Xll. Verdict is entered in favor of the defendant, Minesite Road, and against the plaintiffs, Michael P. Borowski and Pamela Borowski, husband and wife, on Counts XXVII, XXVIII and XXIX.

Verdict is entered in favor of the defendant, Lower Macungie Township, and against the plaintiffs, William F. Deibert and Alma Deibert, husband and wife, on Counts XIV and XVI. Verdict is entered in favor of the defendant, Lower Macungie Township, and against the plaintiffs, Michael Borowski and Pamela Borowski, husband and wife, on Counts XXXI and XXXIII.

Verdict is entered in favor of the plaintiffs, William F. Deibert and Alma Deibert, husband and wife, and against the defendant, Lower Macungie Township, on Counts XIII and XV.

Verdict is entered in favor of the plaintiffs, Michael P. Borowski and Pamela Borowski, husband and wife, and against the defendant, Lower Macungie Township, on Counts XXX and XXXII.

Defendant, Lower Macungie Township, shall:

(1) Within one year of the date of this decision, correct or abate the conditions resulting from the township’s unlawful conduct and by installing those storm water facilities required to alleviate the surface water problems described in the plaintiffs’ first amended complaint and second amended complaint, in a manner consistent with common law, the Lower Macungie Subdivision And Land Development Ordinance, and all other applicable statutes, laws and regulations, and especially to alleviate problems created by the installation of artificial facilities described in the first amended complaint and second amended complaint, and to immediately remediate acts, facilities and conditions causing damage to the plaintiffs’ land and pay all costs associated therewith;

Within 60 days of the date of this decision, submit to the undersigned a plan and design to install a storm water extension from the Corrado Homes detention pond to the nearest appropriate detention pond in such a manner as to minimize the effect thereof on the lands of Delbert and Borowski (remediation plan).

The court will hold a conference with counsel for the plaintiffs and Lower Macungie Township to review the remediation plan on Monday, September 13,2010 at 9:30 A.M. in Courtroom 5B of the Lehigh County Court of Common Pleas.


source: Caselaw Access Project

author: STEINBERG, J.,

license: Public Domain

text:
    Commonwealth v. Husky

      C.P. of Lehigh County,
    no. CR-848-2010.

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

      Karen J. Schular, for defendant.
    August 3, 2010
   STEINBERG, J.,

The defendant, Ronald Husky, is charged with possession with intent to deliver a controlled substance, possession of drug paraphernalia, and driving without a license. Heroin was retrieved from the defendant’s vehicle after it was lawfully stopped for blocking an alleyway in the 200 block of North 12th Street in Allentown. Additionally, heroin and a hypodermic needle were seized from the defendant after he was taken into custody.

On May 17, 2010, a “motion to suppress” was filed on behalf of the defendant alleging the following: (1) the “stop, search and seizure was conducted without reasonable suspicion or probable cause;” (2) the “search of the defendant’s vehicle was conducted without a warrant,” and (3) “the search and seizure of the defendant and his vehicle was overbroad.” The defendant maintains that, because of those constitutional missteps, the heroin and needle should be suppressed. A hearing on the motion to suppress was held on June 8, 2010.

The Commonwealth presented the testimony of Officer Kyle French and Sergeant Eric Heicklen at the suppression hearing. Officer French testified that at approximately 7 p.m., he was dispatched to the 200 block of 12th Street in Allentown regarding a disturbance involving a bald white male in a white vehicle who was upset about the loss of money or drugs. The original call was received from an anonymous source.

Officer French, who was in a patrol vehicle driven by Officer Jack DeWalt, observed a vehicle matching the description provided in the dispatch parked on 12th Street. The vehicle, a white Dodge Durango, was partially blocking Emmett Street, and preventing other vehicles’ from proceeding without interference.

Officer DeWalt turned the patrol vehicle around, and as he did so, the Durango pulled out and proceeded north on 12th Street. The patrol vehicle lights were then activated and a vehicle stop was initiated. The officers exited their patrol vehicle, Officer French approached the passenger side, and Officer DeWalt the driver’s side. Two males were inside the vehicle, the defendant, who was the driver, and Collin Freitas, a bald white male. Officer DeWalt asked the defendant for his identification, but the defendant was unable to provide any documentation. The defendant was then asked to write down his name and date of birth, and when that information was checked, it was learned that the defendant’s license was suspended. As a result, both occupants were asked to step out of the vehicle where they were frisked. No weapons were discovered.

Sergeant Eric Heicklen, who also observed the Durango blocking the alleyway, arrived and learned that the defendant was not permitted to operate the vehicle. He permitted the defendant to contact his wife to drive the vehicle, but attempts to reach her proved unsuccessful. As a result, in preparation to tow the vehicle, an inventory search of the vehicle was conducted. Two bundles of heroin were discovered in the center console by Sergeant Heicklen. Both the defendant and Mr. Freitas were then arrested and searched. A bag of heroin was found in the defendant’s left front pants pocket, and later at headquarters, the hypodermic needle was discovered on him.

DISCUSSION

It is well-established that a forcible stop of a motor vehicle by the police constitutes a seizure triggering the constitutional protections of the Fourth Amendment. Commonwealth v. Clinton, 905 A.2d 1026, 1030 (Pa. Super. 2006) citing Commonwealth v. Campbell, 862 A.2d 659, 663 (Pa. Super. 2004). See Commonwealth v. Knotts, 444 Pa. Super. 60, 64, 663 A.2d 216, 218 (1995) (“When police stop a vehicle in this Commonwealth for investigatory purposes, the vehicle, and its occupants, are considered ‘seized’ and the seizure is subject to constitutional constraints.”). Therefore, the decision by the police to stop the Durango operated by the defendant constituted a seizure, and requires this court to evaluate the lawfulness of that seizure. In other words, did the police have either probable cause or reasonable suspicion to initiate a stop of the vehicle.

