author: TERESHKO, J.,

text:
    Walton v. Kindred Hospital Philadelphia.

      John Skrocki, for appellants.

      Christopher Culleton, for appelle.

      August 1, 2012
   TERESHKO, J.,

PROCEDURAL HISTORY

Defendants, Kindred Healthcare, Inc., Kindred Hospital East, LLC and Kindred Hospital Philadelphia appeal an order dated May 10, 2012, wherein this court overruled defendants’ preliminary objections seeking to enforce an alternative dispute resolution agreement.

FACTUAL BACKGROUND

Lakeysha Walton (hereinafter “plaintiff’) and her mother, Nancy Walton, reside together in Trenton, New Jersey. (Supplemental mem. of law in support of prelim, objection of Kindred defs. to enforce the ADR agreement 2). Philadelphia is organized under the laws of the Commonwealth of Pennsylvania and is located in Philadelphia, PA. (Compl., ¶3). Defendant Kindred Hospital East, LLC is organized under the laws of the Commonwealth of Pennsylvania with its principal place of business in Philadelphia, PA. (Compl., ¶4). Defendant Kindred Healthcare, Inc. is a Delaware corporation with its principal place of business in Louisville, KY. (Compl., ¶5). Defendants Kindred Hospital Philadelphia, Kindred Hospital East, LLC and Kindred Healthcare, Inc. are collectively referred to herein as “Kindred defendants.”

On January 13, 2010, plaintiff underwent a gastric bypass procedure at Robert Wood Johnson. (Compl., ¶10). Followingher discharge on January 18,2010,plaintiffbegan to experience abdominal pain and vomiting. (Compl., ¶11). Plaintiff returned to the Robert Wood Johnson emergency room on January 19, 2010 and was diagnosed with a bowel obstruction and gastric perforation. (Compl., ¶11). Plaintiff remained at Robert Wood Johnson from January 20,2010 to February 12,2010. (Compl., ¶12). During that time, plaintiff experienced loss of consciousness, renal failure and infection. (Compl., ¶12). As a result, plaintiff was intubated and became ventilator dependant. (Compl., ¶12). During her time at Robert Wood Johnson, plaintiff developed bedsores on her sacrum and buttocks. (Compl., ¶13).

On February 12, 2010, plaintiff was transferred to Kindred Hospital Philadelphia, where she remained until April 20,2010. (Compl., ¶14). Plaintiff was thirty-six (36) years old at the time. (Dep. Tr. of Lakeysha Walton P. 7, 14). Plaintiff was in a coma at the time of her admission to Kindred Hospital Philadelphia. (Pl.’s supplemental mem. of law in opp’n to prelim, objections of Kindred Defs. 3). During plaintiff’s time at Kindred Hospital Philadelphia, her bedsores worsened. (Compl., ¶15). Plaintiff contends that the bedsores worsened because of the harm that was caused at Robert Wood Johnson, and because of the negligent care provided at Kindred Hospital Philadelphia. Id.

On March 1, 2010, halway through plaintiff’s stay at Kindred Hospital Philadelphia, plaintiff’s mother, Nancy Walton, signed a voluntary alternative dispute resolution agreement (hereinafter “ADR agreement”) as plaintiff’s “legal representative.” See voluntary alternative dispute resolution agreement P. 4. In addition, Nancy Walton signed the following forms on plaintiff’s behalf: a HIPPA disclosure form; a medicare rights form; a receipt of Valuables form; and consent forms for a bronchoscopy, a blood transfusion, and a transfer to Albert Einstein medical center. (Supplemental mem. of law in supp. of prelim. objection of Kindred defs. to enforce ADR agreement 3).

Despite the fact that plaintiff’s mother signed the aforementioned documents presented to her by representatives of Kindred, plaintiff never gave her mother power of attorney and never authorized her mother to make decisions on plaintiff’s behalf. (Dep. Tr. of Lakeysha Walton P. 15, L. 6-10; Dep. Tr. of Nancy Walton P. 18, L. 23). Additionally, Nancy Walton has never been granted authority by a court to act on her daughter’s behalf. (Dep. Tr. of Nancy Walton P. 41, L. 12). Nancy Walton does not recall signing the ADR agreement nor does she recall anyone from Kindred Hospital Philadelphia explaining the ADR Agreement to her or asking whether she had power of attorney. Id. at P. 15, L. 14; P. 21, L. 5; P. 39, L. 17. Finally, Nancy Walton was under the impression that she was merely signing documents that gave Kindred Hospital Philadelphia permission to treat plaintiff and contends that if she had been advised otherwise, she would have refused to sign any documents waiving plaintiff’s right to a jury trial. Id. at P.39, L. 11-21.

During plaintiff’s stay at Kindred Hospital Philadelphia, she had no understanding of who was handling her admission paperwork. Id. at P. 10, L. 7; Dep. Tr. of Nancy Walton P. 34, L. 3. Nancy Walton never mentioned anything to plaintiff about signing paperwork at Kindred Hospital Philadelphia. Id. at P. 12-13. Plaintiff never read the ADR agreement nor was she made aware of the significance of the agreement. Id. at P. 11-12. In fact, plaintiff was not aware that the agreement included a waiver of her right to a jury trial until two years after plaintiff was discharged. Id. at P. 12, L. 1. Moreover, plaintiff was never asked to sign an ADR agreement during her stay at Kindred Hospital Philadelphia. Id. at P. 15, L. 3.

On January 12, 2012, plaintiff commenced this negligence action by filing a complaint in the court of common pleas of Philadelphia County. See docket. Robert Wood Johnson filed preliminary objections to plaintiff’s complaint on February 13, 2012. Id. Plaintiff filed an answer on March 2,2012, and Robert Wood Johnson filed a reply on March 5,2012. Id. On March 20,2012, the court sustained Robert Wood Johnson’s preliminary objections as to jurisdiction and dismissed this action as to Robert Wood Johnson, with prejudice. Id.

On February 10, 2012, Kindred defendants filed preliminary objections to plaintiff’s complaint as a motion to compel arbitration/mediation. Id. Plaintiff filed an answer on February 21, 2012. Id. On March 21, 2012, the court ordered the parties to conduct discovery by deposition on the issue of whether plaintiff’s mother had the necessary authority to execute the referenced ADR agreement. Id. On April 30, 2012, plaintiff filed a memorandum in opposition of Kindred defendants’ preliminary objections. Id. Kindred defendants filed a brief in support of preliminary objections on May 1,2012. Id. On May 10, 2012, after review of Kindred defendants’ preliminary objections to plaintiff’s complaint, plaintiff’s response thereto and the parties’ supplemental memoranda, the court overruled Kindred defendants’ preliminary objections and ordered Kindred defendants to file an answer to plaintiff’s complaint within twenty (20) days of the date of the order. Id. Appellants filed an answer with new matter in opposition to plaintiff’s complaint on May 25, 2012. Id. On May 23, 2012, Kindred defendants (hereinafter, “appellants”) timely filed an appeal from the May 10,2012 order. Id. Appellants filed their rule 1925(b) statement of errors complained of on appeal on June 29, 2012. Id.

The issue for appeal is whether the court erred in refusing to enforce the ADR agreement because the plaintiff’s mother did not have the authority to execute the agreement.

LEGAL ANALYSIS

“A written agreement to subject any existing controversy to arbitration, or a provision in a written agreement to submit to arbitration is valid, enforceable and irrevocable save upon such grounds as exist at law or in equity relating to validity, enforceability or revocation.” 42 Pa.C.S. § 7303. Courts apply a two-part test to determine whether arbitration is required. Midomo Co., Inc. v. Presbyterian Hous. Dev. Co., 739 A.2d 180, 186 (Pa.Super. 1999). First, the court must determine whether a valid agreement to arbitrate exists between the parties. Id. Second, if such agreement does exist, then the court must determine whether the dispute involved is within the scope of the agreement. Id. In the instant case, the scope of the agreement is not at issue.

With respect to validity, the agreement is only binding upon the plaintiff if her mother had authority to act on her behalf. Carr v. Immaculate Mary Nursing Home, 15 Pa. D. & C. 5th 415 (Phila. Cty. 2010). Plaintiff never gave her mother power of attorney and never authorized her mother to make decisions on her behalf. (Dep. Tr. Of Lakeysha Walton P. 15, L. 6-10). Therefore, Nancy Walton could only act on plaintiff’s behalf if an agency relationship existed between them. Id.

The burden of establishing an agency relationship rests with the party asserting it. Basile v. H&R Block, Inc., 563 Pa. 359, 367, 761 A.2d 1115, 11120 (2000). An agency relationship may be created in one of four ways: express authority, implied authority, apparent authority and authority by estoppel. Bolus v. United Penn Bank, 363 Pa. Super. 247, 259-60, 525 A.2d 1215, 1221 (Pa. Super. 1987). Express authority exists when a principal expressly grants authority directly to an agent as to certain matters. Id. Implied authority binds a principal to those acts of the agent that are “proper, usual and necessary” in the exercise of the agent’s express authority. Passarelli v. Shields, 191 Pa. Super. 194, 156 A.2d 343 (1959). Apparent authority arises where a principal, “by words or conduct, causes people with whom the alleged agent deals to believe that the principal has granted the agent authority” that the agent purports to exercise. Turner Hydraulics, Inc. v. Susquehanna Constr. Corp., 414 Pa. Super. 130, 135, 606 A.2d 532, 535 (1992). Such authority emanates from the principal’s action and not that of the agent. Jennings v. Pittsburg Mercantile Co., 414 Pa. 641, 645, 202 A.2d 51, 54 (1964). Finally, authority by estoppel occurs when a principal fails to supervise the affairs of his agent thus allowing the agent to exercise authority not granted to him. Apex Financial Corp. v. Decker, 245 Pa. Super. 439, 444-45, 369 A.2d 483, 486 (1976). If the principal fails to take reasonable measures to protect himself and third parties dealing with an agent from harm caused by the agent, then the principal may be estopped from denying the authority of the agent. Reifsnyder v. Dougherty, 301 Pa. 328, 152 A. 98 95 (1930).

