author: CORSO, J.,

text:
    Myers v. RB & AK Properties, Inc.

      C.P. of Montgomery County,
    No. 2013-06890

      Jacob Singer and Albert Martin, pro se prospective intervenors.
    Feb. 11, 2015-
   CORSO, J.,

Prospective intervenors, Albert Martin and Jacob Singer, petitioners, appeal from this court’s order of November 12, 2014 denying their emergency petition to intervene in this action of mortgage foreclosure. The relevant facts are not complex.

On April 2,2013, Harold and VeraMyers, h/w, plaintiffs, filed and the prothonotary duly indexed a complaint in mortgage Foreclosure against defendant, RB & AK Properties, Inc. The property subject to the mortgage is 2752 Mt. Carmel Avenue, Glenside, Montgomery County, Pennsylvania. On October 23,2013, default judgment was entered in favor of plaintiff.

Petitioners purchased the subject property at an upset tax sale held by the Montgomery County Tax Claim Bureau on September 12,2013, and received a deed which was recorded on January 17, 2014.

Whenplaintiffproceededto sell the property at a sheriff’s sale, they discovered that petitioners had purchased the property at an upset tax sale. Petitioners were notified of the pending sheriff’s sale, originally scheduled for June 25, 2014.

On October 7, 2014, the instant “emergency petition to intervene” was filed. Petitioners challenged the validity and enforceability of plaintiffs’ mortgage against “their” property and sought to intervene to protect their financial interest pursuant to Pa. R. C.P. 2327.

On October 5, 2014, the court held a hearing on the emergency petition. At the outset, Martin stated that the substantive issue is whether the plaintiffs’ mortgage is ahead of “my purchase.” Addressing the procedural issue, he stated: “The defendant (plaintiff) has filed a foreclosure action against me, the property owner — I have a deed to the property — without my being part of the foreclosure action. So I haven’t had my day in court, so to speak, and I’m here to have that —Petitioners also contended that the mortgage sought to be foreclosed was indexed under an incorrect parcel number.

The hearing concluded with the court continuing the next scheduled sheriff’s sale for sixty (60) days and requesting legal memoranda. Thereafter, on November 10, 2014, the emergency petition was denied “based upon the holding in Financial Freedom, SFC v. Cooper, 21 A.3d 1229 (Pa. Super. 2011).”

Following “request for reconsideration” and denial, on December 8,2014, notice of appeal to the Commonwealth Court from theNovember 10,2014 order was filed. Pursuant to Pa. R.A.P. 1925(b)(1), petitioners filed a timely “concise statement of errors complained of on appeal.” Basically, petitioners state that they had no knowledge, actual or constructive of the mortgage foreclosure proceedings, and that they are “long experienced” in matters of tax sales, and had conducted their “usual careful title search” of the public records to determine if any mortgage or liens existed. They concluded the mortgage was not found and could not be found because it had not been properly indexed.

Petitioners also stated that the Financial Freedom case relied upon by the court “is not applicable to the case at bar”, and that the controlling case is M.J.M. Financial v. Burgess, 533 A.2d 1092 (Pa. Commonwealth, 1987).

Initially, it must be noted that a purchaser at an upset tax sale takes the property subject to all existing mortgages, liens and encumbrances. Section 609, Real Estate Tax Sale Law, 72. P.S. Section 5860.609.

Petitioners’ contention that they did not have, nor could they have had constructive notice of plaintiffs’ mortgage is without merit. Petitioners fail to aver or present any evidence that they searched the records of the Prothonotary of Montgomery County or that they searched the alphabetical indexes of the recorder of deeds.

Petitioners assert they did not have constructive notice of this action because the mortgage itself was not properly indexed. A parcel number search is not a complete title search. Also required, among other things, is a search in the Prothonotary’s index. 42 Pa. C.S. §4302(a), provides:

(a) Real property. — Except as otherwise provided by stature or prescribed by general rule...every document affecting title to or any other interest in real property which is filed and indexed in the office of the clerk of the court of common pleas of the county where the real property is situated...shall be constructive notice to all persons of the filing and full contents of such document.”

By this statute, petitioners did have constructive notice of the mortgage and foreclosure action.

In addition to the lack of notice argument, petitioners’ statement of errors assesrts that the court erred in relying on Financial Freedom, SFC v. Cooper, 21 A.3D 1229 (Pa. Super. 2011) rather than M.J.M. Financial v. Burgess, 111 Pa. Cmwlth. 301, 533 A.2d 1092 (1987). Petitioners, are incorrect. Financial Freedom, SFC is on point and controls this case. There, the Superior Court affirmed an order denying the petition of a tax sale purchaser to intervene in a mortgage foreclosure action commenced before the tax sale. The following is language of the court is relevant to this case:

“The right to intervene in an action is governed by Pa. R.C.P. 2327 which states that a person who has a recognized interest in the outcome of the litigation shall be permitted to intervene ‘at any time during the pendency of an action.’ In the instant case, appellant filed his petition to intervene after default judgment was entered in favor of appellee.
To petition the court to intervene after a matter has been finally resolved is not allowed by our Rules of Civil Procedure. It is only during the pendency of an action that the court may allow intervention. Pa. R.C.P. 2327.

The court quoted Blacks Law Dictionary for when an action is pending, and concluded “where a court no longer has power to permit intervention because a matter has been finally adjudicated, a hearing on a petition to intervene would be pointless.”

The appellant, petitioner to intervene, also claimed that he was an indispensable party and needed to be joined. The court stated:

“As appellant acquired his interest during the course of the mortgage foreclosure proceedings, appellant was clearly not required to join him as a party. On this point, the law is well settled. ‘[Ojnce a foreclosure has been commenced, any person or entity acquiring an interest in the property will be bound by the decree and need not be joined.”' First Union Mortgage Corp. v. Frempong, 744 A.2d 327, 336 (Pa. Super. 1994) (emphasis added).
It is perfectly well settled that encumbrance[r]s who become such pendente lite are not necessary parties to a bill to foreclose, although they are bound by the decree, for they can claim nothing except what belonged to the person under whom they assert title, since they have constructive notice; and there would be no end to such suits, if a mortgagor might by new encumbrances, created pendente lite require all such encumbrances to be made parties.

The court went on to state:

“In so holding, we note that it was the commencement of the mortgage foreclosure action by appellee that put appellant on constructive notice. Despite this notice, which we impute to appellant, he nonetheless purchased the property at the tax sale. This was his folly.”

M.J.M. Financial v. Burgess did not involve a mortgage foreclosure action. It involved a petition to open judgment and to intervene by a tax sale purchaser. There, the guardian of an adjudicated incompetent whose property was sold at a tax sale, sought to set the sale aside because of improper notice. The tax claim bureau conceded inadequate notice and the court ordered that the sale be set aside on September 24, 1985. M.J.M. had purchased the property at the upset tax sale on September 9, 1985 and they filed a petition to open judgment and to intervene based upon lack of notice and failure to join the tax sale purchaser. On appeal the Commonwealth Court stated that a petition to intervene filed after entry of an adjudication is untimely, but noted that Rule 2327 does not address the problem presented in that case where MJM alleged that it was unaware of the petition to set aside the sale until after the order setting aside the sale.

The court stated,

“A motion to intervene after entry of a decree should be denied except in extraordinary circumstances (citations omitted) and held ‘that such extraordinary circumstances are present here, and hence that intervention should have been permitted.’”

As such, the court reversed and permitted M.J.M. to intervene in the tax sale litigation.

Based upon the foregoing, petitioners had constructive notice of the mortgage foreclosure; Rule 2327 does not permit intervention after final judgment has been entered; there are no extraordinary circumstances present to warrant intervention; and the Financial Freedom case mandates the denial of the emergency petition to intervene at issue here.

      . Under 42 Pa.C.S. §2736, the Prothonotary is the “clerk of the court of common pleas” for purposes of filing documents under §4302(a).


source: Caselaw Access Project

author: MCINERNEY, J.,

license: Public Domain

text:
    IMS Health Inc. v. Zurich American Insurance Co.

      C.P. of Philadelphia County,
    April Term 2014,
    No. 2046
    Feb. 12, 2015-
   MCINERNEY, J.,

Presently before this court is plaintiff IMS Health Incorporated’s (“IMS”) partial motion for summary judgment. Specifically, IMS seeks payment/reimbursement of defense costs by defendant Zurich American Insurance Company (“Zurich”) associated with defending Sherman Act claims in the action captioned Symphony Health Solutions Corp. et. al. v. IMS Health Incorporated, 2:13 cv- 04290 (E.D. Pa. July 24, 2013)(“underlying action”). For the reasons discussed below, the motion for partial summary judgment is granted.

On July 24, 2013, Symphony Health Solutions Corp. (“Symphony”), a competitor of IMS, filed a six count complaint in the Eastern District of Pennsylvania against IMS. The complaint alleges four counts sounding in violations of the Sherman Act, unlawful monopolization under the ShermanAct(countl), attempted monopolization under the Sherman Act (count II), monopoly leveraging under the Sherman Act (count III), and unlawful use of exclusionaiy contracts under the Sherman Act (count IV), and two common law counts for tortious interference with existing and prospective contractual relationships (count V), and unfair competition (count VI). Of the four Sherman Act claims, count I is the only count which includes one conclusory statement regarding “disparaging competitors” in its claim of anti-competitive conduct. The two counts alleging violations of Pennsylvania state law claims specifically allege disparagement and set forth the conduct therein.