Probable cause exists if the facts and circumstances within the knowledge of the police at the time of the stop are sufficient to justify a person of reasonable caution in the belief that an offense has been or is being committed. Commonwealth v. Luv, 557 Pa. 570, 575, 735 A.2d 87, 90 (1999) (citing Commonwealth v. Gibson, 536 Pa. 123, 130, 638 A.2d 203, 206 (1994)); see Commonwealth v. Oppel, 754 A.2d 711, 713 (Pa. Super. 2000). In order to establish reasonable suspicion, the police “must articulate specific observations which, in conjunction with reasonable inference derived from those observations, led [them] reasonably to conclude, in light of [their] experience, that criminal activity was afoot and that the person stopped was involved in that activity.” Commonwealth v. Bennett, 827 A.2d 469, 477 (Pa. Super. 2003). The information necessary to establish “reasonable suspicion” is less in terms of quantity and content than what would be required to establish probable cause. Commonwealth v. Cook, 558 Pa. 50, 59, 735 A.2d 673. 678 (1999); Commonwealth v. Shine, 784 A.2d 167, 170 (Pa. Super. 2001). Both, however, require an evaluation of the totality of the circumstances. Commonwealth v. Zhahir, 561 Pa. 545, 552, 751 A.2d 1153, 1156 (2000); Commonwealth v. Bryant, 866 A.2d 1143 (Pa. Super. 2005).

Police can initiate an investigatory stop when they have reasonable suspicion of a Vehicle Code violation. Commonwealth v. Chase, 599 Pa. 80, 102,960 A.2d 108, 120 (2008); Commonwealth v. Muhammed, 992 A.2d 897, 900 (Pa. Super. 2010); Clinton, 905 A.2d at 1030. Section 6308 of the Vehicle Code provides:

“Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or engine number or the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.” 75 Pa.C.S. §6308(b). (emphasis added)

In that regard, the constitution does not prevent the police from “stopping and questioning motorists when they witness or suspect a violation of traffic laws, even if it is a minor offense.” Chase, 960 A.2d at 113. “Reasonable suspicion sufficient to stop a motorist must be viewed from the standpoint of an objectively reasonable police officer... A finding of reasonable suspicion does not demand a meticulously accurate appraisal of the facts. Indeed, even stops based on factual mistakes generally are constitutional if the mistake is objectively reasonable.” Id. (internal citations and quotation marks omitted)

Here, the initial police response was due to an anonymous call about a bald man in a white car crying over spilt money or drugs. Upon their arrival, the officers did observe a white Durango, which was blocking an intersection in violation of 75 Pa.C.S. §3353(a)(iii). As a result, the police commenced an investigation into the facts and circumstances of the dispatch and the Vehicle Code violation.

The information the officers had been provided by dispatch was limited, and while not sufficient to conclude that criminal activity was afoot, it did not preclude them from conducting an investigation. Commonwealth v. Brown, 996 A.2d 473, 477 (Pa. 2010) quoting Adams v. Williams, 407 U.S. 143, 147 (1972) (“Informants tips like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and reliability. One simple rule will not cover every situation. Some tips, completely lacking indicia of reliability, would either warrant no police response, or require further investigation before a forcible stop of a suspect would be authorized), (emphasis added)

Furthermore, although the anonymous nature of the information does not preclude a finding of “reasonable suspicion,” prior to such a finding an independent police investigation must corroborate that the information has “sufficient indicia of reliability.” Id. “[Tjhere are situations in which an anonymous tip, suitably corroborated, exhibits ‘sufficient indicia of reliability’ to provide reasonable suspicion____” Alabama v. White, 496 U.S. 325, 327 (1990). One of those situations is where the anonymous caller demonstrates inside knowledge. Id. at 332.

In Commonwealth v. Hawkins, 547 Pa. 652, 656-57, 692 A.2d 1068, 1070-71 (1997) the suitability of the corroboration was explained in the following manner:

“If the police respond to an anonymous call that a particular person at a specified location is engaged in criminal activity, and upon arriving at the location see a person matching the description but nothing more, they have no certain knowledge except that the caller accurately described someone at a particular location. As the United States Supreme Court observed in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the fact that a suspect resembles the anonymous caller’s description does not corroborate allegations of criminal conduct, for anyone can describe a person who is standing in a particular location at the time of the anonymous call. Something more is needed to corroborate the caller’s allegations of criminal conduct. The fact that the subject of the call was alleged to be carrying a gun, of course, is merely another allegation, and it supplies no reliability where there was none before. And since there is no gun exception to the Terry requirement for reasonable suspicion of criminal activity, in the typical anonymous caller situation, the police will need an independent basis to establish the requisite reasonable suspicion.”

The initial police response here was only able to corroborate the color of the vehicle reported by the anonymous caller. Due to the limited anonymous information, more investigation was required to justify a stop of the Durango. Commonwealth v. Fell, 901 A.2d 542, 545 (Pa. Super. 2006) (inside information — “a specific familiarity with [the person’s] affairs provides corroboration for reasonable suspicion.”); Commonwealth v. Stevenson, 832 A.2d 1123 (Pa. Super. 2003) (Unsubstantiated radio broadcast that a person is engaged in narcotics activity does not provide requisite basis for investigatory detention); Commonwealth v. Hayward, 756 A.2d 23 (Pa. Super. 2000) (Tip from anonymous pedestrian that a tall man in the park was brandishing a weapon did provide reasonable suspicion).

The anonymous information also lacked the urgency associated with an emergency. McNeil v. City of Easton, 694 F.Supp. 375, 389 (E.D. Pa. 2010) (Gardner, J) (“An anonymous 911 reporting an ongoing emergency is entitled to a ‘higher degree of reliability and requires a lesser showing of corroboration than a tip that alleges general criminality. Thus, when an emergency is reported by an anonymous caller, the need for immediate action may outweigh the need to verify the reliability of the caller.’”), (citations omitted) The nature of the call in this case, while reflecting an individual who was “freaking out” over lost money or drugs, did not suggest anything other than anger. No one was in apparent danger because of the bald man’s rant. Therefore, the anonymous call only justified further investigation but not a seizure.