The facts in Carr are similar to those presented here. In Carr, the honorable Sandra Mazer Moss overruled the defendants’ preliminary objections seeking to compel arbitrationbecausethe defendants didnotprovide sufficient evidence that the deceased’s wife had authority to bind her husband to arbitration. 15 Pa. D. & C.5th 415 (Phila. Cty. 2010). Upon Carr’s admission to Immaculate Mary Nursing Home, Carr’s wife executed a nursing facility admission agreement containing a binding, mandatory arbitration clause. Id. at 417. Carr’s wife did not have power of attorney and had not been appointed legal guardian. Id. at 418. Several months later, Carr exited his room on the “secure dementia floor,” gained access to the laundry chute, and fell three stories into the basement. Id. Carr sustained serious injuries and ultimately died. Id. at 419. The executor of Carr’s estate subsequently filed suit for negligence and wrongful death. Id. at 417.

The defendants in Carr filed preliminary objections to compel arbitration. Id. at 419. The plaintiff responded that the arbitration clause was invalid because Carr’s wife did not have authority to waive his right to a jury trial. Id. The defendants argued that the agreement was valid because Carr’s wife had apparent authority to act on his behalf. Id. Judge Moss overruled the defendants’ preliminary objections, finding that Carr’s wife did not have authority to bind Carr to arbitration. Id. at 422. First, the defendants failed to produce evidence of a writing expressly granting Carr’s wife actual authority. Id. at 421. Second, there was no apparent authority because defendants offered no evidence of Carr’s conduct when the agreement was executed. Id. Defendants offered no evidence indicating that Carr was aware of the arbitration clause, authorized his wife to sign the agreement, or otherwise agreed to arbitrate any disputes. Id. Moreover, defendants were aware of Carr’s diminished mental capacity, having admitted him to a program specifically designed for dementia patients. Id. Finally, there was no authority by estoppel because defendants offered no evidence that Carr was negligent. Id.

Here, appellants have similarly failed to satisfy the burden of establishing an agency relationship. First, the appellants have offered no evidence of a writing expressly granting Nancy Walton actual authority. Second, appellants have not produced any evidence demonstrating that plaintiff was aware of the ADR clause, authorized her mother to sign the agreement, or otherwise agreed to arbitrate any disputes. Moreover, appellants were aware that plaintiff was in a coma upon her admission to Kindred Hospital Philadelphia and have failed to offer any evidence of plaintiff’s conduct at the time the ADR agreement was executed. On the contrary, the deposition testimony of both plaintiff and her mother clearly and unequivocally indicates that plaintiff was not aware of the arbitration clause, did not authorize her mother to sign the ADR agreement, or otherwise agree to arbitrate any disputes. As such, no agency relationship existed between plaintiff and her mother. Therefore, plaintiff’s mother did not have authority to sign the ADR agreement.

Moreover, this court’s order dated May 10, 2012 is not properly subject to appeal because the order fails to satisfy the requirements of the Pennsylvania rules of appellate procedure. Pennsylvania permits appellate review of four types of orders: (1) final orders, (2) interlocutory orders from which an appeal exists as of right; (3) interlocutory orders, which may be appealed by permission; and (4) collateral orders. Mother’s Restaurant Inc. v. Krystkiewicz, 861 A.2d 327 (Pa. Super. 2004). The current case does not fall within the requirements of any of these categories and therefore, this appeal should be quashed.

According to Pennsylvania Rule of Appellate Procedure 341, final orders are those which either (1) dispose of all claims and all parties, (2) are explicitly defined as final orders by statute, or (3) are certified as final orders by the trial court or other reviewing body. Pa.R.A.P. 341. Here, the court’s order does not fall into any of these categories. First, the order does not eliminate any of the claims or any of the parties. Second, no statute defines the order at issue in this case as a final order. Second, rule 341 enunciates a “partial list” of orders that have been interpreted by the courts as appealable as final orders under the old Rule 341 but are no longer appealable under the amended version of rule 341. See Id. Among those order listed is “an order dismissing a counterclaim but leaving pending the complaint which initiated the action.” Id. The present order presents a similar situation; this court’s order dismissed appellants’ preliminary objections, but left the initial negligence action pending. Cf. Continental Bank v. Andrew Bldg. Co., 436 Pa. Super. 559, 648 A.2d 551 (holding that order striking appellant’s counterclaim was not appealable as a final order because initial mortgage foreclosure action remained pending). Finally, this court did not certify the order as final. As such, this order is not appealable as a final order.

Pennsylvania rule of appellate procedure rule 311 enumerates interlocutory orders to which a right of appeal attaches. See Pa.R.A.P. 311. An order overruling preliminary objections in a negligence case, however, does not constitute a basis for an interlocutory appeal as of right within this rule. See Id. As such, the order is not subject to appeal under this provision.

Permission to appeal from an interlocutory order may be granted pursuant to section 702(b) of the judicial code. Continental Bank, 436 Pa. Super. at 568, 648 A.2d at 555. Section 702(b) requires the order to contain the trial court’s certification that “such order involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter...” 42 Pa.C.S.A. § 702(b); Pa.R.A.P. 312, 1311. Moreover, Pennsylvania Rule of Civil Procedure 1311(b) requires the appellant to file a petition for permission to appeal with the appellate court within thirty (30) days after entry of such order in the trial court. See Pa.R.A.P. 1311(b). Here, the court’s order does not contain the requisite language pursuant to section 702(b), nor did Kindred defendants file a petition for permission to appeal. Therefore, the order is not appealable under this provision.

Finally, Pennsylvania rule of appellate procedure 313 specifically allows for appeals from collateral orders as of right, (1) “where the order is separable from and collateral to the main cause of action,” (2) “where the right involved is too important to be denied review,” and (3) “the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.” Pa.R.A.P. 313(b). Rule 313 should be interpreted narrowly, and each prong must be undoubtedly fulfilled for an order to be considered collateral. Melvin v. Doe, 575 Pa. 264, 272, 836 A.2d 42, 46-47 (2003). Any order asserted to be collateral must satisfy all three prongs to be subject to appellate jurisdiction. Rae, 602 Pa. at 72, 977 A.2d at 1125.

Here, appellants only satisfy the first rule 313 requirement. For the first prong of analysis under Rule 313(b), the court must determine whether the issue(s) raised in the order “are separable from the central issue” of the ongoing litigation. In re J.S., 980 A.2d 117, 121 (Pa. Super. Ct. 2009). Here, the court’s order is separable from, and collateral to, plaintiff’s main cause of action because the enforceability of the ADR agreement does not determine or resolve any of the ultimate issues in this case, i.e., whether appellants engaged in negligent conduct.

Nonetheless, appellate review is impermissible here because the second prong of Rule 313(b) is not satisfied. With regard to the second prong, it is not enough that the issue is important to the parties. “Rather it must involve rights deeply rooted in public policy going beyond the particular litigation at hand.” Geniviva v. Frisk, 555 Pa. 589, 725 A.2d 1209, 1214 (1999). Moreover, “an issue is important if the interests that would potentially go unprotected without immediate appellate review of that issue are significant relative to the efficiency interests sought to be advanced by the final judgment rule.” Id. at 1213, quoting In re Ford Motor Company, 110 F.3d 954, 959 (3d Cir. 1997). Here, the court’s order invalidating the ADR agreement does not involve a right “too important to be denied review” because the parties’ rights and obligations under the ADR agreement only impact the parties to this litigation. See Pennsy Supply, Inc. v. Mumma, 2007 Pa. Super. 77, 921 A.2d 1184 (2007) (holding that an order granting defendants’ preliminary objections and instructing the parties to proceed to arbitration to determine their rights pursuant to a lease agreement did not involve a right “too important to be denied review” because the parties’ rights and obligations under the contract only impact[ed] the parties to [the] litigation”). Moreover, defendants contend that arbitration is “the preferred process for dispute resolution in the Commonwealth of Pennsylvania” due to the congestion of court dockets throughout Pennsylvania. (Prelim, objections of Defs. to Pl.’s Compl. 5). While arbitration may promote efficiency at the trial level, the increased costs associated with appellate litigation may negate the benefits associated with arbitration. Cf. Geniviva, 555 Pa. at 598, 725 A.2d at 1214 (1999) (holding that any efficiencies achieved in allowing appeals as of right from orders denying enforcement or approval of settlement agreements would be negated by increased appellate litigation). As such, the right involved in the present case is not too important to be denied review.

Finally, the order at issue is improper for appellate review because the third prong is not satisfied. To satisfy the third prong of rule 313, the issue sought to be appealed must actually be lost if trial review is postponed. Keefer v. Keefer, 741 A.2d 808 (Pa. Super. Ct. 1999). “Orders that make a trial inconvenient for one party or introduce potential inefficiencies, including post-trial appeals of orders and subsequent retrials, are not considered as irreparably lost.” Id. at 813. Here, the court’s order effectively precludes appellants from satisfying this requirement. By requiring the parties to continue trial litigation, the court’s order ensures that appellants’ claim is not “irreparably lost.” As such, this court’s order dated May 10, 2012 is not subject to appellate review. This appeal does not satisfy the requirements of the Pennsylvania rules of appellate procedure and should therefore be quashed.

CONCLUSION

For the foregoing reasons, this court respectfully requests that its decision to overrule appellants Kindred Healthcare, Inc., Kindred Hospital East, LLC and Kindred Hospital Philadelphia’s preliminary objections seeking to enforce the alternative dispute resolution agreement be affirmed.