Zurich issued nine primary general liability policies to IMS for the periods June 30, 2003 through June 30, 2012. The Zurich policies provide defense and indemnity coverage for lawsuits involving “personal and advertising injury” to others. Specifically, the policies provide in relevant part as follows:

...We will pay those sums that the insured becomes legally obligated to pay as damages because of “personal and advertising injury” to which this insurance applies. We will have the right and duty to defend the insured against any “suit” seeking those damages. However, we will have no duty to defend the insured against any “suit” seeking damages for “personal and advertising injury” to which this insurance does not apply.
...The insurance applies to “personal and advertising injury” caused by an offense arising out of your business but only if the offense was committed in the “coverage territory” during the policy period.

The Zurich policy defines “personal and advertising injury” to mean “injury...arising out of one or more of the following offenses: ...[o]ral or written publication, in any manner, of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services.”

IMS is the named insured on all of the Zurich Primary policies. Six Zurich primary policies GLO2923479-07 through 12 issued from June 30, 2006 to June 30, 2012 were issued to IMS in Connecticut. Zurich Primaiy Policies GLO2923479-07 through -09 contain an endorsement which states, “it is understood and agreed that IMS HEALTH INCORPORTED is domiciled in Connecticut.” Zurich Policy GLO2923479-10, 11 and 12 identifies IMS’s mailing address as various cities in Connecticut. The earlier policies identify the mailing address of IMS with a New York address. None of the Zurich Primary Policies identifies a Pennsylvania address for IMS.

IMS provided Zurich with notice of the filing of the Symphony complaint and requested Zurich to provide it with a defense. On October 9, 2013, Zurich agreed to participate in the defense of IMS in connection with the Zurich primary policies and reserved its right to withdraw from the defense and seek reimbursement of defense costs if it was later determined that no coverage applies. On April 1, 2014, Zurich revised its coverage position with respect to the Zurich policies. Zurich agreed to continue to pay for the defense of IMS in the underlying action for the state law claims which were potentially covered under the “personal and advertising injury” subject to a complete reservation of rights. Zurich, however, disclaimed any duty to defend or indemnify IMS under any coverage part for the Sherman Act claims since the claims did not fall within the “personal and advertising claims.” Zurich further concluded that since the defense costs incurred for the potentially covered state law claims and the non covered Sherman Act claims were readily apportioned, Zurich determined it has no obligation to pay for the defense of the Sherman Act claims. IMS responded that reimbursement of defense costs would violate Zurich’s insurance contract with IMS Health.

On April 1, 2014, Zurich instituted a declaratory judgment action in the District Court for the District of Connecticut against IMS. In the Connecticut action, Zurich seeks a declaration that it does not have a duty to defend or indemnify IMS for the Sherman Act claims in the underlying action. Zurich also seeks an allocation of costs incurred in the defense of the non covered claims and the potentially covered claims and sought to recoup from IMS the payments it made and will make for the defense of the non covered Sherman Act antitrust claims. On May 23, 2014, IMS filed a motion to dismiss or stay, or in the alternative, transfer. In September 2014, the Connecticut court heard oral argument on said motion. The motion remains outstanding as of the writing of this opinion.

On April 18, 2014, IMS instituted this action against Zurich and various other defendants seeking in part a declaration as to Zurich’s duty to defend in the underlying action. IMS has now moved for partial summary judgment on the duty to defend.

DISCUSSION

At issue before this court is whether Zurich has a duty to defend IMS in the underlying action. IMS argues that Zurich has a duty to defend in the underlying action since potentially covered claims remain in the underlying complaint. Zurich, on the other hand, acknowledges the existence of potentially covered claims in the underlying action, however it argues that it does not have a duty to defend the non covered claim, i.e. the Sherman Act claims and seeks recoupment of the defense costs paid for the defense of said claims to date. After careful review of the parties’ submissions and the applicable case law, the court finds that a conflict of law does not exist as it pertains to Zurich’s duty to defend, Zurich has a duty to defend IMS in the underlying action until a determination is made that no liability exists for all the potentially covered claims in the underlying action and any claim for reimbursement of defense costs for non covered claims is premature.

Pennsylvania and Connecticut apply the same analysis to determine whether an insurer has a duty to defend. In Pennsylvania, an insurer is obligated to defend its insured if the factual allegations of the complaint on its face encompass an injuiy that is actually or potentially within the scope of the policy. As long as the complaint “might or might not” fall within the policy’s coverage, the insurance company is obliged to defend. An insurer may not justifiably refuse to defend a claim against its insured unless it is clear from an examination of the allegations in the complaint and the language of the policy that the claim does not potentially come within the coverage of the policy. The duty to defend is not limited to meritorious actions; it even extends to actions that are “groundless, false, or fraudulent” as long as there exists the possibility that the allegations implicate coverage. Accordingly, it is the potential, rather than the certainty, of a claim falling within the insurance policy that triggers the insurer’s duty to defend.

Similarly, in Connecticut an insurer’s duty to defend is triggered if at least one allegation of the complaint falls even possibly within the coverage. A liability insurer has a duty to defend its insured in a pending lawsuit if the pleadings allege a covered occurrence, even though facts outside the four comers of those pleadings indicate that the claim may be meritless or not covered. The obligation of the insurer to defend does not depend on whether the injured party will successfully maintain a cause of action against the insured but on whether the injured party has, in its complaint, stated facts which bring the injury within the coverage. If the latter situation prevails, the policy requires the insurer to defend, irrespective of the insured’s ultimate liability. Like Pennsylvania, the duty to defend in Connecticut is triggered whenever a complaint alleges facts that potentially could fall within the scope of coverage. Based on the foregoing, a false conflict exists and it is unnecessary to perform a choice of law analysis.

The next question to be addressed is whether the factual allegations contained in the underlying complaint triggers Zurich’s duty to defend. Upon review of the factual allegations as well as the policy language it is clear that a duty to defend exists. The applicable policy at issue provides that Zurich has the right and duty to defend IMS in any “suit” seeking “personal and advertising injury” damages. The policy defines “personal and advertising” injury as “oral or written publication, in any manner, of material that slanders or libels a person or organization or disparages a person’s or organization’s goods, products or services.” The underlying complaint alleges facts and seeks damages for personal and advertising injury resulting from oral publications that slander IMS’ organization, goods and products. The underlying complaint alleges the following:

136. IMS has initiated a campaign to defame and disparage Symphony’s business in an attempt to steal clients and to prevent prospective clients from buying Symphony’s products.
137. IMS has made misrepresentations that are false and material. Clients and potential clients, who have no independent knowledge of the subject matter, have relied on IMS’s misrepresentations.
138. For example, an IMS representative told the senior vice president of sales for a pharmaceutical company customer that Symphony did not get compete weekly data and as a result, Symphony performs “modeling” rather than using or analyzing real data. IMS also stated that Symphony’s data feeds were less accurate and could not support weekly reports; IMS then touted that it had more accurate data. As a result, the client expressed its desire to move away from Symphony and to IMS.
139. IMS told another customer’s business and procurement teams that Symphony Health is “unethical and [you] should not do business with [Symphony].”
140. IMS sales representatives also told Symphony’s customers that Symphony would lose access to a key data supplier. This false representation benefitted IMS. IMS’s statements caused customers and potential customers to delay purchasing and switching decisions.
141. IMS told another customer that Symphony will never have access to key data on specialty drug products. IMS hid the fact that it uses exclusionary contracts to block Symphony from that data.
142. Symphony has worked to undo the effects of IMS’s defamation, but upon information and belief, clients have decided to buy products from IMS instead of Symphony, as a result of IMS’s disparaging statements.
143. Symphony has lost and continues to lose profits, as well as suffer damage to its reputation and good will.

In fact, Zurich has acknowledged that the Pennsylvania common law claims of tortious interference of contract ana unfair competition are potentially covered because they may involve an offense by IMS resulting in “personal and advertising injury.” Since the underlying action asserts a claim that is potentially covered under the Zurich policies, Zurich is obligated to defend the entire suit, including the non covered claims, until and unless all claims in the suit are confined to claims that fall wholly outside the Zurich policy coverage.

Zurich argues that in a “mixed suit” action, a suit containing potentially covered claims and non covered claims, Connecticut law provides that an insurer is solely obligated to pay for the defense of the potentially covered claims during the pendency of the action. The court does not agree. As so eloquently articulated by the court in Buss v. Superior Court of Los Angeles County , the precedent relied upon by the Connecticut Supreme Court in adopting the approach to allow reimbursement of defense costs for non covered claims:

[ W] e can, and do, justify the insurer’s duty to defend the entire “mixed” action prophylactically, as an obligation imposed by law in support of the policy. To defend meaningfully, the insurer must defend immediately. (Montrose Chemical Corp. v. Superior Court, supra, [6 Cal.4th 287, 295, 24 Cal.Rptr.2d 467, 861 P.2d 1153 (1993)].) To defend immediately, it must defend entirely. It cannot parse the claims, dividing those that are at least potentially covered from those that are not. To do so would be time consuming. It might also be futile: The “plasticity of modem pleading” (Gray v. Zurich Insurance Co., supra, [65 Cal.2d 263, 276, 54 Cal.Rptr. 104, 419 P.2d 168 (1966)]) allows the transformation of claims that are at least potentially covered into claims that are not, and vice versa.