However, the Vehicle Code violation provided a lawful basis to detain the occupants of the Durango. Even though the Vehicle Code violation was a minor offense, and not the only reason for stopping the vehicle, it provided sufficient justification for bringing the Durango to a halt. In other words, the motivations of the officers for stopping the vehicle are not subject to constitutional inquiry as long as they can “articulate a reasonable suspicion of a Vehicle Code violation____” Chase, 960 A.2d at 120. See Whren v. U.S., 517 U.S. 806, 813 (1996); U.S. v. Pipes, 125 F.3d 638, 640 (8th Cir. 1997); Commonwealth v. Henley, 909 A.2d 352, 358 (Pa. Super. 2006) (Officer who pulled behind suspect’s vehicle based on radio broadcast to stop vehicle, conducted a valid traffic stop based upon his observation of an expired registration sticker on license plate). Both Officer French and Sergeant Heicklen testified that the Durango was stopped in a way that blocked the ingress and egress of the roadway. Therefore, the officers had reasonable suspicion to stop the vehicle to determine whether the actions of the driver were a violation or were “necessary to avoid conflict with other traffic or to protect the safety of any person or vehicle.” 75 Pa.C.S. §3353(a).

Once the vehicle was lawfully stopped, Officer DeWalt was permitted to ask the defendant for his identification. Inquiries concerning identification do not implicate the Fourth Amendment. Commonwealth v. Campbell, 862 A.2d 659, 664 (Pa. Super. 2004) (“One’s name is subject to repeated disclosure every day, and we find identifying oneself to be a minimal intrusion.”). The defendant did not possess any identification, but he did write down his name and date of birth. The officers, with this information, were able to learn that the defendant’s license was suspended. As a result, the two occupants were asked to exit the vehicle. Police may request both drivers and passengers to “alight” from a lawfully stopped car without reasonable suspicion that criminal activity is afoot. Commonwealth v. Pratt, 930 A.2d 561, 564 (Pa. Super. 2007).

The defendant, due to his license suspension, was not permitted to operate the vehicle, and unless someone else could drive the vehicle, it would have to be towed. Sergeant Heiclden permitted the defendant to contact his wife to drive the vehicle, but attempts proved unsuccessful. A decision was then made to tow the vehicle, but before doing so, an inventory search of the vehicle was necessary. The propriety of an inventory search has been explained as follows:

“In determining whether a proper inventory search has occurred, the first inquiry is whether the police have lawfully impounded the automobile, i.e., have lawful custody of the automobile . . . The second inquiry is whether the police have conducted a reasonable inventory search. ” Commonwealth v. Thompson, 2010 WL 2795027 (Pa. Super.) quoting Commonwealth v. Henley, 909 A.2d 352, 359 (Pa. Super. 2006).
“The authority of the police to impound vehicles derives from the police’s reasonable community care-taking functions. . . . Such functions include removing disabled or damaged vehicles from the highway, impounding automobiles which violate parking ordinances (thereby jeopardizing public safety and efficient traffic flow), and protecting the community’s safety.” Id. The community care-taking functions “coexists” with 75 Pa.C.S. §6309.2, which in pertinent part provides:
“(a) General rule. — Subject to subsection (d), the following shall apply:
“(1) If a person operates a motor vehicle or combination on a highway or trafficway of this Commonwealth while the person’s operating privilege is suspended, revoked, canceled, recalled or disqualified or where the person is unlicensed, as verified by an appropriate law enforcement officer in cooperation with the department, the law enforcement officer shall immobilize the vehicle or combination or, in the interest of public safety, direct that the vehicle be towed and stored by the appropriate towing and storage agent pursuant to subsection (c), and the appropriate judicial authority shall be so notified.”

In light of the defendant’s license suspension, the Durango was lawfully in the custody of the police. Furthermore, under Allentown Police policy 4.3.7(A) “[vjehicles that are operated by unlicensed or suspended operators shall be towed.”

The subsequent inventory search was reasonable if.it [was] conducted pursuant to reasonable standard police procedures and in good faith and not for the sole purpose of investigation. Id. at *4. “Inventory searches serve one or more of the following purposes: (1) to protect the owner’s property while it remains in police custody; (2) to protect the police against claims or disputes over lost or stolen property; (3) to protect the police from potential danger; and (4) to assist the police in determining whether the vehicle was stolen and then abandoned.” Henley, 909 A.2d at 359.

Sergeant Heicklen’s decision to permit the defendant to contact his wife demonstrates that the actions of the police were in good faith and not solely for investigatory purposes. The defendant could not take control of the vehicle and was unable to contact anyone who was authorized to do so. Commonwealth v. Woody, 451 Pa. Super. 324, 328, 679 A.2d 817, 819 (1996) (“[sjince no one was available to move the car, which was blocking the street, the police were required to take custody of the vehicle and an inventory search was proper.”). The inventory search also complied with the Allentown Police Policy. The policy of the Allentown Police Department, which has the stated intent “to list all valuable items to safeguard them for the owner.” is reasonable.

Sergeant Heicklen discovered the heroin in the center console. The decision to inventory the console was reasonable because valuables are often stored in a console to keep them hidden from view. See South Dakota v. Opperman, 428 U.S. 364 (1976) (inventory search was reasonable where marijuana found in unlocked glove compartment); Henley, 909 A.2d at 356 (discovery of .38 caliber revolver under driver’s seat during inventory search was reasonable). It would be incongruous to conduct an inventory search where one of its purposes is to protect the owner’s property, and then not search areas where owner’s safeguard their property. Items in plain view, a glove compartment, or console are all within the scope of a reasonable inventory search.