      . Carr was admitted with symptoms of dementia including disorientation, confusion, decreased awareness, ambulatory deficits, impaired vision, and incontinence.

      . An interlocutory appeal can “threaten [trial proceedings] with delay, adding costs and diminishing coherence.” An interlocutory appeal “also risks additional, and unnecessary, appellate court work either when it presents appellate courts with less developed records or when it brings them appeal that, had the trial simply proceeded, would have turned out to be unnecessary.” Johnson v. Jones, 515 U.S. 304, 308, 115 S.Ct. 2151, 2154 (1995).


source: Caselaw Access Project

author: GLAZER, J.,

license: Public Domain

text:
    Roland v. Roland.

      Sammetria Goodson, for plaintiff.

      Eric Assini, for defendant.
    July 20, 2012
   GLAZER, J.,

Plaintiff’s third motion for partial summary judgment requires this court to determine whether real property located at 1700-12 N. Front Street, in Philadelphia, Pennsylvania, was owned by corporate defendant Roland Investments, Inc. at the time said property was sold to a third party. For the reasons below, this court finds that the property was owned by the corporate defendant above.

Background

Plaintiff, Geraldine Roland (“Geraldine Roland” or “plaintiff,”) is the widow of decedent Francis Roland (“Francis Roland” or “decedent,”) and the personal representative of his estate. Individual defendant William Roland (“William Roland” or “defendant,”) is the surviving brother of decedent. Corporate defendant Roland Investments, Inc. (“Roland Investment,”) is a corporation based in Philadelphia, Pennsylvania. Roland Investments is successor-in-interest of Reliable Wagon and Automobile Body Builders, Inc. (“Reliable Wagon,”) a Philadelphia, Pennsylvania corporation. Roland Investment is 100% owner of real property located at 1605-23 (the “1600 property,”) and was owner of another property located at 1700-12 N. Front Street (the “1700 property,”) in Philadelphia, Pennsylvania. Until 1995, Roland Investments was entirely owned by Rose Roland, mother of decedent Francis Roland and his surviving brother William Roland. In 1995, Rose Roland sold 100% of her ownership in Roland Investments to her sons, Francis Roland and William Roland, who became 50-50 owners thereof pursuant to a “Stock purchase agreement.” A pertinent section of the Stock purchase agreements states:

The company [Roland Investments] owns outright, and has good and marketable title to, all of its properties free and clear of all liens, pledges, mortgages, security interests, conditional sales contracts or other encumbrances of any nature whatsoever, except for the lien of current real estate taxes not yet due and payable.

After Francis Roland died, his estate sought to liquidate the assets ofRolandlnvestments. However, WilliamRoland denied to the estate any access to the properties, and froze the estate out of all the affairs of Roland Investments. On 17 November 2010, the estate of Francis Roland filed a complaint (the ^“original complaint, ) againstWilliamRoland individually, and against corporate defendant Roland Investments. Count I of the original complaint sought the appointment of a receiver as to Roland Investments, and count II sought liquidation of the 1600 property. At the time the original complaint was filed, the estate of Francis Roland was unaware that Roland Investments also owned the 1700 property. Consequently, the original complaint did not identify the 1700 property as an asset of Roland Investments, and did not seek liquidation thereof.

On June 7, 2011, while the instant litigation was pending, Roland Investments sold the 1700 property to an individual named James Maybeny. The property was sold without the knowledge of the estate. The deed transferring the property from Roland Investments to James Mayberry was signed by William Roland as president of Roland Investments. Roland Investments received consideration in the amount of $45,000 from the sale. In the course of discovery, the estate of Francis Roland became aware that Roland Investments had been owner of the 1700 property, and that the property had been sold some time after commencement of the instant action.

On July 1, 2011, the estate of Francis Roland filed a motion for summary judgment no. 1. Through this motion, the estate sought an order declaring that the 1600 and 1700 properties were owned by Roland Investments. On 22 August 2011, this court granted the motion in part, finding that Roland Investment owned the 1600 property, and William Roland, and the estate of Francis Roland, were 50-50 owners of Roland Investments. This court declined to rule on the 1700 property because the original complaint had not asserted any claims regarding that property.

On September 7,2011, the estate of Francis Roland filed a motion for partial summary judgmentNo. 2. Through this motion, the estate sought an order declaring that Roland Investment was owner of the 1700 property at the time William Roland sold it to James Mayberry. Subsequently, on October 21, 2011, the estate of Francis Roland filed a motion for leave of court to amend complaint. Through this motion, the estate recognized that its original complaint had not asserted any claims as to the 1700 property, and sought leave of court to rectify the error. On December 21, 2011, this court granted the motion for leave to amend complaint, and declared moot the estate’s motion for partial summary judgment no. 2.

On December 22, 2011, plaintiff filed its amended complaint. The amended complaint asserts inter alia that the estate of Francis Roland is the owner of 50% of the value of the 1700 property. On January 10,2012, William Roland filed an answer with new matter and counterclaim to the amended complaint of plaintiff. The new matter asserted defenses based on impossibility of performance, statute of limitations and laches. The counterclaim asserted that the stock purchase agreement, which contemplated a 50-50 ownership interest in Roland Investment between Francis Roland and William Roland, was later superseded by a substantially different arrangement pursuant to an oral agreement between the two brothers.

On January 17, 2011, the estate of Francis Roland filed the instant motion for partial summary judgment no. 3. Through this motion, the estate seeks an order declaring that the 1700 property was owned by Roland Investments at the time it was sold to James Mayberry. The motion also asks this court to rule that 1/2 of the property’s value “is now payable to [the estate of Francis Roland] by the individual defendant,” William Roland. The parties have fully briefed the motion which is now ripe for a decision.

Discussion
The [Pennsylvania Rules of Civil Procedure] instruct in relevant part that the court shall enter judgment whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense that could be established by additional discovery. Under the rules, a motion for summary judgment is based on an evidentiary record that entitles the moving party to a judgment as a matter of law. For purposes of summary judgment, the record includes any pleadings, interrogatory answers, depositions, admissions, and affidavits.... In considering the merits of a motion for summary judgment, a court views the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Finally, the court may grant summary judgment only where the right to such a judgment is clear and free from doubt.

In this case, the evidence of record shows unequivocally that Roland Investments, formerly doing business as Reliable Wagon, sold the property located at 1700-12 N. Front Street, in Philadelphia, Pennsylvania. The deed shows that Roland Investments received consideration in the amount of $45,000 from the sale of the property, and that William Roland, in his capacity as president of Roland Investments, executed the deed of sale. In addition, the stock purchase agreement, executed in 1995 by Rose Roland, Francis Roland and William Roland, shows that Francis Roland and William Roland each acquired a 50% share in Roland Investments from Rose Roland. When Francis Roland died, his ownership interest in Roland Investment passed to his estate. It follows that the estate of Francis Roland, and William Roland, were each entitled to 1/2 of the 1700 property.

Opposing the motion for partial summary judgment, William Roland asserts that he and Francis Roland entered into an oral contract which superseded the ownership terms contained in the prior stock purchase agreement. This argument fails under the statute of frauds which “mandates that contracts for the sale of real property be in writing.” The Pennsylvania Superior Court has articulated the reasons why the statute of frauds requires real estate transactions to be in writing. The Superior Court explained that “[t]he purpose of the statute [of frauds] is to prevent the possibility of enforcing unfounded, fraudulent claims, by requiring that contracts pertaining to interests in real estate be supported by written evidence signed by the party creating the interest.” Here, William Roland asserts that he and decedent Francis Roland entered into an oral contract to split the real property of Roland Investments in a way that deviated from the 50-50 allocation contemplated by the stock purchase agreement. However, William Roland may not challenge the ownership terms in the stock purchase agreement by alleging an oral contract because such a contract violates the requirements of the statute of frauds. As William Roland cannot prove the existence of an oral contract, the motion for partial summary judgment of the estate of Francis Roland is granted-in-part and denied-in-part. The portion of the motion seeking to declare that the 1700 property was owned by Roland Investments at the time the property was sold to James Mayberry is granted. The portion of the motion asking this court to rule that 1/2 of the fair value of the 1700 property “is now payable to plaintiff by the individual defendant” is denied. This portion of the motion is denied because plaintiff effectively asks this court to pierce the corporate veil of Roland Investments, and hold individual defendant William Roland accountable for the actions of the corporate defendant. To pierce the corporate veil of Roland Investments and recover from individual defendant William Roland, if at all, the estate of Francis Roland must show that William Roland undercapitalized Roland Investments, failed to adhere to the corporate formalities thereof, substantially inter-mingled his affairs with those of the corporation, or used Roland Investments to perpetrate a fraud.

The counterclaim of defendant William Roland is dismissed.

The court shall simultaneously issue an order consistent with this memorandum opinion.

ORDER

And now, July 20, 2012, upon consideration of the motion for partial summary judgment no. 3 of plaintiff, the estate of Francis Roland, the response in opposition of defendants, William Roland and Roland Investments, Inc., the respective memoranda of law, and plaintiff’s supplemental brief, it is ordered as follows:

I. The motion for partial summary judgment is granted-in-part. The property located at 1700-12 N. Front Street, in Philadelphia, Pennsylvania, was an asset owned by defendant Roland Investments, Inc. until 7 June 2011, the day the asset was sold to a third party. It is further ordered that Roland Investments, Inc. is 50% owned by plaintiff, the estate of Francis Roland, and 50% owned by individual defendant, William Roland.

II. The motion for partial summary judgment is denied as to the portion of the motion asking this court to rule that individual defendant William Roland is personally obligated to pay to the estate of Francis Roland 1/2 of the “fair value” of the property located at 1700-12 N. Front Street, in Philadelphia, Pennsylvania, for the reasons stated in the attached memorandum opinion.