This language illustrates the problems that can be anticipated if the insurer is permitted to pick and choose which claims it will defend. Such a policy necessarily would lead to inefficiency and perhaps inconsistency in the resolution of disputes. Under Connecticut law, if after a conflict of law analysis demonstrates that Connecticut law is applicable, Zurich may seek reimbursement of non covered claims when a determination as to the liability for the potentially covered claims is resolved. Up until that time, Zurich has a duty to defend IMS in the underlying action.

CONCLUSION

For the foregoing reasons, IMS’ motion for partial summary judgment is granted. Zurich has a duty to defend plaintiff in the action captioned Symphony Health Solutions Corp. et. al. v. IMS Health Incorporated, 2:13 cv- 04290 (E.D. Pa. July 24, 2013) until all the claims in that suit are confined to a recovery that fall wholly outside the coverage provided under the Zurich policies at issue.

ORDER

And now, this 12th day of February 2015, upon consideration of plaintiff IMS Health Incorporated’s motion for partial summary judgment and defendant Zurich American Insurance Company’s response in opposition, it hereby is ordered that the motion for partial summary judgment is granted. Zurich has a duty to defend plaintiff in the action captioned Symphony Health Solutions Corp. et. al. v. IMS Health Incorporated, 2:13 cv- 04290 (E.D. Pa. July 24, 2013) until all the claims in that suit are confined to a recovery that fall wholly outside the coverage provided under the Zurich policies at issue.

      . Zurich letter dated April 1, 2014 stating separate law firms were retained to represent IMS in the underlying action for the state law claims and the Sherman Act claims.

      . The issue of reimbursement of defense costs of non covered claims is not ripe for determination since potentially covered claims exist in the underlying action for which a defense is required by contract. However, when a determination is made as to any liability regarding the potentially covered claims, a true conflict of law exists as to whether Zurich is entitled to reimbursement of defense costs for the non covered claims. In Pennsylvania, following a court’s declaration that an insurer had no duty to defend its insured, an insurer is not entitled to reimbursement of defense costs absent an express provision in the written contract. See, American and Foreign Ins. Co. v. Jerry’s Sport Center, Inc., 606 Pa. 584, 2 A.3d 526 (2010). Connecticut law, on the other hand, recognizes a cause of action for reimbursement to the extent required to ensure that the insured not reap a benefit for which it has not paid and thus be unjustly enriched. See, Security Ins. Co. of Hartford v. Lumbermens Mut. Cas. Co., 264 Conn. 688, 826 A.2d 107 (2003).

      . Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Commercial Union Ins. Co., 589 Pa. 317, 908 A.2d 888 (2006); General Accident Inc. Co. of Am. v. Allen, 547 Pa. 693, 692 A.2d 1089, 1095 (1997).; Erie Ins. Exch. v. Transamerica Ins. Co., 516 Pa. 574, 533 A.2d 136, 1368 (1987) (describing the duty to defend as arising “whenever the complaint filed by the injured party may potentially come within the coverage of the policy.”).

      . Casper v. American Guarantee & Liability Ins. Co., 408 Pa. 426, 184 A.2d 247 (quoting judge Learned Hand’s assertion in Lee v. Aetna Casualty & Surety Company, 178 F.2d 750, 752 (2d Cir.1949)).

      . See Allen, 692 A.2d at 1094 (‘”[T]he obligation to defend an action brought against the insured is to be determined solely by the allegations of the complaint in the action....”).

      . Travelers Cas. & Sur. Co. of Am. v. Netherlands Ins. Co., 312 Conn. 714, 739-40, 95 A.3d 1031, 1049 (2014)(citations omitted).

      . Underlying action.

      . Zurich’s October 9, 2013 letter and April 2,2014 letter.

      . American and Foreign Ins. Co. v. Jerry’s Sport Center, Inc., 606 Pa. 584, 2 A.3d 526, 542 (2010).

      . 16 Cal.4th 35, 65 Cal.Rptr.2d 366, 939 P.2d 766 (1997)., 65 Cal.Rptr.2d 366, 939 P.2d at 775.

      . Id. at 939 P.2d at 775.

      . At the conclusion of the underlying action, Zurich may be entitled to file an action to recoup the defense costs paid for any uncovered claims per Security Ins. Co. v. Lumbermens Mut. Cas. Co., 264 Conn. 688, 716, 826 A.2d 107 (2003).


author: ZULICK, J.,

text:
    Collazo v. Mount Airy #1, LLC

      C.P. of Monroe County,
    No. 3578 CV 2014

      Stewart I. Rosenblum, for plaintiff.

      David Solfanelli, for defendant.
    Jan. 16, 2015-
   ZULICK, J.,

This case comes before the court on defendant Mount Aiiy #1, LLC’s (Mount Airy) preliminary objections to plaintiff Ruben Collazo’s second amended complaint for declaratory judgment. Mr. Collazo alleges in the complaint that Mount Aiiy Casino personnel improperly excluded him from the casino because he maintained an anti-gambling website; wrongfully caused his arrest for defiant trespass; and unconstitutionally excluded him from the premises due to his “Italian origin,” and in violation of his freedom of speech. Finally, he argues that provisions of the Pennsylvania Race Horse Development and Gaming Act (Gaming Act) authorizing his exclusion are unconstitutional.

Mount Airy filed preliminary objections, asserting that Mr. Collazo’s complaint is legally insufficient pursuant to Pa. R. Civ. P. 1028(a)(4); and, alternatively, that Mr. Collazo has failed to include the Pennsylvania Gaming Control Board (Board) as anecessary party to Mr. Collazo’s constitutional challenges. Both parties filed briefs, and the matter was argued before the court on October 6, 2014. permitted on the premises of the casino, that he would be arrested for criminal trespass if he did enter the premises, and that he should know better as someone of “Italian origin.” Plaintiff’s complaint ¶15. Mr. Collazo has since attempted to enter Mount Airy, and has been arrested on two occasions, resulting in two criminal proceedings, one of which resulted in a conviction of defiant trespass before a magisterial district court, which Mr. Collazo has appealed to the court of common pleas. The second criminal proceeding was still pending at the magisterial level.

Mr. Collazo filed a complaint with the board seeking redress for his exclusion from the casino. The board dismissed his complaint.

Section 1514 of the Pennsylvania Gaming Act refers to offenders who may be barred from licensed casinos in Pennsylvania. Section 1514 provides in part

(a) General rule. — The board shall by regulation provide for the establishment of a list of persons who are to be excluded or ejected from any licensed facility. The provisions shall define the standards for exclusion and shall include standards relating to persons who are career or professional offenders as defined by regulations of the board or whose presence in a licensed facility would, in the opinion of the board, be inimical to the interest of the Commonwealth or of licensed gaming therein, or both.

4 Pa.C.S.A. 1514(a).

Thus, pursuant to Section 1514, the Board may establish an undesirable patron list to be used to exclude such patrons in all of Pennsylvania’s casinos. However, Mr. Collazo does not allege that the board placed him on the list.

The Gaming Act provides in Section 1515 that individual casinos may eject or exclude persons for other reasons:

§1515. Repeat offenders excludable from licensed gaming facility
A licensed gaming entity may exclude or eject from its licensed facility any person who is known to it to have been convicted of a misdemeanor or felony committed in or on the premises of any licensed facility. Nothing in this section or in any other law of this Commonwealth shall limit the right of a licensed gaming entity to exercise its common law right to exclude or eject permanently from its licensed facility any person who disrupts the operations of its premises, threatens the security of its premises or its occupants or is disorderly or intoxicated.

The Gaming Act provides in Section 1514 for notice and a hearing whenever an individual is placed on the undesirable patrons list by the board. Id. at §1514 (e) and (f). Similar notice and opportunity for hearing is not required in Section 1515 for the exercise of a casino’s common law rights to exclude a patron.

Mr. Collazo contends that Mt. Airy may not exclude him because (1) he is not on the board’s state-wide undesirable patron list, and (2) he has not been provided procedural due process required by section 1514. However, Section 1514 has no applicability to Collazo’s situation. He does not allege that the board excluded him from all Pennsylvania casinos. Therefore, he had no right to a hearing under Section 1514, His complaints relate to actions taken locally by Mt. Airy personnel to exclude him from that casino.

Plaintiff also contends that the casino violated his constitutional right to freedom of speech and due process of law by excluding him from its premises without a hearing. He alleges that he was excluded by Mt. Airy because he owned an internet site, www. Mtairy-poconoscoalitionofpremiumplayers.com which is “an internet faith based gambling addiction forum...” Second amended complaint, ¶8.

This claim fails because there is no allegation in the complaint of state action taken to deprive Collazzo’s constitutional rights. A complaint seeking relief for a constitutional violation must aver the presence of state action. Great American Federal Savings & Loan v. Novotny, 442 U.S. 366, 384, 99 S.Ct. 2345, 2355, 60 L.Ed.2d 957, 971 (1979). The federal constitution ensures the right to equal protection under the law, but only against state action, Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161, 1180 (1948), and not private action. Welsch v. Aetna Ins. Co. 343 Pa. Super. 169, 172, 494 A.2d 409, 411 (Pa. Super. 1985). Mr. Collazzo claims that Mt. Airy’s trespassing complaint to the police led to his arrest “under color of law.” Second amended complaint, ¶39. However, this suit is against Mt. Airy, not the Pennsylvania State Police. There is no allegation that Mt. Airy is a state actor.