The reasonableness of an inventory search has been guided by the following requirements:

“[TJhe Commonwealth must show that the search was in fact an inventory search pursuant to the objectives laid down in Opperman[.] The hearing judge must be convinced that the police intrusion into the automobile was for the purpose of taking an inventory of the car and not for the purpose of gathering incriminating evidence. Those facts and circumstances which the hearing judge must consider include the scope of the search, the procedure utilized in the search, whether any items of value were in plain view, the reasons for and nature of the custody, the anticipated length of the custody, and any other facts which the court deems important in its determination. If, after weighing all the facts and circumstances, the court is of the opinion that it was an inventory search of an automobile lawfully in police custody, then any evidence seized as a result of this ‘reasonable’ inventory search is admissible. If, on the other hand, the hearing judge determines that the Commonwealth has not shown that the search was part of the police care-taking function rather than their investigative function, the probable cause-warrant standard must be used for determining reasonableness.” Commonwealth v. Hennigan, 753 A.2d 245, 255-256 (Pa. Super. 2000), quoting Commonwealth v. Brandt, 244 Pa. Super. 154, 162-63, 366 A.2d 1238, 1241 (1976).

The good-faith actions of the police demonstrate that the inventory search was part of the police care-taking function rather than their investigative function. The discovery of the heroin in the console was a product of the inventory search, not part of a drug investigation. If the defendant was operating the Durango with a license, no inventory search would have been required or justified.

Finally, after the discovery of the heroin in the console, the defendant was arrested and searched leading to the discovery of additional heroin and later the hypodermic needle. The search incident to arrest was proper, “[a] warrantless search incident to a lawful arrest is reason able, and no justification other than that required for the arrest itself is necessary to conduct such a search. . . . Stated another way, in all cases of lawful arrests, police may fully search the person incident to the arrest.” Commonwealth v. Ingram, 814 A.2d 264, 272 (Pa. Super. 2002). (emphasis in original) (citation omitted)

For all the foregoing reasons, the police had reasonable suspicion to stop the defendant’s vehicle and to, thereafter, seize the heroin found during a search of the defendant’s vehicle. With the discovery of the heroin inside the vehicle, the police had probable cause to arrest the defendant and to conduct a search of his person.

ORDER

And now, August 3, 2010, upon consideration of the defendant’s “motion to suppress,” and after a hearing thereon; it is hereby ordered that the “motion to suppress” is denied.

      .35P.S. §780-113(a)(30).

      . 35P.S. §780-113(a)(32).

      .75 Pa.C.S. § 1501(a).

      . Motion to suppress, ¶¶12,13,14.

      . The court in Chase utilized various federal cases, including the following minor violations to demonstrate that reasonable suspicion is sufficient to justify a vehicle stop: United States v. Booker, 496 F.3d 717, 721-22 (D.C. Cir. 2007) (reasonable suspicion existed to investigate placement of temporary tag on vehicle); United States v. Delfin-Colina, 464 F.3d 392, 394-95 (3d Cir. 2006) (reasonable suspicion to investigate whether necklace was illegally hanging from rearview mirror); see also, Muhammed, 992 A.2d at 899 (reasonable suspicion to stop defendant’s car where officer observed defendant’s center brake light fail to illuminate upon application of brakes).

      . Affidavit of probable cause, ¶2.

      . See Allentown Police Department general order 4.3, which governs “Towing, locked vehicles, abandoned vehicles, inventory searches.”

      . See general order 4.3 section 4.3.6.


author: Hodge, J,

text:
    Johnston v. Johnston

      C.P. of Lawrence County,
    no. 11796 of 2007, C.A.

      William M. Panella, for plaintiff.

      Bradley G. Olson Jr., for defendant.
    August 23, 2010
   Hodge, J,

The parties in this case were married in February of 1980. Subsequently, a complaint in divorce was filed by the plaintiff, Michael Johnston, on November 26,2007 claiming that the marriage was irretrievably broken. The court then issued a divorce decree on May 6, 2009 after being presented with both parties’ consent as well as a marital dissolution and property agreement (agreement) executed by both parties. It is the agreement which brought this matter before the court for a contempt hearing on July 30,2010. Plaintiff alleges that defendant failed to convey all of the marital residence to the plaintiff as required by the agreement.

The marital residence in question is comprised of five lots. Three of these lots were purchased when the parties first bought the marital residence; these were conveyed to plaintiff via a quit claim deed executed by the defendant and recorded on April 30,2009. The quit claim deed, however, inadvertently excluded the remaining two lots, which were purchased by the parties subsequent to the original three and located directly next thereto. Defendant refuses to convey the remaining two lots to plaintiff because she believes they are not included in the marital residence described by the agreement.

It is well-established that marital settlement agreements are governed by contract law, and when interpretation of such an agreement is necessaiy, a court must look to the intention of the contracting parties. Kripp v. Kripp, 578 Pa. 82, 90, 849 A.2d 1159, 1163 (2004). When construing agreements involving clear and unambiguous terms, the court need only look to the document itself to deduce the intention of the parties. Vaccarello v. Vaccarello, 563 Pa. 93, 101, 757 A.2d 909, 913-14 (2000). Additionally, the court is bound to consider such contracts, without reference to outside matters, and it must ascertain the parties’ intentions when entering into the contract from the entire instrument. Purdy v. Purdy, 715 A.2d 473, 475 (Pa. Super. 1998).

Absent fraud, misrepresentation, or duress, spouses should be bound by the terms of their agreement. McMahon v. McMahon, 417 Pa. Super. 592, 599, 612 A.2d 1360, 1363 (1992). Moreover, it is a well-established principle of Pennsylvania law that property settlement agreements are presumed to be valid and binding upon the parties. McGannon v. McGannon, 241 Pa. Super. 45, 359 A.2d 431 (1976). Upon examining the agreement, the court notes that each party committed to adhere to the terms thereof, and relinquish all other interest in each other’s property. Accordingly, there cannot be a finding of fraud, misrepresentation or duress, and a valid contractual agreement exists between the parties.