      . Indenture between the Philadelphia authority for Industrial development and reliable wagon, exhibit A to plaintiff’s amended complaint; indenture between Roland Investment f/k/a/ Reliable Wagon as grantor, and James Mayberry, grantee, exhibit A to plaintiff’s motion for partial summary judgment (no.3).

      . Stock purchase agreement, § 4.5, attached as exhibit B to motion for partial summary judgment (no.3) of plaintiff. (Emphasis supplied).

      . Indenture between reliable wagon & Automobile Body Builders Inc. [Roland Investments,] and James Mayberry, exhibit A to plaintiff’s motion for partial summary judgment (no. 3).

      . Philadelphia real estate transfer tax certification, exhibit A to plaintiffs motion for partial summary judgment.

      . Suggested order attached to plaintiff’s motion for partial summary judgment, control no. 11090820.

      . Motion for leave of court to amend complaint, control no. 11102294.

      . Amended complaint, ¶¶ 10, 19.

      . Answer with new matter and counterclaim to plaintiff’s amended complaint, ¶¶ 45-46, 50.

      . Suggested order attached plaintiffs motion for partial summary judgment no. 3.

      . Scalice v. Pa. Emples. Benefit Trust Fund, 584 Pa. 161, 171-172, 883 A.2d 429, 435-436 (2005).

      . Deed attached as exhibit A to plaintiff’s motion for partial summary j udgment.

      . Stock purchase agreement, attached as exhibit B to plaintiff’s motion for partial summary judgment.

      . Rosen v. Rittenhouse Towers, 334 Pa. Super. 124, 130-131 (Pa. Super. Ct. 1984).

      . Id.

      . Lumax Indus, v. Aultman, 543 Pa. 38, 42; 669 A.2d 893, 895 (Pa. 1995). Any attempt to pierce the corporate veil must comply with Pa. R.C.P. 1033 which states: “A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action ... or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense....”

      . Suggested order attached to plaintiff’s motion for partial summary judgment.


author: MOSS, J.,

text:
    Robins v. Robins

      Pro Se, for plaintiff.

      Jeffrey P Bates, for defendant.
    June 27, 2012
   MOSS, J.,

The issue is whether we properly granted non-party Philadelphia corporation for the aging’s (“PCA”) Motion for protective order and to quash subpoena (“PCA Motion”) in plaintiff’s absence. For the following reasons, we properly granted. Furthermore, the instant appeal should be quashed as interlocutory and not immediately appealable pursuant to Pa. R.A.P. 313(2012).

Facts and Procedural History

This is a January, 2011 non jury matter involving alleged, inter alia, wrongful use of civil process and illegal tenant eviction. See generally amended complaint, 05/16/12. Plaintiff Jonathan Robins is a pro se litigant currently incarcerated at a correctional facility on 1120 Pike Street in Huntington, Pennsylvania. See docket report at 1; see also see trial Tr. 3:16-24, April 5, 2012. On or around March 6,2012, PCA received a subpoena to produce certain records dated March 1,2012. PCAmotion, 03/22/12 ¶ 2, Ex. A. PCA is a non-profit Pennsylvania corporation “functioning as the area agency on aging within the meaning of the older American’s act.” Id. ¶ 1. Plaintiff requested documentation showing he facilitated a PCA representative’s tri- weekly visits to assist his uncle Malachi Robins with bathing. See answer to PCA motion, 03/22/12; see also amended complaint pp. 1-2. Plaintiff averred he was his uncle’s legal guardian and entitled to said record. Answer to PCA motion.

A notice of intent to serve (“notice of intent”) dated 12/05/11 along with a certificate prerequisite to service of said subpoena (“certificate”) dated 02/11/12 was formally filed February 15, 2012 without the subpoena attached. Docket 02/15/12. The notice of intent does not indicate a party, although Robins indicates on the certificate he mailed everything to “defendant.” Id.

Defense counsel requested plaintiff withdraw the subpoena on March 12, 2012, See PCA motion attorney certification of good faith. Plaintiff declined in a letter drafted on March 18, 2012 and electronically filed April 5, 2012, Robins response, 04/05/12. On March 22, 2012, PCA moved for a protective order and to quash citing confidentiality pursuant to the older American’s Act and related regulations. See generally PCA motion, 03/22/12. The hearing was scheduled Thursday April 5, 2012. Electronic confirmation was sent to the moving party requiring it to serve all parties, pursuant to Pa. R. C. P. No. 440. See attached notice exhibit 1.

The PCA motion was granted as uncontested on April 5, 2012 after Robins failed to appear either live or by video teleconference. Order, 04/05/12. Robins’ request to appear via video teleconference was granted for a previous hearing April 3,2012. Hon. Leon Tucker order, 03/29/12. PCA’s attorney asserted Robins failed to provide requisite guardianship proof. Id. 5:10-23. A copy of our April 5, 2012 order (“04/05/12 order”) granting PCA’s motion was forwarded to plaintiff at his docketed address. Robins filed the instant appeal April 30, 2012, alleging he never received same. See notice of appeal, 04/30/12. He also alleged in an enclosed letter of never being served PCA’s motion. Id.

Discussion

The instant appeal should be quashed as interlocutory. Pa. R.A.P. No. 313 (2012). Alternatively, our 04/05/12 order was proper on the merits.

Plaintiff knew about the April 5,2012 hearing and had the opportunity to participate via video teleconference. Legal papers other than service of process shall be served by the filing party by mail upon all other parties with proof attached. PA Philadelphia LR 440 (a) (2011). When a person served fails to appear for a motion, “proof of service of same must be filed in the case before the court will act thereon.” Id. (c). Here, PCA filed its motion and was required to notify Robins of same. We made this clear in an email sent to PCA after its filing. See attached notice exhibit I. Robins’ filed his original letter response as an answer on April 5, 2012. While Robins’ letter states he was never served the motion, the filed answer says otherwise. This indicates he knew the hearing was taking place. Therefore, notice is not an issue.

Furthermore, plaintiff knew he could appear via video teleconference since he had successfully obtained same for a hearing held two (2) days prior to the instant one. Moreover, judge Tucker’s March29,2012 order compelling the prison to provide Robins video teleconferencing facilities proves there was no excuse for failing to do so here.

Next, our 04/05/12 order was interlocutory. Discovery orders are generally interlocutory and not appealable until judgment. West v. Andersen, 626 A.2d 606, 608 (Pa. Super. 1993). An appeal as of right may be taken from a lower court’s collateral order. Pa. R.A.P. 313(a) (2012). “A collateral order is an order [1)] separable from and collateral to the main cause of action where [2)] the right involved is too important to be denied review and [3)] the question presented is such that if review is postponed until final judgment in the case, the claim is irreparably lost.” Id. (b). An issue qualifies as collateral when it involves “rights deeply rooted in public policy beyond the particular litigation at hand.” Ben v. Schwartz, 556 Pa. 475, 484, 729 A.2d 547, 552 (1999) (internal citations omitted).

Discovery orders are deemed collateral when they involve allegedly privileged documents. See, e.g., In re Condemnation of 16.2626 Acre Area, 981 A.2d 391, 396 (Pa. Cmwlth. Ct. 2009) (holding postponing of a privilege review would be pointless if allegedly privileged documents were produced in discovery); see also Gocial v. Independence Blue Cross, 827 A.2d 1216 (Pa. Super. Ct. 2003) (holding the collateral order doctrine permitted interlocutory review where a party claimed work product and attorney-client privilege protections). With privilege issues, rights are too important and may be irreparably lost if not reviewed immediately.

Here, plaintiff asserts no privilege issues. On the contrary, Robins wants to obtain PCA’s confidential documents covering his involvement with its agent’s visits to his ailing uncle. This matter may be postponed without being irreparably lost since privilege is not destroyed by our 04/05/12 order. Moreover, this matter does not implicate any deeply rooted public policy issues. As such, our order is interlocutory and plaintiff’s appeal should be quashed.

Alternatively, our 04/05/12 order was meritorious and we did not abuse our discretion. Since plaintiff failed to appear, PCA’s facts and legal arguments were presented uncontested. A motion to quash a subpoena may be filed by a served entity and the court may hold a hearing and “make an order to protect [said entity] from unreasonable annoyance, embarrassment, oppression, burden or expense.” Pa. R. C. P. 234.4(b) (2012). A protective order may be issued to prohibit certain discovery production. See id. 4012(a)(1).

First PCA averred Robin’s subpoena was procedurally defective. A certificate of service must be filed indicating service on the subpoenaed party, notice of intent to serve and an identical subpoena attached. Pa. R.C. P. No. 4009.22 (a) (2012). The notice of intent must be delivered at least twenty days before the subpoena is sought to be served. Id. Here, the notice of intent and certificate are dated 12/05/12 and 02/11/12, respectively, and filed on February 15, 2012. There is no proof said notice and certificate were mailed to PCA other than Robins’ self-serving statement on same. No certified mail receipt is attached. No subpoena is attached as required. The certificate is addressed to “defendant,” but PCA is a non-party in this matter. PCA formally acknowledged receiving the subpoena on or around March 6,2012 within its motion but Robins’ service of process was defective. This alone justified quashing the subpoena.

A protective order is also justified on the uncontested facts. The Commonwealth is required to make sure agencies like PCA and its subcontractors keep confidential information about the elderly who have received services. See 35 P.S. § 10225.306 (2012); see also 45 C.F.R. § 1321.51(a) (2012). A limited exception allows disclosure to the person’s legal guardian. See 35 P.S. § 10225.705 (b)(6). We fully considered Robins’ argument that he was a legal guardian and entitled to certain records. See trial Tr. 7:3-7, April 5, 2012. However, PCA argued Robins failed to produce a single document proving he was his uncle’s legal guardian. Therefore, he failed to satisfy the exception justifying release of confidential records. See id. 5:10-23. It is abundantly clear we properly granted PCA’s protective order after no other exception was presented to justify disclosure.