Mr. Collazo also raises the claim that Mt. Airy did not have the right to exclude him from the premises under 4 Pa.C.S. §1515. The language of Section 1515 provides in part

...Nothing in this section or in any other law of this Commonwealth shall limit the right of a licensed gaming entity to exercise its common law right to exclude or eject permanently from its licensed facility any person who disrupts the operations of its premises, threatens the security of its premises or its occupants, or is disorderly and intoxicated.

4 Pa.C.S.A. § 1515 (emphasis added).

Mr. Collazo argues that he is being excluded solely because of the content of his website, not due to inappropriate conduct at the casino. He contends that Section 1515 limits Mt. Airy’s common law rights as a landowner to prevent a defiant trespass. See 18 Pa.C.S. §3503(b).

The Pennsylvania Supreme Court reviewed remedies available to an owner for removal of a person from his or her premises after the order to leave has been disregarded

As owner, the defendant had the right to order plaintiff from the premises, and in case of refusal had the right to remove him by force, if necessary. He pursued the course which was commended by this court in Sloan v. Schomaker, 136 Pa. 382, 390, 20 Atl. 525, where it was said that, when the plaintiffs were ordered from defendant’s store, ‘it was their legal duty to go. In strict law defendant might then have used sufficient force to put them out with his own hands. Instead of doing so, he adopted the prudent and commendable course of sending for an officer.

Yoder v. Yoder, 86 A. 523, 534 (Pa.1913).

The plain meaning of Section 1515 does not limit the full panoply of Mt. Airy’s common law rights to exclude a person from the premises. The statute provides that “...(n)othing in this section or in any other law of this Commonwealth shall limit the right of a licensed gaming entity to exercise its common law right to exclude or eject permanently from its licensed facility any person who... (is disruptive, threatening, disorderly or intoxicated).” 4 Pa.C.S.§1515. The statute makes dear that unruly persons may be evicted. The statute does not say that Mr. Airy is otherwise limited in evicting patrons.

Mr. Collazo additionally asserts that he was denied equal protection and due process because he was excluded from the premises due to his Italian heritage. Again, no state action has been alleged. The Pennsylvania Human Relations Act provides that it is unlawful

(f)or any person being the owner, lessee, proprietor, manager, superintendent, agent or employee of any public accommodation, resort or amusement to:
(1) Refuse, withhold from, or deny to any person because of his race, color, sex, religious creed, ancestry, national origin or handicap or disability, orto any person due to use of a guide or support animal because of the blindness, deafness or physical handicap of the user or because the user is a handler or trainer of support or guide animals, either directly or indirectly, any of the accommodations, advantages, facilities or privileges of such public accommodation, resort or amusement. 43 P.S. § 955.

However, the second amended complaint seeks no relief under this statute, and the facts as pled in the complaint do not support such a claim. The second amended complaint states that Mr. Shiffer “chastised plaintiff in that he should know better as someone of ‘Italian origin’ than to establish such a website.” Second amended complaint ¶ 16. While the comment may have been inappropriate, the statement does not indicate Mr. Collazo was denied access to Mount Airy because of his ethnicity.

Mr. Collazo asserts that Mount Airy should not have excluded him, as he was participating in the goals enumerated in House Resolution 648 Session 2010 concerning problem gambling and gambling addictions. The house resolution and the various sections of the gaming act encourage individual casinos to develop gambling addiction programs, but they do not grant Mr. Collazo the right to be on the premises of the casino simply because he runs an anti-gambling website.

Because Mr. Collazo has failed to state a legally sufficient claim, Mount Airy’s second preliminary objection, failure to join a necessary party, is moot.

ORDER

And now, this 16th day of January, 2015, upon consideration of Mount Airy #1 LLC’s preliminary objections and the briefs and arguments of both parties, it is ordered that defendant’s preliminary objection in the nature of a demurrer is sustained and the action is dismissed.

      . 18 Pa.C.S. Section 3503(b) provides: (b) Defiant trespasser. — (1) A person commits an offense if, knowing that he Is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by (i) actual communication to the actor; 18 Pa.C.S.A. § 3503.


author: MINORA, J.,

text:
    Commonwealth v. Clotter

      C.P. of Lackawanna County,
    No. 13 CR 1884

      Shane Scanlon, for Commonwealth.

      Donna DeVita, for defendant.
    Feb. 10, 2015-
   MINORA, J.,

Factual Background

On or about May 5, 2013, members of the Scranton Police Department were dispatched by the Lackawanna County Communications Center to the 700 block of Vine Street in the City of Scranton, Lackawanna County, Pennsylvania. The nature of the call was that a male had been shot in this area. Upon their arrival, the police found a black male, later determined to be Rashan Crowder, lying in the roadway with a gunshot wound to the chest.

Medical personnel were summoned and arrived at the scene. These personnel unsuccessfully initiated life saving measures. They subsequently transferred Mr. Crowder to Geisinger Community Medical Center. The victim, Rashan Crowder, was later pronounced dead at Geisinger.

On May 6,2013, an autopsy was performedby a forensic pathologist on the decedent. The results of that autopsy as noted by Lackawanna County Coroner Tim Rowland indicated that Crowder, the decedent, had sustained two gunshot wounds, one to the chest and one to his right thigh. The cause of death was the gunshot wound to his chest. The manner of death was listed as a homicide. As a result of the autopsy findings, the police began a criminal investigation into this incident.

The police investigation determined that Crowder was a student at Lackawanna College and lived near the site of his death in the Tobin Hall dormitory. Numerous witnesses, not all in concurrence, led police to conclude what occurred on or about May 5, 2013.

Decedent Crowder was apparently accompanied on that fateful night by a friend named Shaquille Isbell. Isbell was an eye witness to the relevant events. Isbell told police that he was a friend of decedent Crowder and attended Lackawanna College with him.

Earlier that evening Isbell and Crowder attended a house party in the 400 block of Monroe Avenue in Scranton about two blocks from the area of the shooting. There may have been some words exchanged at the party but Isbell and Crowder left that party and walked to other locations in their hill section neighborhood and to a mini mart and returned to their dormitory. After the passage of time Isbell and Crowder left their dormitory and went back to the mini mart.

Upon leaving the mini mart to return once again to their dormitory, they happened upon a group of males and females on the comer of Monroe Avenue and Vine Street just up the street from the original party earlier that evening. The two groups began to give each other “attitude” and trash talking and insults back and forth. The unfortunate result of this exchange was that a male member of the group produced a handgun firing it at Rashan Crowder striking him in the right thigh. After the shooting, a University of Scranton security car happened to arrive at the scene thus causing the two groups to separate and walk down the 800 block of Vine Street from Monroe Avenue towards Madison Avenue, the location of the Tobin Hall dormitory. During this one block plus walk, words, trash talk and insults resumed.

The arguments continue beyond Madison Avenue on Vine Street to an area in the 700 block of Vine Street near Moir Court. At that point, a second male from the group begins to goad the male into shooting the decedent for a second time. Repeatedly, the second male encourages and urges the first male to fire again. When the second shot occurs, it hits Decedent Crowder in the chest fatally injuring him. At that point, the group of males and females all flee the area.

Subsequent investigation and security video review revealed that the shooter was Ryan Harding, the man holding the gun. Our defendant, Marlon Clotter was also identified as the male coaxing, encouraging and goading Ryan Harding to fire shots at decedent Crowder.

Marlon Clotter was bom on September 10, 1991, one of eight children. His mother abused dmgs and alcohol, thus providing a traumatic childhood which began where he was bom in Queens, New York. He moved at various times to Atlanta, Georgia and Scranton to stay with relatives or in foster homes. From 2008 to 2012, Clotter was incarcerated in SCI Pine Grove.

Clotter has a GED he earned while he was incarcerated. He also has an extensive history of drugs and alcohol abuse. His extensive history also extends to the legal system. As a juvenile, Clotter was arrested fourteen times and convicted of numerous crimes involving physical assault. Despite Clotter being placed in numerous juvenile facilities, he continued to repeat his mistakes and past pattern of behaviors.

Often while under supervision for one crime, Clotter would be arrested for another. At age seventeen, he was convicted as an adult. Tellingly, while under state parole supervision for that offense, Clotter committed the instant offense.

Procedural Background

On August 30,2013, Clotter’s preliminary hearing was held before Magisterial District Judge Sean McGraw. On September 30, 2013 by order of President Judge Thomas J. Munley, the undersigned was appointed to preside over this case. On November 7, 2013, discovery deadlines and motion deadlines were set as well as a tentative trial date for August of 2014. On November 6, 2013, the District Attorney for Lackawanna County issued a four count bill of information against Clotter. The defendant was formally arraigned the same day.

On January 15,2014, defense counsel filed an extensive omnibus motion on behalf of defendant Clotter. The Commonwealth responded to the omnibus on February 4, 2014. On July 3, 2014, the court decided Clotter’s voluminous omnibus motion.