In determining the intention of the parties, the court need only look to the agreement itself, as the court finds that it is plainly worded in clear and unequivocal terms. Vaccarello, at 101, 757 A.2d at 913-14. A review of the entire agreement allows this court to conclude that the contract was intended to be a complete and final division of all assets, interests, and involvement each party had in the other’s life. The court finds that in entering said agreement, it was the intention of the parties to divide all property and resolve any remaining issues in an effort to complete their divorce and move on in their lives.

A specific provision in the agreement provides for as follows:

“Wife to convey all [her] right, title and interest in the marital premises at 705 East Meyer Ave., New Castle, PA to husband. Husband to assume all liens, judgments, mortgages, encumbrances, insurance, taxes and upkeep of said property and to hold [Wife] harmless [from] any payments and/or expenses.”

Plaintiff (wife) contends that the two remaining lots were not included in this provision and are not part of the marital residence. However, the agreement itself allows this court to find otherwise. Any reference made in the agreement to the marital premise would naturally include the entire property owned by the parties and utilized throughout the course of marriage. All five of the lots were located directly next to one another, and they, in their entirety, comprise the marital residence at 705 East Meyer Ave., New Castle, Pennsylvania as it currently exists. To construe this agreement otherwise, would essentially be a modification to the contract and beyond the discretion of this court. See e.g., Vaccarello, at 101, 757 A.2d at 913-14; Creeks v. Creeks, 422 Pa. Super. 432, 435, 619 A.2d 754, 756 (1993) (a court cannot modify the plain meaning of the words under the guise of interpretation).

Plaintiff additionally contends that this court is prevented from ordering her to transfer the remaining two lots to the defendant, because the agreement violates the statute of frauds by failing to provide an adequate description of the land to be transferred. Plaintiff supports her position by referencing the case of American Leasing v. Morrison Company, 308 Pa. Super. 318, 454 A.2d 555 (1982). In Morrison, the Superior Court found that in order to properly convey an interest in land, three elements must be present: (1) an adequate description of the land; (2) consideration; and (3) the execution of both parties’ signatures.

For the reason’s set forth above, this court maintains that the description of the land in the agreement is adequate and clear. The marital residence includes all five lots owned by the parties. Accordingly, the court find’s defendant in contempt, and directs her to convey the remaining two lots to the plaintiff as set forth in the attached order.

ORDER

And now, August 23, 2010 the above-captioned case having been before the court for a hearing on plaintiff’s petition for contempt on July 30,2010 with the plaintiff, Michael Johnston, appearing with his attorney William M. Panella, Esquire, and with the defendant, Linda Johnston, appearing with her attorney, Bradley G. Olson Jr., Esquire, it is ordered and decreed as follows:

(1) The contempt petition of the plaintiff, Michael Johnston, brought against the defendant, Linda Johnston, for failing to convey portions of the marital residence, specifically listed as Lots 541-542 to the plaintiff is granted.

(2) Defendant shall purge herself of contempt by conveying said lots to the plaintiff within 30 days from the date of this order by quit claim deed prepared by the plaintiff’s attorney, William M. Panella.

(3) The prothonotary shall properly serve notice of this order and opinion by regular mail or personal service upon counsel of record for the parties.


author: FORD, J,

text:
    Baker v. Zoning Hearing Board of Salisbury Township

      C.P. of Lehigh County,
    no. 2009-C-5253.

      Edmund G. Hauff, for appellant,

      Victor F. Gavacini, for defendant.

      Erich J. Schock, for intervenors.

      July 14, 2010
   FORD, J,

Dexter F. Baker (appellant) filed a notice of appeal from the decision of the Zoning Flearing Board of Salisbury Township (board), which decision was dated September 1, 2009. In that decision, the board granted an application for two dimensional variances filed by the Little Lehigh Medical Building Condominium Owners Association (association), whose property is across a street from appellant’s. In its written decision, the board failed to make the findings necessary to support its issuance of the dimensional variances. Therefore, this case must be remanded to the board for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

The association is comprised of the owners of the property located at 1275 Cedar Crest Boulevard in Salisbury Township (property). The property, which is located at the northeast corner of the intersection of Cedar Crest Boulevard and Fish Hatchery Road, is zoned C-l commercial. The property has an office building with numerous doctors’ offices.

The association hired Felix Bartush of Bartush Signs Inc., to install “directory signs” on the property. Mr. Bartush proposed the installation of two freestanding signs on the property. One sign would be located along Cedar Crest Boulevard and one at the intersection of Cedar Crest Boulevard and Fish Hatchery Road. The sign at the intersection would replace a currently existing 20-square foot sign on the property. Each sign would be 13 feet, four inches in height, with an area of 90 square feet. However, Section 27-704 of the Salisbury Township Zoning Ordinance (zoning ordinance) permits signs no higher than 10 feet and no larger than 30 square feet. Mr. Bartush also proposed locating one of the signs within a street intersection’s “clear sight triangle” and incorporating an electronic message feature into both of the signs. Both of these are prohibited by the ordinance. Mr. Bar-tush, acting as agent for the association, applied for variances to allow for the installation of the signs.

The board conducted a public hearing on Mr. Bartush’s application for the variances on August 4, 2009. At the hearing, the board heard the testimony of Mr. Bartush and Dr. Bruce I. Rose, an owner of an office unit on the property and a representative of the association.

On September 1, 2009, the board issued its written decision. The board granted Mr. Bartush’s application for the two dimensional variances thereby authorizing him to construct the signs at the proposed size. However, the board denied Mr. Bartush’s variance request for placement of one of the signs within the clear sight triangle. The board also denied Mr. Bartush’s variance request for electronic, flashing messages on the signs.