Conclusion

For the foregoing reasons, our 04/05/12 order was proper both procedurally and substantively and the instant appeal should either be quashed or said order affirmed.

      . The appeal was docketed late due to court error. We only received official notice of the instant appeal in mid June. Consequently, We were not able to request Robins submit a concise statement of matters on appeal, pursuant to Pa. R. A. P. No. 1925 (b) (2012), and still timely file our opinion.


author: FRITSCH, J.,

text:
    In re Estate of Samuel Rappaport.

      Geoffrey C. Hazard & Alan C. Promer, for plaintiff.

      Michael A. Bloom & Charles W. Wolfman, for defendant.
    June 11, 2012
   FRITSCH, J.,

The matters presently before the court are a second set of cross-appeals filed by the beneficiaries and the current administrator d.b.n.c.t.a. of the estate of Samuel Rappaport, deceased (hereinafter collectively referred to as the “estate”), and Richard and Lois Basciano, former executors of said estate, following the remand of the case by the Pennsylvania Superior Court. These appeals arise from this court’s order, amended adjudication and amended decree of March 2, 2012, issued in response to exceptions filed to this court’s initial adjudication addressing objections to the first and final account and supplemental account of the estate of Samuel Rappaport. We file this opinion pursuant to Pennsylvania rule of appellate procedure 1925(a).

BACKGROUND

On September 6, 1994, Samuel Rappaport died. During his lifetime, Mr. Rappaport owned commercial real estate and operated several businesses throughout the Philadelphia region and in several other states. Upon his death, the multifaceted network of his businesses became part of his estate and was entrusted to his named executors.

In 2002, then executors Richard Basciano and Lois Basciano, nee Palmer (hereinafter sometimes referred to collectively as the “Bascianos”), were removed by this court for self-dealing. Thereafter, the Bascianos filed afirst and final account and a supplemental account covering their administration of the estate. In response to the accounts, Samuel Rappaport’s family, the beneficiaries of the estate, filed objections with this court. The objections alleged several instances of self-dealing by the executors and sought repossession of certain properties sold by the Bascianos on behalf of the estate, a surcharge for the self-dealing, and reimbursement for various charges against the estate.

On August 27, 2010, we issued a lengthy adjudication addressing the objections with an attached decree. Thereafter, exceptions were filed by the Bascianos that were rendered moot by the filing of an appeal from our adjudication to the Superior Court of Pennsylvania by the estate of Samuel Rappaport subsequently, the Bascianos also filed an appeal from our adjudication. This court issued an opinion on December 29, 2010. Therein, we advised that we wished to revise our adjudication to address the exceptions, but were precluded from doing so by the then-pending appeals. We further noted our willingness to address the exceptions upon remand from the Superior Court of Pennsylvania. Subsequently, the Superior Court remanded the matter to this court. On March 2, 2012, following remand, we filed an amended adjudication and decree in response to the exceptions. On April 3, 2012, the beneficiaries of the estate, the administrators of the estate, and the Bascianos each appealed our amended adjudication and decree.

STATEMENTS OF MATTERS COMPLAINED OF ON APPEAL

Pursuant to our 1925(b) orders dated March 13, 2012, appellants filed their respective statements of matters complained of on appeal.

ISSUES RAISED ON APPEAL BY THE ESTATE

In their April 3,2012 concise statement of issues raised on appeal, the beneficiaries and administrator jointly alleged the following:

1. The court erred in failing to apply principles of res judicata and not finding that all transactions determined to be self-dealing by Judge Lawler in his 2002 adjudication are voidable at the sole option of the estate.
2. The Will did not permit self-dealing without prior court approval and the court erred in not rescinding the self-dealing transactions and imposing surcharge where no court approval was obtained.
3. The court erroneously considered the adequacy of consideration, good faith, lack of damage to the estate, and alleged repayment of loans, as defenses to self-dealing without court approval.
4. The court failed to award the entire amount of legal fees, $1,303,158.87 and costs plus interest incurred by beneficiaries in their successful removal action.
5. The court erred by failing to award 100% of the legal fees and costs incurred in pursuing the surcharge action against the Bascianos.
6. The court erred when it failed to require the B ascianos to reimburse all legal fees they charged to the estate where they did not meet their burden of proving those fees were legitimate, reasonable, and necessary expenses and were not related to their unsuccessful defense of the removal petition.
7. The court erred by failing to issue a surcharge for the unsubstantiated expenses and placing the burden on the estate rather than executors to establish the necessity and reasonableness of such expenses.
8. The court erred and committed a capricious disbelief of competent evidence when it failed to surcharge the executor for $500,000 in connection with Hollywood Beach (the $500,000 reduction).
9. The court erred in not surcharging Basciano for the $1,000,000 executor fee he obtained in conjunction with administering this estate.

ISSUES RAISED ON APPEAL BY RICHARD AND LOIS BASCIANO

On April 3, 2012, Richard and Lois Basciano each filed a concise statement of issues raised on appeal. As several alleged errors appear on both Richard and Lois’ concise statements, we present a merged set of alleged errors as follows:

1. The court erred in sustaining any of the objections and imposing a surcharge on the former executors given that the Bascianos’ actions resulted in the value of the estate increasing markedly throughout their tenure as executors.
2. The court erred in rescinding the SR utility and Dimeling & Schreiber garage transactions because the executor had an implied waiver of self-dealing and was otherwise permitted to sell the properties in repayment of loans that he made to the estate.
3. The beneficiaries consented to the transactions at issue and are thus estopped from challenging said transactions, making the court’s imposition of liability erroneous.
4. The court erred when it failed to consider the relationship between the wrongdoing of RRR and Wil Rappaport, the RICO action and the retaliatory conduct of the objectors in belatedly challenging the SR utility and Dimeling & Schreiber garage transactions.
5. The court erred when it added new findings of fact and conclusions of law to its prior 1925(a) opinion to support the proposition that the Beneficiaries were unable to object in a timely fashion because they feared Richard Basciano.
6. The court erred in directing the rescission of the Dimeling & Schreiber garage transaction as said property was not owned by the estate.
7. The court erred in sustaining the objections relating to the Dimeling & Schreiber garage and Hollywood Beach garage transactions as said properties were not owned by the estate.
8. The court erred in including Lois Basciano within its award rescinding the Dimeling & Schreiber garage • transaction.
9. The court erred in asserting jurisdiction over partnership and out-of-state property.
10. The court erred in calculating the rescission remedy awarded with respect to objections 5 and 10 to'the girst and final account regarding the SR utility and Dimeling & Schreiber garage transactions, respectively.
11. The court erred in accepting the damages calculation of the estate’s expert Glenn Newman with respect to the SR utility and Dimeling & Schreiber garage transactions.
12. The court had no authority to order Richard Basciano to jointly and severally return the SR utility property with three keys, as three keys was not joined as a party.
13. The court erred in entering judgment against Lois Basciano for attorneys’ fees in connection with transactions that occurred prior to her appointment as co-executor.
14. The court erred in ordering a surcharge against Lois Basciano where the surchargeable offense occurred within the first ten months of her five-year tenure and where beneficiaries supported her appointment.
15. The court erred in sustaining a challenge to Richard Basciano’s additional executor commissions.
16. The court erred in awarding attorneys’ fees and costs.

DISCUSSION

At the outset of our discussion, we believe it is important to highlight the substantive modifications we made to our original adjudication and decree in formulating our amended adjudication and decree. First, we reduced from $2,462,807.47 to $523,807.47, the refund owed by the Bascianos to the estate for legal fees incurred by Richard and Lois Basciano and charged to the estate for services through August 23, 2002, the date of their removal as executors.

Second, we added a conclusion of law regarding an improper $220,000 price deduction agreed to by Richard Basciano in the BocaDel Mar Shopping Center transaction, which is still owed to the estate. Moreover, we amended our original decree to reflect the $220,000 price reduction still owing to the estate. This debt represents the amount that Richard Basciano, as executor, directed his partners in the Boca Del Mar partnership to deduct from the $1.5 million to be paid to the estate, and pay directly to him as part of a side deal.

Third, we corrected a typographical error in our original adjudication and decree regarding the Hollywood Beach and Boca Del Mar transactions. The two transactions were challenged in objections as improper sales of estate properties to purchasing partnership entities, RW Ventures and T&W Rappaport Investments. In our original adjudication, we intended to direct that the Bascianos repay to the estate the $1.5 million take-back for the Hollywood Beach garage and movie theatre transaction based upon our findings of fact therein. See, original adjudication, findings of fact, at 48-54. In our original decree, however, we inadvertently indicated that the $1.5 million owed to the estate was instead related to the Boca Del Mar transaction.

Our original adjudication contained a conclusion of law that stated that the remaining principal from the Boca Del Mar transaction not paid to RW Ventures for the $1.5 million take-back was owed to the estate. In our amended adjudication, we removed that conclusion of law concerning Boca Del Mar and substituted a conclusion of law concerning the Hollywood Beach garage and movie theatre transaction, which stated that the remaining principal not paid to T&W Rappaport Investments for the $1.5 million take-back was owed to the estate. Finally, we included language in our amended adjudication which confirmed the account, as supplemented, filed by the Bascianos, as modified by our rulings. Furthermore, our decree was also amended to reflect these alterations.

We will first address matters complained of on appeal concerning modifications reflected in our amended adjudication. Then, where applicable, we will turn our attention to other issues raised for the first time in the current set of cross-appeals.