On July 11,2014, the Commonwealth filed an amended bill of information containing five counts against Clotter. The additional or fifth count was criminal conspiracy to commit aggravated assault, 18 Pa. C.S.A. §903(a)(l): grade felony; $25,000.00; 20 years. On that same day, Clotter entered a guilty plea to one count of criminal conspiracy to commit aggravated assault. All other charges were dropped. Commonwealth agreed to recommend a minimum sentence of not more than seven years. (See Written Guilty Plea Colloquy).

On November 3,2014, a sentencing memorandum was filed on behalf of Clotter which was thoroughly reviewed by the court prior to sentencing. On November 5, 2014, a joint sentencing hearing was held for both defendant Clotter and the shooter, Ryan Harding. After consultation with the court reporter, it was determined that this joint proceeding began on November 5,2014 at 10:01 a.m. and concluded at 1:30 p.m. It is most unusual for a sentencing proceeding to take three and one half hours even if a joint one. In this case, it was done to allow extensive victim/ family/friend testimony and also to allow substantial defendant allocution. The court covers its reasons for the sentencing scheme for defendant Clotter starting at page 116 to page 121, N.T. 11/5/14-Proceedings of Sentencing. Earlier relevant dialogue begins with defendant Clotter at page 111.

Subsequent to sentencing, on November 10, 2014, counsel for defendant Clotter filed a reconsideration of sentence. That motion was denied on November 12, 2014 by order of this court. Defendant Clotter’s Notice of Appeal to the Pennsylvania Superior Court was filed on December 5,2014 and their concise statement of matters complained of on appeal was filed on January 28, 2015, thus giving rise to this opinion.

Appellate arguments of defendant Clotter

A. Whether the court committed an abuse of discretion by imposing a sentence in excess of the aggravated range where there were no circumstances warranting a sentence above the aggravated range?

B. Whether the sentence imposed was inappropriately harsh and excessive and an abuse of discretion?

C. Whether the court failed to take into consideration that the defendant is a product of particular circumstances and conditions of environment that were not fully and completely explored in the pre-sentencing report?

D. Whether the court committed an abuse of discretion when it failed to address the defendant’s request for boot camp eligibility?

Legal Standards

A. Whether the court committed an abuse of discretion by imposing a sentence in excess of the aggravated range where there were no circumstances warranting a sentence above the aggravated range?

B. Whether the sentence imposed was inappropriately harsh and excessive and an abuse of discretion?

Both arguments A and B are addressed to the court allegedly abusing its discretion in sentencing. Argument A alleges an abuse of discretion for imposition of a sentence in excess of the aggravated range, “where there are no circumstances to warrant such a deviation.” Argument B alleges the sentence imposed was inappropriately harsh and excessive and an abuse of discretion for that reason. Since both allege an abuse of discretion violation and for similar factual reasons we shall address both arguments A and B concurrently.

As background, this sentence being challenged is as a result of a guilty plea by defendant Clotter. It is therefore axiomatic that only three theories of appeal are given to defendant. First, that the plea was not knowing or voluntary. Second, that the court lacked jurisdiction, and third, that the sentence imposed was illegal.

Since the arguments regarding the first and second theories are not being raised, we will allow the third reason, attacking the legality of the court’s sentence, to guide our reasoning.

In Com. v. Lee, 876 A.2d 408,411 (Pa. Super. 2005), the Superior Court noted that, “...Appellant’s right to appeal the discretionary aspects of his sentence is not absolute.” Further, “It is well-settled that a ‘claim that the sentence imposed by the trial court was manifestly excessive is a challenge to the discretionary aspects of the sentence’.” Id. at 411.

“The Lee court goes on to cite Com. v. Bishop, 831 A.2d 656, 660 (Pa. Super 2003) for the proposition that two requirements must” be met prior to reaching the merits of a challenge to the discretionary aspects of a sentence. First, the appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of his sentence, (citations omitted). Second, he must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code...42 PA. CONS.STAT.ANN §9781(b). In order to establish the existence of a substantial question, the appellant must show, ‘actions by the sentencing court inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the sentencing process’.”

Com. v. Bishop, 831 A.2d at 660; Com. v. Lee, 876 A.2d at 411.

Assuming those prerequisites are met, the appeals court must then engage in a four pronged analysis. Com. v. Evans, 901 A.2d 528,533 (Pa. Super. 2006).

“[W]e conduct a four part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa. R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa. R.Crim.P. 1410 [now rule 7201; (3) whether appellant’s brief has a fatal defect, PA. R.A.P. 2119(a); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 PA. C.S.A. §9781(b).”

Since the analysis is within the purview of the appeals court, we will presume these matters are in order and we will address defendant’s issues on their merits.

Beginning at page 116 of the transcript of Sentencing from November 5,2014, the nature of the plea bargain and guilty plea are discussed. Thereafter, the court’s concern with Clotter’s extensive juvenile record is discussed along with his adult incarceration at SCI Pine Grove. Thereafter, recent violations of Clotter at Lackawanna County Prison were explored. That pattern of repetitive involvements with the criminal justice system along with his relative youth upon completion of any sentence were also discussed. The obvious context to these discussions is formulating a sentence that is consistent with the protection of the public and their safety. Especially, when this defendant Clotter was active in retrieving the weapon used (N.T. 11/5/14, p. Ill) and actively encouraging the shooter to use it. Clotter is the guy who brings a gun to a fist fight.

In addition, the gravity of the offense is in need of analysis when one considers that the aggravated assault with serious bodily injury pled to here was actually a homicide. We remain guided by the offense gravity score but the nature of the offense needs to be recognized and the opportunities to avoid it.

The encounter leading to the first shot to Crowder’s right thigh occurred on Monroe Avenue and Vine Street. The defendant Clotter and his group could have retreated down Monroe Avenue to diffuse the situation and the victim also had the means and opportunity to retreat throughout.

Other avenues of retreat existed in the alley west of Monroe Avenue between Monroe Avenue and Madison Avenue. A third opportunity to retreat also existed on Madison Avenue itself. Finally, they fled in Moir Court after the second and fatal shot. Four opportunities to avoid the confrontation were squandered by the defendant. These opportunities to retreat were being encouraged by some in defendant’s group. Even if defendant initially failed to consider retreat he was encouraged to walk away by Corey Williams and instead he stayed and encouraged escalating the use of the gun to increase the violence and danger rather than decrease it. Such poor judgment must be considered as this court believes it persists within the defendant to the date of sentencing.

The profound impact of taking the life of the victim by Ryan Harding as equipped and encouraged by this defendant cannot be understated. The extensive testimony by the victim’s family and friends was both moving and remarkable. This crime had an extensive impact on the college community at Lackawanna College in Scranton as well as the victim’s home town of Harrisburg, Pennsylvania.

The sentence as fashioned also tries to address defendant’s potential for rehabilitation. It is a seven year minimum. If defendant behaves in prison and takes advantage of prison’s educational opportunities he could be out long before this seventeen year maximum. In being on parole, it is hoped that the structure of future parole supervision out of jail would afford Clotter the discipline needed to thrive on the outside. Tellingly, this crime occurred while on state parole from SCI Pine Grove. It is hoped that a future parole experience will benefit defendant from this experience and be more successful. The long tail, though less than the statutory maximum, hopefully insures defendant remains motivated to correct his past behavior and lifestyle.

With these rationales in mind, we must now address the concept of abuse of discretion. The court stands accused of abusing its’ sentencing discretion. The cases require that the sentencing court’s advantageous perspective of viewing the defendant not be disturbed absent a, “manifest abuse of discretion.” Com. v. Smith, 543 Pa. 566, 673 A.2d 893, 895 (1996).

As stated in Smith, an abuse of discretion is more than a mere error in judgment, The record must show the sentencing court’s judgment was manifestly unreasonable or the result of partiality, prejudice, bias or ill-will or such lack of support as to be clearly erroneous. Grady v. Frito-Lay, Inc., 576 Pa. 546,839 A.2d 1038,1046 (2003).

The rationale behind the broad discretion given to the trial court and the appellate court’s deferential standard of review is, as noted, the sentencing court is in the best position to determine the proper penalty for the particular offense based upon and evaluation of the individual and the circumstances before it. Com. v. Jones, 418 Pa. Super. 93, 613 A.2d 587,591 (1992) en banc. The sentencing court is recognized in the case law to be in a superior position to “...view the defendant’s character, displays of remorse, defiance or indifference and the overall effect of the nature of the crime. Id. at 591.

The sentencing code at 42 Pa. C.S.A. §9721(b) illustrates the legal sentencing options available to the court. It also lists the factors the court should consider such as protecting public safety, the gravity of the offense, the impact of the life of the victim and the community and the rehabilitative needs of the defendant. 42 Pa. C.S.A. 9721(b). Thus, sentencing is individualized.

Furthermore, there are sentencing guidelines that the court must also consider. The guidelines are just that, guidelines for the court to consider. They are not mandatory but a deviation from these guidelines must be accompanied by a written explanation justifying and explaining the deviation. The core focus of such a review of a guideline deviation explanation is whether the individual sentence remains reasonable. At 42 Pa. C.S.A. §9781(c)3, it is explained that the appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if the appellate court finds, “(c)3 the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.”