On October 8,2009, the appellant filed an appeal from the decision of the board. In the appeal, appellant solely challenges the board’s decision to grant the two dimensional variances. Appellant owns residential property at the southeast corner of the intersection of Cedar Crest Boulevard and Fish Hatchery Road. Appellant and his counsel had appeared at the board hearing on August 4, 2009, to oppose Mr. Bartush’s application for the variances.

On October 21,2009, Salisbury Township intervened in this appeal by filing a praecipe for appearance. Intervention was granted on October 29, 2009.

On April 13, 2010, the court conducted an argument on the appellant’s appeal, but the court did not take additional testimony on the matter.

DISCUSSION AND CONCLUSIONS OF LAW

Appellant argues that the board committed an error of law and abused its discretion in granting Mr. Bartush’s application for the two dimensional variances. Because the board failed to explain its reasoning for granting the dimensional variances in its written decision, this court is unable to make a meaningful review and must remand the case to the board for further proceedings.

When reviewing a decision of a zoning board, the court must determine whether the board abused its discretion or committed an error of law. C & M Developers Inc. v. Bedminster Township Zoning Hearing Board, 573 Pa. 2, 14, 820 A.2d 143, 150 (2002). If the record includes findings of fact by a zoning board and the court does not take additional evidence, the findings of the board “shall not be disturbed by the court if supported by substantial evidence.” 53 P.S. §11005-A. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Lantos v. Zoning Hearing Board of Haverford Township, 153 Pa. Commw. 591, 597. 621 A.2d 1208, 1211 (1993).

To enable effective review by the trial court, the Pennsylvania Municipalities Planning Code (code), 53 P.S. §§10101-11107, requires that a zoning board render a written decision when an application for a variance is contested. 53 P.S. §10908(9). Such written decision must include “findings of fact and conclusions based thereon together with the reasons therefore. Conclusions based on any provisions of [the code] shall contain a reference to the provision relied on and the reasons why the conclusion is deemed appropriate in light of the facts found.” Id. The Pennsylvania Supreme Court, commenting on this statutory requirement, stated that a zoning board is required to “issue an opinion which sets forth the essential findings of fact and . . . the [zoning board’s] reasoning to show that its action was reasoned rather than arbitrary.” Lando v. Springettsbury Township Zoning Board of Adjustment, 4 Pa. Commw. 312, 316-17, 286 A.2d 924, 927 (1972).

When a zoning board fails to issue a written decision which contains findings of fact and conclusions based on an application of those facts to the controlling law, the trial court, in its discretion, is empowered to remand a zoning appeal to the board for further proceedings. Id. at 318, 286 A.2d at 927.

In Lando, the Commonwealth court remanded a zoning appeal to the zoning board because the board, in its written decision, did not explain its rationale or cite to facts in support of its decision to deny an application for a variance. The court used language from another Commonwealth court decision, Mill-Bridge Realty Inc. v. Manchester Township Zoning Board of Adjustment, 4 Pa. Commw. 157, 286 A.2d 483 (1972), to explain its decision to remand the case and stated as follows:

“Unfortunately based on the present state of the record, we cannot properly exercise even our limited function of review, for while we have an ample record before us containing the complete testimony presented to the board as well as all the exhibits relating to the proposed (use), we are unable to determine on what basis the board made its decision. Were we to make an independent review of the record and to make a decision as to the propriety of the (board’s decision), we would be assuming the role assigned to the board.” Lando v. Springettsbury Township Zoning Board of Adjustment, 4 Pa. Commw. at 319, 286 A.2d at 926-27 (quoting Mill-Bridge Realty Inc. v. Manchester Township Zoning Board of Adjustment, 4 Pa. Commw. at 161, 286 A.2d at 485).

Here, the board issued a written decision which lacked the key findings necessary to justify its decision to grant the applicant two dimensional variances. The board, in the decision, makes the following conclusory statement: “[T]he ZHB (zoning hearing board) believes that Bartush articulated a hardship that would justify the grant of the dimensional variances relating to height and sign area ....” In support of this conclusion, the board states the following:

“The ZHB believes that the expansion of the intersection of Cedar Crest Boulevard and Fish Hatchery Road, and the growth of the neighborhood, particularly the growth of Lehigh Valley Hospital, require that motorists be afforded an opportunity to identify the Little Lehigh Medical Building as a destination, so as to facilitate visits to the site.”

This is the only statement in the board’s decision which provides any indication of the rationale in granting the dimensional variances.

Importantly, the board made no findings that Mr. Bar-tush satisfied the five elements needed to support the issuance of a variance. In Pennsylvania, a zoning board may grant a variance if five elements are met: (1) there are unique physical circumstances or conditions of a property, (2) that because of such physical circumstances or conditions, there can be no reasonable use of the property, (3) such unnecessary hardship has not been created by the applicant, (4) the variance, if granted, will not alter the essential nature of the neighborhood, and (5) that the variance will represent the least modification of the ordinance possible. 53 P.S. §10910.2(a).

In addressing the application for a dimensional variance, the board failed to conduct an analysis of the five elements required for a variance or cite to specific facts indicating that those elements were satisfied. It is impossible for the court to understand the board’s reasoning and conduct a meaningful review.

Because the board’s written decision precludes the court from making meaningful review, unfortunately, this case must be remanded to the board. See Domeisen v. Zoning Hearing Board of O ’Hara Township, 814 A.2d 851 (Pa. Commw. 2003). Within 30 days of the date of this opinion, the board shall issue an amended written decision which includes an analysis of the applicant’s variance request under 53 P.S. §10910.2(a). The board shall make findings on all of the elements for a variance. In making such findings, the board shall point to specific factual support in the record or state that the record contains no such evidence. In the event the board determines that another hearing is required to adequately address these issues, such hearing shall be held within 60 days of date of this opinion.


author: MEMORA, J.,

text:
    Williams v. Estate of Matto

      C.P. of Lackawanna County,
    no. 08 CV 4015.