ISSUES RAISED BY THE ESTATE

NEW ISSUES RELATING TO CHANGES REFLECTED IN THE AMENDED ADJUDICATION

The estate asserts that this court abused its discretion and committed an error of law when we reduced the amount the Bascianos were to reimburse the estate from $2,462,807.47 to $523,807.47 for legal fees charged to the estate. This reimbursement represents attorney’s fees and costs the Bascianos expended in defending against the action to remove them as executors. The estate’s position is that the Bascianos should reimburse the entire amount of $2,462,807.47 because the Bascianos allegedly failed to meet their burden of proving those fees were legitimate, reasonable and necessary expenses of the estate and not related to their unsuccessful defense against the removal petition. We disagree with the estate’s stance as it was our intent to require the Bascianos to reimburse the estate for fees relating to removal only.

An executor has a duty to ensure that his or her purely private interests are not advanced at the expense of the estate. In re Pitone’s Estate, 489 Pa. 60, 66, 413 A.2d 1012, 1015 (1980). An executor is not entitled to charge to the estate fees for counsel retained for the purpose for preventing his or her removal. See, In re Estate of Bruner, 691 A.2d 530, 535 (Pa. Super. Ct. 1997) (reducing executor’s attorney fees where a portion of the fees were for services that did not benefit the estate); In re Clark’s Estate, 14 Pa. D&C 751, 753 (O.C. Phila. 1930) (counsel fees incurred by guardian in opposing her removal are not chargeable to the estate, being expended on her own behalf and not for the benefit of the estate).

In this case, the Bascianos accrued and charged legal fees to the estate for their unsuccessful defense against their removal. In essence, the estate contends that this court was correct to direct the Bascianos to reimburse $2,462,807.47 to the estate for payments the estate made to “fund Mr. Basciano’s unsuccessful defense in the removal litigation.” Original adjudication at 77. This $2,462,807.47 figure ,was the product of a stipulation entered into by the parties regarding legal fees. In a joint effort to avoid presenting evidence as to amount and reasonableness of all legal fees each side incurred in estate-related matters, the parties stipulated to the total legal fees borne by each side, for any purpose, prior to and after removal. At the time we issued our original adjudication, we adopted the $2,462,807.47 figure as the amount the former executors improperly charged the estate during their administration.

Following the Superior Court’s remand of the case back to this court, we revised our adjudication to reflect more accurately the amount of legal fees the Bascianos charged to the estate that were predominantly connected with their unsuccessful defense against the removal action. Shortly before we issued our amended adjudication, in response to the exceptions filed on September 15, 2010, we directed the Bascianos to produce all of the relevant legal invoices in un-redacted form. These produced invoices were color coded to delineate which expenses specifically related to removal proceedings, administration of the estate, other work performed in the orphans’ court not pertaining to removal and litigation in other matters. After receiving this legal breakdown of fees, which we accepted, we reduced the amount the Bascianos owed to the Estate to $523,807.47, which represented the fees they expended solely in conjunction with the removal proceedings. It was apparent that extensive legitimate legal fees were required to be paid by the Bascianos to administer the estate during their substantial tenure as co-executors, and such fees are not appropriately returnable to the estate.

As reflected in our initial adjudication, our intent always was to charge to the Bascianos only with those legal fees they expended in defense against the removal action. On remand, when more specific information was furnished to the court regarding legal fees the Bascianos charged to the estate, we amended our adjudication accordingly.

ISSUES PREVIOUSLY ADDRESSED IN OUR PRIOR OPINION

Estate issues 1 through 5 and 7 through 9 were addressed in our original opinion, and we will not expand on our analysis of those issues herein.

ISSUES RAISED BY RICHARD AND LOIS BASCIANO

NEW ISSUES RELATING TO CHANGES REFLECTED IN THE AMENDED ADJUDICATION

The Bascianos allege that we erred when we sustained the objections relating to the Dimeling & Schreiber garage and the Hollywood Beach garage transactions because the estate did not own these properties. We disagree. We previously addressed this issue with respect to the Dimeling & Schreiber garage transaction in our prior opinion. As the facts underlying the decedent’s ownership in the properties involved in the transactions are similar in nature and the legal arguments are essentially the same, we incorporate our arguments from our prior opinion into our present discussion regarding the Hollywood Beach garage transaction.

With regard to both the Dimeling & Schreiber garage and the Hollywood Beach garage, the Bascianos allege that the properties were not assets of the estate but rather were partnership property not subject to our jurisdiction. We disagree because the estate partnerships at issue were atypical as they were overwhelmingly owned by Samuel Rappaport or his children and were completely managed and controlled by Samuel Rappaport. Unlike a partnership where individuals proportionately own and operate the entity, the Rappaport partnerships were controlled by Samuel Rappaport alone. Accordingly, we properly exercised our jurisdiction to grant the estate’s objection in part and require the $1.5 million take-back be repaid, with interest, regarding the Hollywood Beach garage and movie theatre transaction.

Although not directly raised on appeal, the Bascianos have previously contended that it would be improper to modify our original adjudication and decree in order to alter some of our conclusions of law and directives. In our amended adjudication, we removed the conclusion of law concerning Boca Del Mar and added a conclusion of law concerning the Hollywood B each garage and movie theatre transaction, which stated that the remaining principal not paid to T&W Rappaport Investments for the $1.5 million take-back was owed to the estate.

The Bascianos argued that the court should decline to correct the typographical error in our original decree because of the manner in which the error was brought to the court’s attention. According to the Bascianos, estate’s counsel, in contravention of Orphans’ Court Rule 7.1, sent a letter to chambers requesting that we correct the aforementioned error when counsel should have filed exceptions. The Bascianos claimed that because the estate deviated from the required procedure, the estate has waived its ability to challenge our original decree. Letter memorandam of law from John A. Guernsey, esquire, attorney for Richard Basciano, to the honorable C. Theodore Fritsch, Jr., administrative judge of Bucks County orphans’ court (Feb. 7, 2012) at 15. We disagree with the contention that this court is effectively powerless to correct an error where we inadvertently inserted the names of Boca Del Mar and R.W. Ventures for Hollywood Beach and T&W Rappaport Investments in a portion of our original adjudication.

The orphans’ court has the complete powers of a court of equity, which includes, but is not limited to, the “inherent discretionary power to review and correct its own decrees.” Estate of Kendall, 982 A.2d 525, 532 (Pa. Super. Ct. 2009) (quoting, In re Estate of Bell, 463 Pa. 109, 114, 343 A.2d 679, 681 (1975)). Even though our original decree assigned the take-back to the Boca Del Mar transaction, our original adjudication clearly indicated that we intended that the remaining balance owed to T&W arising from the Hollywood Beach transaction be paid back with interest.

Furthermore, prior to remand, we expressed to the Superior Court our desire to address such matters. Accordingly, we acted within our discretion and authority when we addressed in our amended adjudication and decree the issue concerning our inadvertent transposition of nomenclature in our original adjudication.

OTHER ISSUES RAISED FOR THE FIRST TIME IN THE PRESENT APPEAL

A. RRR, Wil Rappaport, and the RICO Action

The Bascianos also claim that we failed to consider the relationship between the alleged wrongdoing of RRR and Wil Rappaport, the RICO action, and the beneficiaries’ retaliatory conduct in belatedly challenging the SR Utility and Dimeling & Schreiber garage transactions. They argue that the corporate fiduciary, appointed after the removal of the Bascianos as Executors, improperly petitioned this court to compromise and abandon millions of dollars in claims the Bascianos asserted, on behalf of the estate, against RRR and Wil Rappaport. We disagree.

The present cross-appeals arise from an amended adjudication and decree issued in response to exceptions filed to this court’s initial adjudication addressing objections to the first and final account. The first and final account solely concerns the period when the Bascianos were co-executors. The Bascianos were removed from their positions as co-executors in 2002 for self-dealing and a new administrator was appointed to oversee the estate. The current administrator is now responsible for managing and conducting litigation on behalf of the estate rather than the former co-executors. Accordingly, the above stated issues raised by the Bascianos are not germane to the amended adjudication and decree.

B. New Findings of Fact and Conclusions of Law in Our Prior Opinion

The Bascianos allege that we improperly added new findings of fact and conclusions of law to our prior 1925(a) opinion “to bootstrap the proposition that the beneficiaries were unable to object in a timely fashion because they were afraid of Richard.” Richard Basciano’s concise statement of matters complained of on appeal, at 2. They further claim that we employed these new findings and conclusions to explain and salvage our original adjudication and decree, but admit that we have not incorporated these additional findings and conclusions into our amended adjudication.

We are perplexed by the statement of error concerning matters stated in our previous opinion. Essentially, the Bascianos complain that we attempted to use our prior opinion to buttress the findings of fact and conclusions of law contained in our original adjudication. Bafflingly, they maintain that we erred even though we did not include those supplemental elements into our amended adjudication. The Bascianos assert that the omission of these findings and conclusions is indicative of a fatal flaw in our amended adjudication and decree. We do not find this position persuasive. Instead, we posit that our original opinion appropriately contained expanded commentary on the finding, discussion and conclusions in our original adjudication. It was not intended, however, to serve as a supplemental adjudication. The factual findings in our adjudications speak for themselves and are properly subject to explanation and interpretation.

C. Alleged Errors Concerning Lois Basciano

The Bascianos allege that this court erred with respect to three decisions we made specifically regarding Lois Basciano. First, the Bascianos maintain that we erred in including Lois Basciano within our award rescinding the Dimeling & Schreiber garage transaction. Second, they claim that we erred in entering judgment against Lois Basciano for attorneys’ fees in connection with transactions that occurred prior to her appointment as co-executor. Third, the Bascianos assert that we erred in ordering a surcharge against Lois Basciano where the surchargeable conduct occurred within the first ten months of her five-year tenure and where the beneficiaries supported her appointment. For the reasons that follow, we believe that the Bascianos’ arguments concerning our decisions relating to Lois Basciano are without merit.