In making this reasonableness inquiry, the statute at 42 Pa. C.S.A. §9781(d) directs the appeals court to review, “(1) The nature and circumstances of the offense and the characteristics of the defendant.” We have shown the defendant’s bringing a gun to a fist fight, retrieving the gun, encouraging the gun’s use and ignoring opportunities to retreat that were pointed out to him. We also showed defendant’s extensive record and recent prison misconduct. “(2) The opportunity of the sentencing court to observe the defendant including pre-sentence investigation.” 42 Pa. C.S.A. §9781(d)(2). We have already noted the lengthy sentencing hearing on November 5,2014 wherein a lengthy colloquy with defendant Clotter was conducted. We noted we read the pre-sentence report as well as all last minute filings and letters. “(3) The findings upon which the sentence was based.” 42 Pa. C.S.A. §9781(d)(3) these are noted in the notes of transcript as well as earlier in this opinion. Finally, “(4) The guidelines promulgated by the commission” are noted on the first page of the pre-sentence report. 42 Pa. C.S.A. §9781(d)(4). Both 42 Pa. C.S.A. §9781(c) and (d) prohibit a sentence outside of the guidelines which is unreasonable.

As noted in the case of Com. v. Walls, 592 Pa. 557, 926 A.2d 957,963 (2007) unreasonable is a term not defined by statute but in Walls, our Supreme Court notes that “unreasonable” commonly connotes a decision that is “irrational” or “not guided by sound judgment.”

Given the scheme of individual sentencing without the statute defining “unreasonable” the Walls court concludes that the concept of unreasonableness is to be, “...a circumstance-dependent concept that is flexible in understanding and lacking precise definition.” Id. at 963.

The Walls court determined by applying the guidelines under 42 Pa. C.S.A. §9781(c)(3) and (d) and42 Pa. C.S.A. §9721, we can be guided upon a reasonableness inquiry without fashioning any concrete rules to govern such an inquiry.

As the Walls court notes, the guidelines are advisory and non-binding. The sentencing court has no duty to impose a sentence considered appropriate by the commission. The guidelines need only to be considered by the sentencing court and to insure such consideration is substantive, the sentencing court must explain their departure from such guidelines. The guidelines are but one factor among many to be considered as per the sentencing code. Id. at 964, 569.

Since these guidelines are not mandatory, the sentencing court retains broad discretion in sentencing matters and therefore, they are empowered to sentence outside the guidelines although with an accompanying explanation as to why the guidelines are not reasonable in a given case. Wall generally 569, 570, 964. The Wall court concludes that in essence, the sentencing guidelines are advisory guideposts that are valuable as providing an essential starting point. The guidelines are to be respected and considered however, they recommend rather than require a particular sentence.

Since we hold that defendant Clotter was given an individualized sentence based upon the relevant sentencing code factors as well as with the respect and consideration of the guideline recommendations we conclude that upon review of the record, the post sentence motion and the Pa. R.A.P. 1925 issues, the court has fashioned a reasonable individualized sentence for this defendant not in any way abusing its discretion to so do.

C. Whether the court failed to take into consideration that the defendant is a product of particular circumstances and conditions of environment that were not fully and completely explored in the pre-sentencing report?

The essence of this argument is factual not legal. The court had the benefit of all the written materials in the pre-sentence report as well as last minute filings and letters.

The report referenced that Clotter had a difficult upbringing with a substance dependent mother and an absent father. The dysfunctional family situation created a need for his placement with family, friends and foster care. Unfortunately this added to the emotional instability of defendant’s childhood with a geographic instability as well. Probably as a result of these unfortunate circumstances, the defendant began to act out and become involved with out juvenile justice system. That involvement was frequent and repetitive. In virtually each instance, defendant Clotter chose to reach out to undesirable peer groups for the absent family support rather than to the counselors that were dedicated to trying to help Clotter lead a more productive life as a juvenile. Clotter admits at sentencing this led him to become a member of the Crips gang at least for a time.

His juvenile involvement led to a serious involvement with the adult criminal justice system. He was convicted and sentenced to SCI Pine Grove wherein he served adult time and was paroled on state parole. Clotter was under state parole supervision when the this present case occurred.

Clotter has a documented penchant for repeating his mistakes and making the wrong decisions throughout his young life. He alleges he is making progress because now he will accept responsibility for his criminal actions rather than trying to make excuses for them. Despite extensive discussions with the court, we remain unconvinced that he sees the need to stop the criminal actions which compel his need to accept responsibility. In other words, he allegedly accepts responsibility now for the impact of his actions without recognizing the need to cease those criminal actions which are the cause of his acceptance of responsibility in the first instance.

We believe, given the benefit of a thorough pre-sentence report, an extensive juvenile record along with an adult record and with recent prison misconducts that we have a grasp of defendants particular circumstances. The extensive colloquy between this court and defendant Clotter at the November 5, 2014 sentencing hearing only confirms our impression that we have a grasp of defendant’s particular circumstances.

Defendant is articulate and likeable but his record of poor judgment in terms of with whom he chooses to associate, juvenile adjudications and his adult conviction record prior to this mandate our decision.

We wish him well and hope he takes advantage of prison education, religion and job opportunities as he will emerge with a long life remaining to live. Despite all this, we believe we have considered all of the defendant’s relevant circumstances, conditions and environment, and judged Clotter on his actions as well as his words. Therefore, this argument is rejected.

D. Whether the Court committed an abuse of discretion when it failed to address the Defendant’s request for boot camp eligibility?

This argument presumes defendant would be eligible for boot camp but the pre-sentence report at page eighteen (18) under the heading, “Boot Camp Eligible: (No) If No, certain crimes and age (40+) are ineligible.

A review of 61 Pa. C.S.A. §3903 under definitions for an “Eligible Inmate” states,

“A person sentenced to a term of confinement under the jurisdiction of the department of corrections who is serving a term of confinement, the minimum of which is not more than two years and the maximum of which is five years or less...

Defendant was sentenced by agreement to a minimum sentence not to exceed seven years. The court honored this plea agreement. Therefore, defendant’s potential minimum as agreed renders him ineligible under the Motivational Boot Camp Act, 61 Pa. C.S.A. §3901 et seq.

Assuming that the seven year minimum agreement represented a cap or the maximum minimum that could be imposed by the court then we must look back to the guidelines given defendant’s offense gravity score of ten (10) and his prior record score of (4).

Applying these directives to defendant Clotter even if the court were to sentence him in the mitigated range (which would never be realistically appropriate in this court’s view) the minimum would be thirty-six (36) months thus rendering the defendant ineligible since his minimum sentence would exceed two years.

Defendant’s argument therefore, sounds only in the realm of the theoretical possibility not as a viable realistic alternative. This is posited because the defendant’s eligibility need would require a downward departure from an already unrealistic mitigated range.

Such a needed downward deviation below the mitigated range would not reflect the serious nature and gravity of this offense of conspiracy to commit aggravated assault with serious bodily injury (in this case death).

Such a needed downward departure below the mitigated range would also ignore the defendant’s near constant interaction with the criminal justice system since being a juvenile at age thirteen and more as an adult.

Furthermore, defendant was under adult state parole supervision when he committed this offense. Obviously this shows the defendant has not benefited from his previous interactions with the criminal justice system including but not limited to his juvenile counseling and supervision.

As a youth, defendant admitted he was a Crips gang member. In this case, Clotter urged shooting a firearm on a public street by Ryan Harding therefore, showing a total lack of concern for the safety and rights of the public.

Defendant has an extensive history of substance abuse and a recent as well as past history of disciplinary violations while incarcerated.

Therefore, there is no realistic way he could ever be sentenced in a mitigated range let alone need a downward departure below that in order to be boot camp eligible. Further, the sentence which he was already serving when he committed this crime precludes boot camp eligibility.

At 09 CR 2, on June 1, 2009 this defendant is listed as being sentenced from a minimum of twenty-seven (27) to fifty-four (54) months at SCI Pine Grove. Defendant was sentenced at 09 CR 331 to three (3) to six (6) months at SCI Pine Grove consecutive to 09 CR 2.

This would mean that defendant Clotter was serving a combined sentence for two separate offenses 09 CR 2 and 09 CR 331 of thirty (30) months minimum to sixty (60) months maximum. He was out on state parole supervision at the time he committed the offense herein. The balance of these underlying sentences remaining is unclear however, the original length of 09 CR 2 as imposed would preclude boot camp edibility due to the minimum exceeding two years. See 61 Pa. C.S.A. §3903.

Using the prism of individualized sentencing, this defendant could never realistically be boot camp eligible. Accordingly, this factual argument is dismissed as disingenuous given the realities of defendant’s present circumstances.


author: HIGGINS, J.,

text:
    Brice v. River Rock Creative Group, Inc.

      C.P. of Monroe County,
    No. 10372 CV 2010
    Jan. 12, 2015-
   HIGGINS, J.,

Plaintiff Julius Brice (“plaintiff) brought this action against River Rock Creative Group, Inc. (“RRCG”) and Fred Mcllvenny, both in his capacity as an officer, director, and/or shareholder of RRCG and as an individual (collectively “defendants”) to recover damages from an allegedly breached construction contract. The parties are presently before the court on defendant Fred Mcllvenny’s motion for summary judgment in his capacity as an individual. The relevant procedural history is as follows:

On October 26,2010, plaintiff issued a writ of summons upon defendants.