      Alan Brian Jones, for plaintiffs.

      Robert A. Cecchini, for defendants.
    August 13, 2010—
   MEMORA, J.,

I. INTRODUCTION

This case was commenced by plaintiffs, Robert and Camella Williams, filing a quiet title complaint on June 16, 2008. The plaintiffs are seeking to quiet title to the real property located at 116 Dimmick Street, Borough of Throop, Lackawanna County, 18512 (property). The defendant, the estate of Irene M. Matto, filed an answer and new matter on July 18, 2008. The Commonwealth of Pennsylvania through the attorney general’s office, acting as parens patriae, filed an answer, new matter, and counterclaim on July 31, 2008. The Commonwealth’s newmatter/counterclaim contained 10 counts. These are: (1) failure to serve all parties; (2) undue influence; (3) fraud and duress; (4) breach of contract; (5) unjust enrichment; (6) laches; (7) deed may not be recorded due to the absence of two subscribing witnesses; (8) violation of the unfair trade practices and consumer protection law (UTPCPL); (9) bad faith; and (10) violation of the Eldercare Payment Restitution Act.

A non-jury trial was held before this court on May 6, 2010, to decide the issue of the ownership of the property. All parties have submitted proposed findings of fact and conclusions of law. We now consider the matter ripe for disposition. With that in mind, we submit the following.

II. FINDINGS OF FACT:

The findings of facts in this case as determined by the court are supported by the credible, probative competent and relevant evidence established during the hearing and the submissions of the parties, and accepted as true by the court.

(1) The plaintiffs are Robert D. Williams and Carmella M. Williams, husband and wife, who both reside at 112 Dimmick Street, Throop, Lackawanna County, Pennsylvania 18512.

(2) Irene M. Matto (decedent) owned a parcel of improved property located at 116 Dimmick Street, Borough of Throop, County of Lackawanna, Pennsylvania 18512.

(3) The decedent passed away on March 19, 2008. plaintiffs’ exhibit 6, Irene Matto’s death certificate.

(4) The plaintiffs and the decedent were neighbors.

(5) Sometime during December of 2005 the decedent fell and broke her hip, due to this fall she was hospitalized and had to under go rehabilitation and was unable to live alone. N.T. pp. 26-27.

(6) After being released from the hospital the decedent moved into the home of the plaintiffs. N.T. p. 10.

(7) The plaintiffs took care of the decedent during the time she lived with them by helping her shower, preparing her meals (N.T. p. 12), running to the store for her, and helping her run errands. N.T. p. 60.

(8) When the decedent initially moved in with the plaintiffs she was paying them $500 a month for the services they were providing her. N.T. p. 27.

(9) At sometime after December and before June the decedent started paying the plaintiffs $1,000 a month. N.T. p. 28.

(10) On June 23, 2006 the plaintiffs and the decedent entered into an agreement, whereby the plaintiffs would care for the decedent for the rest of her life the decedent would pay the plaintiffs $ 1,000 a month and the decedent would transfer a one-half undivided interest in the property. Defense exhibit 1.

(11) This agreement was drafted by Attorney James T. Mulligan Jr. N.T. p. 76.

(12) Attorney James T. Mulligan Jr. represented the decedent, Irene M. Matto, and only the decedent during these transactions. N.T. pp. 63, 86.

(13) At the same time the agreement was drafted a deed transferring a one-half undivided interest in the property, to the plaintiffs was also drafted. Plaintiffs exhibit 1.

(14) In consideration of the deed the plaintiffs were to pay the decedent $100. Plaintiffs exhibit 1.

(15) The agreement and the deed were dependent on one another. The plaintiffs were to carry out the agreement to completion and the defendant was to tender the deed. Plaintiffs exhibit 1, defendants exhibit 1, N.T. p. 90.

(16) The original deed was never delivered to plaintiffs by Attorney James T. Mulligan Jr. N.T. pp. 77, 87.

(17) The original deed was never recorded. N.T. p. 35.

(18) There is no record of the consideration of $100 ever being paid by the plaintiffs to the decedent. N.T. pp. 25-26, 43,91.

(19) In November of2006 the decedent was removed from the plaintiffs home by the area agency on aging. N.T. p. 108.

(20) The area agency on aging placed the decedent in Saint Mary’s Villa sometime in November of 2006 and she stayed there up until her death in March of 2008. N.T. p. 109.

(21) After the decedent was removed from the plaintiffs home they were no longer paid $1,000 a month and they no longer cared for the decedent. N.T. pp. 29-30, 68, 109.

Legal Issues:

The main legal issue in this case is who is the owner of the property. The plaintiffs claim ownership of the property through the unrecorded deed of June 23, 2006, transferring to them a one-half undivided interest in the property with rights of survivorship. The decedent’s estate claims the deed is void because it was never delivered to the plaintiffs, the consideration was never paid, and the agreement upon which the deed was contingent was breached and never completed. The Commonwealth has asserted several counterclaims, all of which are only become viable if the deed transferring the property to the plaintiffs is valid. The Commonwealth asserts the same defenses as the decedent’s estate to invalidate the deed. Therefore, the court will therefore first determine if the deed was delivered to the plaintiffs.

Legal Analysis:

Delivery of the deed is necessary to render it legally operative. Atiyeh v. Bear, 456 Pa. Super. 548, 560, 690 A.2d 1245, 1251 (1997). “Whether there has been delivery [of a deed] depends on the intention of the grantor as shown by his words and action and by circumstances surrounding the transaction. Conditional delivery or a delivery in escrow of a deed is not a delivery to the grantee.” DiMaio v. Musso, 762 A.2d 363, 365 (Pa. Super. 2000).