First, theBascianos allege that the court erred in ordering Lois Basciano to return the property and income with respect to the Dimeling & Schreiber garage transaction because she did not purchase the property. The appointment as executor of an estate confers honor and duty as well as the duty to oversee the administration of the estate with competence. In the Matter of the Estate of Frey, 693 A.2d 1349, 1353 (Pa. Super. Ct. 1997). Failure to adhere to this standard while causing damage to the estate can result in liability being imposed on the executor. Id. at 1355.

Although Mrs. Basciano was not the named purchaser in the property transaction, she was involved in the purchase through her role as a co-executor of the Estate. In her role as co-executor, Mrs. Basciano signed the deed on behalf of the estate transferring ownership of the Dimeling & Schreiber garage to Richard Basciano. Her role in the transaction harmed the Estate, thus warranting the imposition of liability against her.

Next, the Bascianos’ claim that the court erred in imposing liability against Lois Basciano for a portion of attorneys’ fees incurred by the estate in its challenge of transactions the Bascianos conducted during their tenure as co-executors for two reasons. First, the Bascianos contend that these fees included challenging transactions that occurred prior to Lois Basciano being appointed as co-executor. As we stated in our prior 1925(a) opinion, we are “unaware of any such scenario in which liability has been imposed upon Mrs. Basciano for transactions she was not involved with as co-executor.” 1925(a) opinion, Dec. 29, 2010, at 22. Mrs. Basciano was appointed co-executor of the estate in February 1997. The SR utility, Dimeling & Schreiber garage and the Hollywood Beach transactions all took place subsequent to the appointment of Mrs. Basciano as co-executor. As we properly imposed liability on Lois Basciano for the underlying transactions that occurred during her tenure as co-executor, we also imposed liability on Lois Basciano for attorneys’ fees in connection with challenging the aforementioned transactions.

Second, the Bascianos assert that it was only reasonable to assess such fees against Mr. Basciano because we stated in our conclusions of law that “attorneys’ fees incurred by the estate...are reasonably imposed on Richard Basciano.” Amended adjudication, at 83. The Bascianos erroneously equate our conclusion of law emphasizing the appropriateness of an award of attorneys’ fees against Richard Basciano due to his role in improper self-dealing transactions with a deduction that he alone was liable for said fees. We intended no such interpretation. Our decree is abundantly clear that Lois Basciano is also jointly and severally liable for the fees. As Richard Basciano was the active executor and actor in crafting the underlying transactions, we naturally referred to the imposition of fees on him as reasonable given his involvement. Lois Basciano, although not as active a participant, was still responsible as a co-executor. We merely emphasized the acts of commission undertaken by Mr. Basciano rather than the acts of omission by his wife — who failed to discharge her duties as co-executor — in crafting our conclusion of law.

Finally, the former co-executors contend that the court erred in imposing liability against Lois Basciano where the beneficiaries supported her appointment to the position and the only surchargeable conduct occurred in the first ten months of her five-year tenure. We do not agree. An executor has a duty to oversee the administration of the estate with competence. In the Matter of the Estate of Frey, 693 A.2d at 1353. When an executor fails to adhere to this standard while causing damage to the estate, he or she can be held liable for damages. Id. at 1355. The Bascianos’ claim that Mrs. Basciano should be absolved from liability because the beneficiaries supported Lois’ appointment with the express understanding that she would merely “compliment” rather than challenge her husband’s decision-making status. We dispute the notion that an executor obtains some sort of equitable defense when he or she is perceived by the estate beneficiaries to be a complimentary fiduciary. Indeed, if Lois Basciano had faithfully discharged her duties as co-executor of the estate, perhaps she and her husband could have avoided liability in this matter.

D. Richard Basciano and Additional Executor Commissions

Finally, the Bascianos claim that we erred when we denied Richard Basciano’s request for $1,100,000 in additional executor’s fees. We believe this contention is without merit as Mr. Basciano has been sufficiently compensated for the services he provided to the Estate during his administration.

In both our original and amended adjudications, we permitted Mr. Basciano to retain a $1,000,000 executor’s commission paid in light of his several years of service and success in initially improving the estate’s financial position. Amended adjudication, at 82. Conversely, we believe that any further compensation, such as the request for $1,100,000 in new executor’s fees, is exorbitant when one considers that Richard and Lois Basciano were removed as co-executors of the estate due to self-dealing and failure to discharge their fiduciary duties.

Accordingly, we properly denied Richard Basciano’s request for an additional executor commission.

ISSUES PREVIOUSLY ADDRESSED IN OUR PRIOR OPINION

Basciano issues 1 through 3, 6, 9 through 12 and 16 were addressed in our original opinion, and we will not expand on our analysis of those issues herein.

CONCLUSION

For the reasons set forth in this opinion, we find that the cross-appeals are without merit and should be dismissed.

      . For ease of discussion, we have paraphrased each issue raised on appeal.

      . For ease of discussion, we have paraphrased each issue raised on appeal.

      . As a preliminary matter, concerning the Bascianos’ argument that this court erred when we sustained the estate’s objection to the Hollywood Beach garage transaction we observe that we overruled the objection in part and granted it in part. Amended decree at 3. We directed that “[t]o the extent that T&W rappaport investments was not paid in full for the $ 1.5 million take-back, the remaining principal shall be paid, with interest.” Id.


author: ZULICK, J.,

text:
    BAC Home Loans Servicing, LP v. Jaskolka

      Shandra Arkema, for plaintiff.

      John L. Dewitsky, for defendant.
    May 23, 2012
   ZULICK, J.,

This matter is before the court on defendant, Gayle A. Jaskolka’s, petition to open default judgment in a mortgage foreclosure action. Plaintiff, BAC Home Loans Servicing, LP, f/k/a Countrywide Home Loan Servicing, LP (“BAC”), filed a complaint in mortgage foreclosure against Ms. Jaskolka on January 5, 2010. After the complaint was served by publication, a default judgment was entered on May 21, 2010 in the amount of $35,247.24.

Ms. Jaskolka, through her plenary guardian, filed a petition to open the default judgment on January 25,2012. The matter was listed for argument on May 7,2012 and the parties appeared and argued their respective positions.

DISCUSSION

“A petition to open a default judgment is addressed to the equitable powers of the court and the trial court has discretion to grant or deny such a petition.” Castings Condo. Ass’n, Inc. v. Klein, 663 A.2d 220, 222-23 (Pa. Super. 1995) (citing Fink v. Gen. Accident Ins. Co., 594 A.2d 345, 346 (Pa. Super. 1991)). To succeed on a petition to open a default judgment, the moving party must establish the following three elements: (1) the petition to open was filed promptly; (2) the default can be reasonably explained or excused; and (3) there is a meritorious defense to the underlying claim. See Stauffer v. Hevener, 881 A.2d 868, 870 n.3 (Pa. Super. 2005) (citation omitted). “[A]ll three factors must appear before a court is justified in opening a default judgment.” McCoy v. Pub. Acceptance Corp., 305, 451 Pa. 495, 498 A.2d 698, 700 (1973).

The first element involves a question of timeliness and there is no bright line test that must be applied to determine whether a petition to open a judgment is timely. See Flynn v. Am. W. Airlines, 742 A.2d 695, 698 (Pa. Super. 1999). Instead, the court focuses on two factors: “(1) the length of the delay between discovery of the entry of the default judgment and filing the petition to open judgment, and (2) the reason for the delay.” Id.

Here, default judgment was entered on May 21, 2010. Ms. Jaskolka was not served personally with the mortgage foreclosure complaint; rather it was served by publication. Although no factual record has been established to determine the status of Ms. Jaskolka’s health on the date default judgment was taken, she was determined to be totally incapacitated on December 21, 2010 due to senile dementia, which the court found to be “permanent, irreversible and will progressively worsen.” Final decree of the honorable Linda Wallach Miller adjudicating Gayle Ann Jaskolka a totally incapacitated person (Dec. 21, 2010). Darlene O’Neil was appointed plenary guardian of Ms. Jaskolka’s person and estate on December 21, 2010. See id.

In cases where courts have found that a petition to open was promptly filed, the period of delay was normally less than one month. See Castings Condo. Ass’n., 663 A.2d at 223 (444 Pa. Super. 68) (finding that delay of three months did not constitute prompt filing); see also Duckson v. Wee Wheelers, Inc., 620 A.2d 1206, 1209 (Pa. Super. 1993) (noting one day was timely); Fink v. Gen. Accident Ins. Co., 594 A.2d 345, 346 (Pa. Super. 1991) (noting period of five days was timely); Alba v. Urology Assocs. of Kingston, 598 A.2d 57, 58 (Pa. Super. 1991) (explaining fourteen days was timely); Quatrochi v. Gaiters, 380 A.2d 404, 408-09 (Pa. Super. 1977) (explaining period of sixty-three days was not prompt); Schutte v. Valley Bargain Center, Inc., 375 A.2d 368, 371 (Pa. Super. 1977) (holding period of forty-seven days was not prompt); Pappas v. Stefan, 304 A.2d 143, 146 (Pa. Super. 1973) (finding period of fifty-five days was not prompt).

It is understandable that it would take some time after her appointment for Ms. O’Neil to learn the nature and extent of Ms. Jaskolka’s financial affairs. However, when she did, she chose not to file a petition to open the judgment, but rather sought relief through the Monroe county residential mortgage diversion program, which she entered by written request on March 15, 2011. That filing was almost three months after her appointment, and almost ten months after the default judgment was taken.