On June 27, 2012, plaintiff filed a complaint upon the defendants setting forth three Counts. Specifically, plaintiff alleges defendants (1) violated the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”); (2) breached a contract; and (3) breached warranties.

On July 27,2012, Mcllvenny, in his individual capacity, filed preliminary objections to plaintiffs complaint. Mcllvenny contended that he could not be sued as an individual shareholder for any alleged contract breaches by RRCG and that plaintiff had not sufficiently alleged any facts that would justify piercing the corporate veil. Def.’s Prelim. Objections ¶¶ 17, 18.

In response to Mcllvenny’s preliminary objections, plaintiff filed an amended complaint on August 10, 2012. In his amended complaint, plaintiff further alleges RRCG was an undercapitalized corporation and that RRCG “used plaintiffs deposit to stay afloat on other projects.” Pl.’s Am. Compl. ¶ 25. Additionally, plaintiff alleges in his amended complaint that RRCG failed to observe corporate formalities and that Mcllvenny intermingled corporate and personal funds. Id. at ¶ 30.

On August 29, 2012, the court dismissed Mcllvenny’s preliminary objections as moot because plaintiff filed the amended complaint.

On September 10, 2012, Mcllvenny filed an answer and new matter. In his new matter, Mcllvenny set forth nine separate defenses, including allegations that plaintiff is improperly trying to pierce the corporate veil and is improperly trying to recover from Mcllvenny individually. Def.’s Answer & New Matter ¶¶ 45-53.

On October 15, 2012, plaintiff replied to Mcllvenny’s new matter.

On October 9, 2014, Mcllvenny filed this present motion for summary judgment and a supporting brief.

On November 21, 2014, plaintiff replied to this motion and filed a supporting brief.

On December 5,2014, the court ordered this motion be removed from the argument list, to be determined on the parties’ briefs.

This matter is now ripe for determination.

DISCUSSION

Pennsylvania Rule of Civil Procedure 1035.2 provides that a party may move for summary judgment:

(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.

Pa.R.C.P. No. 1035.2; see also Shaw v. Thomas Jefferson University, 80 A.3d 540, 542 (Pa. Cmwlth. 2013) (citing Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 468 (Pa. 1979)).

Summary judgment may be granted only in cases where the right is free and clear from doubt. Musser v. Vilsmeier Auction Co., 562 A.2d 279, 280 (Pa. 1989). The court must examine the record in the light most favorable to the non-moving party and resolve all doubts concerning any genuine issue of material fact against the moving party. Davis v. Pennzoil Co., 264 A.2d 597, 601 (Pa. 1970). Additionally, the court must accept as true all well-pleaded facts contained in the non-moving party’s pleadings. Mattia v. Employers Mut. Cos., 440 A.2d 616, 617 (Pa. Super. 1982); Ritmanich v. Jonnel Enters., Inc., 280 A.2d 570, 573 (Pa. Super. 1971).

“A defendant may establish a right to summary judgment by demonstrating the plaintiffs inability to show an element essential to his claim. If the plaintiff fails to contravene the defendant’s claim with evidence raising a factual dispute as to that element, the defendant is entitled to entry of judgment as a matter of law.” Pappas v. UNUM Life Ins. Co. of Am., 856 A.2d 183, 186 (Pa. Super. 2004) (citations omitted). The non-moving party (plaintiff) may not rest upon the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. Phaff v. Gerner, 303 A.2d 826, 829 (Pa. 1973). In defending or opposing a motion for summaiy judgment, neither party to the motion may rely on inadmissible hearsay. Botkin v. Metropolitan Life Ins. Co., 907 A.2d 641, 649 (Pa. Super. 2006).

Piercing the Corporate Veil

In his motion, Mcllvenny alleges that this court should grant summary judgment in his favor under Rule 1035.2(2) because after relevant discovery, plaintiff has failed to produce evidence of facts sufficient to establish that any of plaintiff s causes of action apply to Mcllvenny individually through the theory of piercing the corporate veil. In order to decide whether summary judgment should be granted, we must first address this threshold question of piercing the corporate veil. If plaintiff has failed to hold his burden of establishing evidence of facts that would show the corporate veil should be pierced, then Mcllvenny is entitled to judgment as a matter of law.

To prevail in piercing the corporate veil, plaintiff would need to show a substantial reason to disregard the corporate entity. Specifically, plaintiff would need to point to evidence of facts that shows “failure to adhere to corporate formalities, substantial intertwining of personal and corporate affairs, undercapitalization, [or] the furthering of personal interests.” Dep’t of Envtl. Res. v. Peggs Run Coal Co., 423 A.2d 765, 768-69 (Pa. Cmwlth. 1980) (citations omitted). The Supreme Court of Pennsylvania has recognized these as “the factors to be considered in disregarding the corporate form.” See Lumax Indus., Inc. v. Aultman, 669 A.2d 893, 895 (Pa. 1995) (citing Kaites v. Dep’t Envtl. Res., 529 A.2d 1148, 1151 (Pa. Cmwlth. 1987)).

There is a general rule in Pennsylvania that the corporate form should be upheld “unless specific, unusual circumstances call for an exception.” Id. Thus, Pennsylvania courts are loathe to disregard the corporate entity absent evidence that “the corporate form ... is used to defeat public convenience, justify wrong, protect fraud or defend crime.” Good v. Holstein, 787 A.2d 426, 430 (Pa. Super. 2001).

In his amended complaint, plaintiff alleges that RRCG is undercapitalized, PL’s Am. Compl. ¶ 25, that Mcllvenny disregarded corporate formalities, id. at ¶ 30, and that Mcllvenny intermingled his private and RRCG’s corporate finances. Id.

Mcllvenny’s motion for summary judgment avers that despite discovery, plaintiff has failed to produce evidence of facts that would support any of these allegations regarding piercing the corporate veil. Mcllvenny argues that because plaintiff has failed to produce such evidence, all three of plaintiff’s counts are inapplicable to Mcllvenny in his capacity as an individual and thus he is entitled to judgment as a matter of law.

In plaintiff’s reply to motion for summary judgment, he admits that discovery and depositions have been exchanged. PL’s reply mot. summ. j. ¶ 7. The only evidence plaintiff offers in support of his position is his own deposition testimony where he stated, inter alia, that Mike McKalotz, an employee of RRCG, hinted to plaintiff during construction that RRCG was “running out of money” and “having financial problems.” Id. at ¶16; Pl.’s dep. p. 78-9.

Plaintiff’s evidence is insufficient to defeat Mcllvenny’s motion for summary judgment. Plaintiff’s testimony of Mike McKalotz’s statements is inadmissible hearsay and plaintiff may not rely on such evidence to support his argument against a motion for summary judgment. Botkin, 907 A.2d at 649. Consequently, since Mr. McKalotz’s statements are the only evidence plaintiff offers to support his allegations to pierce the corporate veil, plaintiff has not carried his burden.

Plaintiff argues in his brief that:

The nonmoving party must either identify one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion... or identify evidence in the record establishing the facts essential to the cause of action or defense in which the motion cites as not having been produced.

Pl.’s br. opp’n to mot. summ. j., p. 2 (citing Harber Philadelphia Center City Office, Ltd. v. LPCI, Ltd., 764 A.2d 1100 (Pa. Super. 2000)). While plaintiffs statement of the law is correct, the proper way for plaintiff to have presented the evidence he wishes to rely on to defeat this motion would have been to take the deposition of Mike McKalotz or offer a sufficient explanation as to why his deposition could not be taken. As stated before, plaintiff may not rely on inadmissible hearsay as evidence to defeat a motion for summary judgment in any manner. Accordingly, plaintiff has not met his burden of producing evidence of facts sufficient to defeat Mcllvenny’s motion for summary judgment.

In light of the foregoing, we take the following order.

ORDER

And now, this 13th day of January, 2015, is it hereby ordered that defendant Fred Mcllvenny’s motion for summary judgment be granted and Counts I through III of plaintiff s complaint are dismissed as to defendant Fred Mcllvenny in his capacity as an individual.


author: WILLIAMSON, J.,

text:
    Podolak v. Tobyhanna Township Board of Supervisors

      C.P. of Monroe County,
    No. 7730 CIVIL 2010

      Wieslaw T. Niemoczynski, for plaintiffs.

      Patrick M. Armstrong, for defendants.
    Nov. 7, 2014-
   WILLIAMSON, J.,

Defendants filed a motion for summary judgment on September 4, 2014, plaintiffs filed a timely response thereto, together with a cross-motion for summary judgment. Briefs were submitted and argued by the parties on defendants’ motion for summary judgment. Plaintiffs’ motion for summary judgment is scheduled for argument at a later date.

FACTUAL BACKGROUND

Plaintiffs’ amended complaint alleges that a 293 foot long access way running to their property is a public road, and should be maintained by the defendant Township. The individual defendants were the elected supervisors of the Township at filing of the amended complaint.

Plaintiff alleges that the access way is a public road referred to as “Park Road.” It runs from Norton Pryor Road, a public road, to their property. There is no record of the access way being established or dedicated as a Township or other public road. (See plaintiffs’ amended complaint). The Township maintains the access way is a private way utilized only for the benefit of the plaintiffs. It ends in a dead end at the plaintiffs’ property.

