author: COX, J.,

text:
    Edel v. Callen

      John J. DeCaro, for plaintiff

      Anthony S. Piatek, for defendant
    MAY 31, 2013
   COX, J.,

— Before the court for disposition are the preliminary objections To plaintiff’s amended complaint filed on behalf of the defendant Ted Callen, individually and doing business as Two Fat Guys And An Oven, which argue the following:

I. The plaintiff’s amended complaint does not conform to Pa.R.C.P. No. 1024(b) as it asserts inconsistent causes of action in counts I, II, III and IV without attaching the proper verification;
II. Count II of the plaintiff’s amended complaint lacks specificity and is legally insufficient as the plaintiff has failed to specify the alleged breach by the defendant or any type of actual damages;
III. Count III of the plaintiff’s amended complaint is legally insufficient as it fails to set forth that the defendant made a material misrepresentation;
IV. Count IV of the plaintiff’s amended complaint is legally insufficient as the plaintiff has failed to aver that the defendant deliberately deprived the plaintiff of his personal property because that claim was based upon an alleged claim for withholding future proceeds from the purported partnership; and
V. Count V of the plaintiff’s amended complaint lacks specificity and is legally insufficient as it asserts a claim for unjust enrichment but fails to aver what effort, time, skills and experience the plaintiff performed for the benefit of the defendant.

The facts as averred in the plaintiff’s amended complaint are as follows: The defendant Ted Callen, individually and doing business as Two Fat Guys And An Oven, and the plaintiff Phillip Edel entered into an oral agreement to open and operate a bakery known as Two Fat Guys And An Oven. The alleged oral agreement set forth that the plaintiff would work in and manage the bakery while the defendant would provide the initial capital. The plaintiff also asserts that the agreement provided that he and the defendant would split the proceeds of the partnership after the defendant was compensated for his initial investment. The plaintiff and the defendant opened their bakery at 811 Moravia Street, New Castle, Lawrence County, Pennsylvania in May of 2011. However, the landlord increased the rent at that facility in July of 2011 and they relocated to another facility at 839 Moravia Street, New Castle, Lawrence County, Pennsylvania. They opened for business as Two Fat Guys And An Oven on October 1, 2011. The plaintiff worked for the bakery approximately 587 and one half hours from July 31, 2011, through October 7, 2011. According to the plaintiff’s amended complaint, on October 8, 2011, the defendant prevented the plaintiff from entering the bakery and sharing the proceeds of the business. After that date, the defendant has refused to allow the plaintiff to access partnership property or participate in partnership affairs. Moreover, the plaintiff alleges that the defendant refuses to pay the plaintiff’s share of the partnership proceeds.

As a result, the plaintiff filed suit on August 22, 2012, asserting claims for dissolution of partnership, breach of partnership agreement, fraud, conversion, breach of oral employment agreement and unjust enrichment. On September 11, 2012, the defendant filed preliminary objections. In response, the plaintiff filed an amended complaint. The defendant has now filed preliminary objections to the amended complaint.

First, the defendant claims the plaintiff’s amended complaint does not conform to Pa.R.C.P. No. 1024(b) as it asserts inconsistent causes of action in counts I, II, III and V without attaching the proper verification.

Pa.R.C.P. No. 1024(a) and (b) state:

(a) Every pleading containing an averment of fact not appearing of record in the action or containing a denial of fact shall state that the averment or denial is true upon the signer’s personal knowledge or information and belief and shall be verified. The signer need not aver the source of the information or expectation of ability to prove the averment or denial at the trial. A pleading may be verified upon personal knowledge as to a part and upon information and belief as to the remainder.
(b) If a pleading contains averments which are inconsistent in fact, the verification shall state that the signer has been unable after reasonable investigation to ascertain which of the inconsistent averments, specifying them, are true but that the signer has knowledge or information sufficient to form a belief that one of them is true...