The second element requires an explanation for the default. Ms. O’Neil argues that her mother’s medical condition rendered her unable to comprehend her obligation to respond to the mortgage foreclosure suit. This was clearly established as of December of that year, and it does seem probable that Ms. Jaskolka was not in control of her faculties at the earlier date when the default judgment was entered, although there has been no record made on that point.

The third requirement is that a meritorious defense to the foreclosure action is shown to exist. Pennsylvania Rule of Civil Procedure 237.3 provides that a petition for relief of entry of default judgment shall have attached thereto a verified copy of the answer which the petitioner seeks leave to file. See Pa. R. Civ. P. 237.3(a). Here, Ms. Jaskolka has attached preliminary objections. Preliminary objections may be attached to a petition to open judgment instead of an answer. See Peters Twp. Sanitary Auth. v. Am. Home & Land Dev. Co., 696 A.2d 899, 901 (Pa. Cmwlth. 1997). Ms. Jaskolka contends in her objections that plaintiff’s complaint “fails to make any averment regarding the date the mortgage actually became contractually delinquent.” Def.’s Pet. To open default J., Ex, B. ¶ 2. She points to the Pennsylvania Housing Finance Agency Law, which provides that:

[a]ny mortgagee who desires to foreclose upon a mortgage shall send to such mortgagor at his or her last known address the notice provided in subsection (b): Provided, however, That such mortgagor shall be at least sixty (60) days contractually delinquent in his mortgage payments or be in violation of any other provision of such mortgage.

35 P.S. §1680.403c(a).

A review of the complaint reveals that BAC did send Ms. Jaskolka an Act 91 notice, which was attached to the mortgage foreclosure complaint as exhibit “A.” The Act 91 notice was mailed on October 1, 2009 and contained the following information about the default:

You have not made monthly mortgage payments for the following months and the following amounts are now past due:
Monthly charges: 08/01/2009 $1,541.85
Late charges: 08/01/2009 $44.94
Other late charges: Total late charges $0.00
Uncollected costs $0.00

Pl.’s compl., Ex. A. The Act 91 letter was incorporated into the complaint.

BAC complied with the requirement that the mortgage be in default for a period of sixty days before the Act 91 notice was sent. The notice was dated October 1, 2009 and the default was stated to have occurred on August 1, 2009.

Finally, Ms. Jaskolka alleges that the complaint was improperly verified. The complaint contains a verification signed by BAC’s counsel, not an officer of the lender. Counsel’s verification states that “she has personal knowledge of some of the facts averred in the foregoing pleading” and that the source of her information is “public records and reports of plaintiff’s agents.” Pl.’s compl. verification. While this is a defective verification under rule 1024, Ms. Jaskolka does not contend that the information in the complaint is not accurate. Further, the lack of a proper verification is subject to amendment. See Lewis v. Erie Ins. Exch., 421 A.2d 1214, 1217 (Pa. Super. 1980) (before dismissing petition on basis of defective verification, court should allow petitioner to amend).

As the Pennsylvania Commonwealth Court stated in Peters Township, “a court must determine whether there are equitable considerations which require that a defendant, against whom a default judgment has been entered, receive an opportunity to have the case decided on the merits.” Peters Twp., 696 A.2d at 902 (citing Duckson, 620 A.2d at 1208). The complaint alleges that defendant has not paid her mortgage payment since August 1, 2009. Defendant has not identified a meritorious defense to the mortgage foreclosure action. Her petition will therefore be denied.

ORDER

And now, this May 23, 2012, following consideration of defendant Gayle A. Jaskolka’s petition to open default judgment, plaintiff BAG home loans servicing, LP f/k/a Countrywide Home Loan Servicing LP’s response and the parties’ briefs and arguments, it is ordered that the petition is denied.


author: FOX, J.,

text:
    Cook v. City of Philadelphia

      Pro Se, for plaintiff.

      Anne B. Taylor, for defendant.
    July 9, 2012
   FOX, J.,

OPINION

Appellant Samuel Cook (Cook) appeals this court’s order of April 25, 2012, which granted the city of Philadelphia Risk Management Department’s (city) motion to quash and dismissed Cook’s appeal from the decision of a risk management department claims adjuster. The adjuster had decided that Cook was not entitled to compensation for belongings lost when the city demolished his house.

FACTUAL and PROCEDURAL HISTORY

Cook’s appeal arises out of the city’s demolition of a house owned by Cook and located at 3211 North Carlisle Street (property). After having issued numerous code violations for the condition of the property, the city filed an action against Cook requesting that the property be demolished because it was in eminent danger of collapse. At the conclusion of that case, the court entered an order directing Cook to vacate the property and authorized the city to demolish the structure. The city demolished the structure, and Cook subsequently made a claim against the city for the value of certain personal property which he alleged was still in the property at the time of demolition.

Claims for personal injury and property damage against the city are evaluated by the city risk management department (“RMD”). The RMD assigns a claim adjuster to assess the merit of the claim and negotiate a settlement of meritorious claims. The RMD decision is not binding and does not have any particular legal effect.

Once Cook filed a claim form with the RMD, the RMD assigned claims adjuster Jerome Brisbon to evaluate Cook’s claim. Brisbon concluded that Cook’s claim was not meritorious and did not settle the claim with Cook. In a letter dated September 7, 2011, Brisbon explained that his decision was based on the fact that the property was properly demolished pursuant to a court order and Cook was given notice and time to remove his personal property from property before demolition commenced. The instant appeal is purportedly taken from this RMD determination not to settle as articulated in Brisbon’s September 7, 2011 letter.

DISCUSSION

Because the RMD is not an “agency,” and because Brisbon’s September 7, 2011 letter was not an “adjudication,” ’ Cook cannot maintain an appeal therefrom and this court’s order quashing Cook’s appeal should be affirmed.

A court’s jurisdiction cannot be simply taken as a given. “Jurisdiction must be clearly conferred; it cannot be assumed by implication.” Arrott v. Allegheny County, 328 Pa. 293, 295, 194 A, 910, 911 (1937). This court can therefore only entertain a challenge to an RMD decision if some authority confers jurisdiction for such a challenge. Because the local agency law does not confer such authority on this court, and because Cook points to no other authority in his brief and memorandum, this court correctly found that it was without authority to review the RMD’s decision.

The local agency law provides that “[a]ny person aggrieved by an adjudication of a local agency who has a direct interest in such adjudication shall have the right to appeal therefrom to the court vested with jurisdiction of such appeals by or pursuant to Title 42 (relating to judiciary and judicial procedure).” 2 Pa.CS. § 752. This does not however, empower the court to review RMD decisions because the RMD is not an agency within the meaning of the statute, and because the departmental decisions about the merit of claims against the city are not “adjudication^].” In DeSivo v. Pa. State Police, the commonwealth court interpreted an analogous provision of the administrative agency law and found that the Pennsylvania State Police’s internal affairs division (IAD) was not an “agency” from which an appeal could be taken when the IAD declined to recommend that charges be brought against a certain trooper. 919 A,2d 361, 364 (Pa, Cmwlth. Ct. 2007). The court reasoned that “the IAD is not a[n]... agency that renders final appealable orders; all it can do is recommend that charges be brought, and it does not have the power to impose sanctions that would make anyone aggrieved as a result of its findings.” Id. Like the IAD, the RMD does not render any “order,” nor does it have any power to impose sanctions or alter the legal status of individuals or entities. The reasoning of DeSivo applies equally here, and decisions of the department’s claims unit are therefore not appealable.

Even if the RMD were an “agency” within the meaning of the local agency law, the decisions of its claims adjusters regarding whether or not to compensate claimants are not appealable because those decisions are not “adjudication[s].” Under the local agency law, only “adjudication[sj” may be appealed. 2 Pa.C.S. § 752. In essence, to constitute an “adjudication,” “the order or action of the agency, board or commission must be judicial in nature and final.” Manheim Township School Dist v. State Board of Education, 276 A.2d 561, 564 (Pa. Cmwlth. Ct 1971).

In In re Scranton, the commonwealth court considered an appeal of the scranton planning commission’s finding that a certain area should be designated as “blighted.” The court held that a finding of blight was not an “adjudication” underthe local agency law. 572 A.2d 250, 253 (Pa. Cmwlth. Ct 1990). In so finding, the court reasoned that:

This finding [of blight] authorizes the redevelopment authority to study an area that may or may not result in the enactment of a redevelopment plan. When the proposed plan, as prepared by the redevelopment authority, is ultimately presented to the governing body, the governing body is free to reject the plan on any ground, including a belief that conditions in the project area do not warrant the redevelopment of the area. Unless the governing body approves the plan, the planning commission’s certification of blight and the redevelopment authority’s approval of the plan are merely beginning and middle to a process that will have no end.

Id. [internal citations omitted].

Just as in Scranton, an RMD claim adjuster’s decision does not change the legal status or legal rights of either the claimant or the City. The fundamental logic of Scranton — that agency decisions which do not bind parties or change legal rights — means that, as in this case, the claim adjuster’s decision cannot be considered an appealable “adjudication” either. Since the RMD is not an “agency” within the meaning of the local agency law, and since the decisions of its claims adjusters are not “adjudications,’ they are not appealable under the local agency law.

This does not leave Cook without a remedy. If Cook feels that the city wrongfully destroyed his personal property, then he has the option of pursuing a legal claim against the city. Since it was not an adjudication, the determination of the RMD’s claims adjuster that Cook’s claim did not have merit has no preclusive or binding effect and does not prevent Cook from filing an action against the city. Cook may be owed compensation for his property; however, he cannot pursue that compensation through an agency appeal.

For these reasons, this court’s order of April 25, 2012 granting the department’s motion to quash should be affirmed.

      . City of Philadelphia v. Cook, May term 2009, no. 3040.