Following discovery, the following facts were set forth: plaintiffs have owned the property since 1994. Prior thereto, plaintiff George Podolak’s father owned the property. The property is known as 4121 Norton Pryor Road following a county-wide re-addressing for purposes of emergency management services.

George Podolak’s father owned the property from 1963 to 1994. Prior to that, the property was owned by people other than the Podolak family. The access way has consisted of a dirt road with some stone on it since at least the time it was first owned by George Podolak’s father in 1963. Pictures introduced at time of deposition also show the access way is wooded on either side for a portion of it. There are no street signs, stop signs or speed limit signs. The road has never been paved. No one other than the Podolak’s or their invitees have used the access way since at least 1966. All of this information was provided by the plaintiff, George Podolak, at his deposition.

George Podolak believes that others used the access way in concert with his father, between 1963 and 1966. This included others who used it for access to other properties and roads, including delivery people, such as coal, oil and mail. Mr. Podolak believes others also used it for similar purposes prior to 1963, based upon letters from local residents.

George Podolak testified he knew that a township employee would plow the access way from Norton Pryor Road to his residence between 1963 to 1966. If it was not promptly plowed, the Podolaks would call the employee to come plow. George Podolak stated the plowing ended in 1966. He provided no direct testimony or evidence the Township performed repairs, maintenance, or upkeep of the road other than plowing between 1963 and 1966. Plaintiff Jacqueline Podolak provided much of the same testimony in her deposition. Both deposition transcripts were attached to the defendants’ motion for summary judgment.

Plaintiff George Podolak believes the Township received Pennsylvania Liquid Fuel monies for the access way. Plaintiff was previously advised in 1987 that the Township considered the access way to be a private right-of-way in favor of the Podolaks, with ownership of the underlying land being with a neighboring property owner. (Weldon Cramer Company). The plaintiff also referred to the access way as his right-of-way to his property at a Township Planning Commission meeting on August 28, 1985. At that time, the plaintiff was requesting the Township to maintain the access way.

DISCUSSION

Summary judgment may be granted pursuant to Pennsylvania Rule of Civil Procedure 1035.2 where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 468-69 (Pa. 1979). Summary judgment is properly entered where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law. Pa. R.C.P. 1035(b); Cosmas v. Bloomingdales Bros., Inc., 660 A.2d 83, 85 (Pa. Super. 1995).

Summary judgment may be granted only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co., Inc., 562 A.2d 279, 280 (Pa. 1989). The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Davis v. Pennzoil Co., 264 A.2d 597 (Pa. 1970). Moreover, the burden is on the moving party to prove that no genuine issue of material fact exists. Long v. Yingling, 700 A.2d 508, 512 (Pa. Super. 1997). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson, 412 A.2d at 469. In response, the non-moving party may not rest upon the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. Phaff v. Gerner, 303 A.2d 826 (Pa. 1973). The court may also accept as true all well-pled facts contained in the non-moving party’s pleadings. Mattia v. Employment Mut. Cos., 440 A.2d 616 (Pa. Super. 1982); Ritmanich v. Jonnel Enters, Inc., 280 A.2d 570 (Pa. Super. 1971). A general denial is unacceptable and deemed an admission where it is clear that the non-moving party has adequate knowledge and that the means of information are within the control of the non-moving party. Elia v. Olszewski, 84 A.2d 1889 (Pa. 1951).

The plaintiffs have not alleged that the access way was laid out and established in an approved plan as a Township road, or that it was ever dedicated as a public road. The only allegation to support the plaintiffs’ claim, is that 53 Pa. C.S.A. §67307 of the Second Class Township Code regarding public use and Township maintenance for 21 years applies to this case.

Under 53 Pa. C.S.A. §67307, a road is a public road if it has been used for public travel and maintained and kept in repair by the Township for at least 21 years. See 53 Pa. C.S.A. 67307. This was further confirmed by the Commonwealth Court in Warner-Vaught v. Fawn Township, 958 A.2d 1104) (Pa. Cmwlth. 2008) which stated in part:

“... The existence of a public road can also be established under Section 2307 of the Township Code ... which provides:
Every road which has been used for public travel and maintained and kept in repair by the township for a period of at least twenty-one years is a public road having a right-of-way of thirty-three feet even though there is no public record of the laying out or dedication for public use of the road...”

Therefore, the plaintiffs need to establish the access way was used by the public for travel and maintained and kept in repair by the Township for at least 21 years. There was no evidence of any other way the access way could be considered a public road. The plaintiffs maintain there is a factual dispute with regard to the prior public use and maintenance by the Township. The defendants contend there is no factual dispute.

Plaintiffs have testified that to their knowledge, some employee of the Township plowed the access way between 1963 and 1966. Their testimony also showed there may have been some limited use of the access way by other members of the public between 1963 and 1966. However, the plaintiffs stated there was no maintenance, repair or upkeep by the Township at any time after 1966. There also was no use by the public after 1966 according to the plaintiffs. (This coincided with the completion of the State Route 940 improvements). Any delivery person using it after 1966 was for the sole benefit of the Plaintiffs per their own testimony. Invitees to the property is not public use. Therefore, the 21 year period of public use and maintenance/repairs by the Township had to have occurred prior to 1966.

The plaintiffs’ evidence of the use was limited to the snow plowing of the Township employee, between 1963 and 1966, correspondence from PennDOT concerning liquid fuel funds, and letters and/or statements of others as reported by the plaintiffs in their depositions and discovery. This evidence does not form the basis for recovery by the plaintiffs.

First, plowing for a three year period by the Township does not establish the required time period necessary under the statute. We also note this testimony is solely that of the plaintiffs, with no corroboration from third parties or other evidence. However, even accepting it as true, it does not establish the necessary 21 year period for maintenance and repairs by the Township. Therefore, the plowing fails to meet the statute in order to qualify the access way as a public road.

Second, the alleged correspondence of PennDOT, in addition to being hearsay, does not specifically identify the access way in question as the recipient, or the Township road in question that qualified for liquid fuel funds. The funds were for a “T-626.” Plaintiffs assert the access way, referred to as Park Road, was a part of T-626, and that the Township received liquid fuel monies for the portion of the access way between 1933 and 1966 (see plaintiffs’ brief in response to the motion for summary judgment and documents attached thereto). Even disregarding any potential hearsay claims as to the documents, there is no evidence in support of plaintiffs’ claim that the access way was actually a portion of T-626. If it was, it would have been dedicated as such, but no such records were produced, and the plaintiffs admit the access way was never dedicated a public road.

Furthermore, the attachment S J.-5 attached to plaintiffs ’ brief, being a PennDOT letter dated July 17, 2007, states PennDOT has no records of T-626 for purposes of liquid fuel until March 2, 1959. Therefore, even if we were to assume liquid fuel monies were paid to the Township for T-626, and the access way was a part of T-626, the monies were only allocated for seven (7) years (1959-1966) by plaintiffs’ own claims. Therefore, receipt of liquid fuel funds could not meet the 21 year requirement for maintenance and upkeep by the Township, even assuming the receipt of the funds constituted the same.

Even if the Township received liquid fuel monies for the access way for 21 years, as the defendants pointed out in their brief, it is insufficient to establish public use and Township maintenance under Section 67307. The word “expenditures” or “monies received” are not included in the statute. The prior version of 53 Pa. C.S.A. §67307 referenced the “expenditure” of funds, but the current statute does not. Therefore, even assuming liquid fuel monies were paid to the Township for the access way for a period of 21 years as asserted, it is not proof of maintenance and repairs by the Township. Finally, there is no evidence or claims that the Township ever spent liquid fuel monies on the access way to be considered as an expenditure of funds under the old statute.

We also find that there is no evidence that the public used the access way for a period of 21 years. Plaintiffs stated no member of the public has used it since 1966. The plaintiffs only had personal knowledge of use by the public for three years prior thereto (1963-1966). The rest of the testimony and evidence the plaintiffs assert to support a 21 year use is from their conversation or receipt of letters from others. Such evidence is hearsay and cannot be used to defeat a motion for summary judgment. See Turner v. Valley Housing Dev. Corp., 2009 Pa. Super. 72, 972 A.2d 531 (2009).

Furthermore, the testimony of George Podolak, as to the information he received from others, at most, showed a use by others having business with those on the access way. This included deliveries and access of other property owners to their properties. There was no evidence of use of the access way for public use even admitting the Plaintiffs’ allegation as true.

As the requirements of 53 Pa. C.S.A. §67307 are mandatory, there has been insufficient testimony to support a cause of action as alleged. The facts set forth in discovery, show no road dedication and no public use and no Township maintenance and repairs for a period of 21 years. As a matter of law, the plaintiffs cannot prove the facts alleged and there are no material and admissible facts in dispute. Therefore, the defendants’ motion for summary judgment will be granted and the plaintiffs’ motion for summary judgment will be dismissed as moot.

ORDER

And now, this 7th day of November, 2014, the defendants’ motion for summary judgment is granted.

The plaintiffs’ motion for summary judgment is dismissed as moot.

This case is stricken from the December 2014 argument list.

      . We note plaintiffs’ own Exhibits seem in conflict with each other, being SJ. — 5 (7/17/07 PennDOT letter) and SJ. — 1 (7/18/95 PennDOT letter). In reviewing this in the light most favorable to the non-moving party (plaintiffs) there still is no evidence of liquid fuel monies for a 21 year period for the access way.