“Whether there has been a delivery of a deed is a question of fact to be determined from the evidence by the trial court.” Abraham v. Mihalich, 330 Pa. Super. 378, 380, 479 A.2d 601, 602 (1984). (citations omitted) “To effect a delivery, it is not essential that the grantor give the deed directly to the grantee. Delivery is effected if the grantor relinquishes control and gives the deed to a third party either with specific instructions to deliver it to the grantee or if the attendant facts and circumstances indicate that the grantor intended that delivery be made by the third party to the grantee.” Id. (citations omitted)

It is the conclusion of this court that delivery of the deed in question was never properly effected. It is undisputed that on June 23, 2006 the plaintiffs and the decedent went the offices of Attorney James Mulligan. On this date the parties signed an agreement for the plaintiffs to care for the decedent, and a deed pertaining to the property was signed. The plaintiff’s claim that after the decedent and themselves signed the deed in question, that attorney Mulligan then handed Mrs. Williams the deed. N.T. pp. 34, 55. The plaintiffs further testified that after Mrs. Williams was handed the deed she gave it back to Attorney Mulligan, as the plaintiff’s agent, to record the deed on their behalf. N.T. pp. 34,55.

However, we find the testimony of Attorney Mulligan on this matter both more compelling and more credible. He stated that after he circulated the deed to be signed by the parties he then placed the deed in his file. N.T. p. 87. Attorney Mulligan stated he had misgivings about the entire transaction. N.T. p. 77. He further testified that after the documents were signed he placed them all in his file and told the plaintiffs and the decedent he would be in touch. N.T. p. 80. He stated he acted this way because he was unsure of the decedent’s intentions at the time and wanted to speak with her outside of the presence of the plaintiffs. N.T. p. 80. Attorney Mulligan then testified that a few weeks after the signing he was able to get a hold of the decedent via telephone and she informed him to hold off on recording the deed. N.T. p. 83.

Attorney Mulligan also testified that he allowed the deed and services agreement to be signed while all parties were present at his office because he felt he could resolve his doubt about the transaction in private with his client ata later date. N.T. p. 85. Attorney Mulligan testified that he did not have the express authority of the decedent to withhold from recording the deed at the time the parties signed the deed. N.T. p. 78. However, it is clear from the testimony of Attorney Mulligan that during the entire process of having the deed signed he did not intend to transfer/tender the original deed to the plaintiffs. Because Attorney Mulligan was acting as the decedent’s agent at this time his actions are imputed upon the decedent, and therefore the decedent also did not intend to tender the deed at this time to the plaintiffs.

The Superior Court in the case DiMciio v. Mnsso, supra decided a deed was properly delivered when grantee left the deed with her attorney without giving the attorney instructions to withhold transfer of the deed until the time period agreed upon by the parties had expired. The Superior Court stated the grantors subjective belief is irrelevant when compared to her objective manifestations of assent to transfer the deed. 762 A.2d at 365.

In the present case the decedent made an objective manifestation by orally telling her attorney to hold off on recording the deed, thereby communicating to her attorney a desire to withhold delivering the deed to the plaintiffs. While this action occurred after the deed was signed it still sheds light on the intention of the parties.

What is more instructive is the language of the agreement which was signed on the same day as the deed. The agreement stated:

“ Whereas, Robert D. Williams and Carmella M. Williams, his wife, have been caring for Irene Matto at their home at 112 Dimmick Street, Throop, Lackawanna County, Pennsylvania, and the Williams intent [sic] to continue to care for Irene Matto for as long as she lives. (emphasis added)
“And now therefore, in consideration for the following mutual promises, the panties [sic] hereto agree as follows:
“(1) Irene Matto will execute a deed to the property at 116 Dimmick Street, Throop, Lackawanna County, Pennsylvania, in which she will convey an undivided one-half interest to herself, Irene Matto, and the other undivided one-half interest to Robert D. Williams and CarmellaM. Williams, his wife. The undivided one-half interests will be held as joint tenants with right of survivorship and not as tenants in common. Irene Matto will retain a life estate is [sic] said real estate at 116 Dimmick Street, Throop, Lackawanna County; Pennsylvania.” Defendant’s exhibit 1, agreement.

The agreement clearly states that in consideration of the plaintiffs taking care of the decedent for the rest of her life, the decedent would transfer a one-half undivided interest in the property. The deed in question was the deed which was to transfer the one-half undivided interests in the property. This language makes the deed and agreement conditional on each other, and illustrates that the decedent’s intentions at the time of signing the deed was not to deliver the deed at the signing of the deed.

Further, due to the fact that the plaintiffs were never given a copy of the original deed, and the original deed was never recorded indicates delivery of the deed was never legally effected. Attorney Mulligan’s testimony of his intentions at the time of the deed signing coupled with the prior described facts and circumstances all lead this court to the conclusion that the deed conveying a one-half undivided interest in the property to the plaintiffs was intentionally never delivered to the plaintiffs during the life of the decedent.

Conclusion:

Therefore, it is the conclusion of this court that the undelivered and unrecorded deed conveying a one-half undivided interest in 116 Dimmick Street to the plaintiffs was and is invalid and void ab initio. Since the plaintiff’s rely solely on the deed as the grounds for their quiet title action, said action must fail.

The Commonwealth’s counterclaims are based upon the plaintiffs’ being paid for services they did not render, specifically for receiving 116 Dimmick Street and not taking care of the decedent for the rest of her life. As this court has already deemed the deed purportedly transfer 116 Dimmick Street void, the Commonwealth’s counterclaims are moot.

An appropriate non-jury verdict will follow.

NON-JURY VERDICT PER Pa.R.C.P. 1038

And now, August 13, 2010, the following non-jury verdict is rendered pursuant to Pa.R.C.P. 1038:

(1) The plaintiffs’, Robert D. Williams and Carmella Williams, quiet title claim is dismissed and denied.

(2) The Commonwealth of Pennsylvania’s counterclaims are deemed moot.