It appears that a party seeking to recover the quantum meruit value of services or products rendered to another party and to recover for breach of contract must attach a verification to the complaint that conforms with Pa.R.C.P. No. 1024(b). See La Rosee v. La Rosee, 86 Pa. D. & C. 245 (Pa. Com. PL Bucks 1954); Bowers v. Bon Ton Foods, Inc., 58 Pa. D. & C. 2d 372 (Pa. Com. Pl. York 1972). In La Rosee, the court held that a claim for quantum meruit for the cost of supplies utilized in the construction of a house and labor and a claim for breach of contract were inconsistent requiring the plaintiff to verify the complaint using the form prescribed in Pa.R.C.P. No. 1024(b). La Rosee, 86 Pa. D. & C. at 247. “A cause of action for unjust enrichment may arise only when a transaction of the parties not otherwise governed by an express contract confers a benefit on the defendant to the plaintiff’s detriment without any corresponding exchange of value.” Villoresi v. Femminella, 856 A.2d 78, 84 (Pa. Super. 2004) (citing Temple Univ. Hosp. v. Healthcare Mgmt., 832 A.2d 501, 507 (Pa. Super. 2003); Mitchell v. Moore, 729 A.2d 1200, 1203-1204 (Pa. Super. 1999)). In addition, it has been determined that claims of unjust enrichment and breach of contract are inconsistent for the purposes of alternative pleading and must be pleaded in separate counts. Lugo v. Farmers Pride, Inc., 967 A.2d 963, 970 (Pa. Super. 2009).

In the current matter, the plaintiff has asserted claims for dissolution of partnership, breach Of partnership agreement, and fraud in counts I through III. However, in count V, the plaintiff pleaded a claim for unj ust enrichment. It is apparent that counts I through III are based upon an express agreement between the plaintiff and the defendant. Conversely, count V is based upon the value of services he provided to the business, not on any alleged breach of contract. Hence, the claim for unjust enrichment is similar to a claim in quantum meruit as the plaintiff is attempting to recover for the fair market value of his services. As such, count V is inconsistent with counts I through III and the plaintiff is required to utilize the verification set forth in Pa.R.C.P. No. 1024(b). Therefore, the defendant’s first preliminary objection is sustained and the plaintiff is granted leave to amend his amended complaint to include a verification in accordance with Pa.R.C.P. No. 1024(b).

Next, the defendant contends that count II of the plaintiff’s amended complaint lacks specificity and is legally insufficient as the plaintiff has failed to specify the alleged breach by the defendant or any type of actual damages.

“A preliminary objection in the nature of a demurrer is properly granted where the contested pleading is legally insufficient.” Cooper v. Frankford Health Care System, Inc., 960 A.2d 134, 143 (Pa. Super. 2008) (citing Cardenas v. Schober, 783 A.2d 317, 321 (Pa. Super. 2001)). A demurrer must be resolved based solely on the pleadings, no testimony or evidence outside of the complaint may be considered to dispose of the legal issue presented. Id. “All material facts set forth in the pleading and all inferences reasonably deducible therefrom must be admitted as true.” Hess v. Fox Rothschild, LLP, 925 A.2d 798, 805 (Pa. Super. 2007) (citing Cardenas, supra.). A demurrer will only be sustained in cases where the complaint fails to set forth a valid cause of action. Lerner v. Lerner, 954 A.2d 1229, 1235 (Pa. Super. 2008) (citing McArdle v. Tronetti, 426 Pa. Super. 607, 627 A.2d 1219, 1221 (1993)). If a doubt exists regarding whether a demurrer should be sustained, the doubt must be resolved in favor of overruling the demurrer. R.W. v. Manzek, 585 Pa. 335, 351, 888 A.2d 740, 749 (2005) (citations omitted). Fact-based defenses are irrelevant when ruling on a preliminary objection in the nature of a demurrer. Werner v. Plater-Zyberk, 799 A.2d 776, 783 (Pa. Super. 2002) (citing Orner v. Mallick, 515 Pa. 132, 135, 527 A.2d 521, 523 (1987)). “A ‘speaking demurrer’ is defined as ‘one which, in order to sustain itself, requires the aid of a fact not appearing on the face of the pleading objected, or in other words, which alleges or assumes the existence of a fact not already pleaded, and which constitutes the ground of objection and is condemned both by the common law and the code system of the pleading.’” Regal Indus. Corp. v. Crum and Forster, Inc., 890 A.2d 395, 398 (Pa. Super. 2005) (quoting Black’s Law Dictionary 299 (6th ed. 1991)). The court is not permitted to consider a speaking demurrer in rendering its decision on preliminary objections. Id.

The specificity of a pleading is governed by Pa.R.C.P. No. 1019, which states “(a) The material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Pennsylvania is a fact-pleading jurisdiction, which requires the plaintiff to provide the defendant with notice of what the plaintiff’s claim is and the grounds for the claim. Unified Sportsmen of Pennsylvania v. Pennsylvania Game Com’n (PGC), 950 A.2d 1120, 1134 (Pa. Cmwlth. 2008) (quoting Sevin v. Kelshaw, 417 Pa. Super. 1, 611 A.2d 1232, 1235 (1992)). Additionally, the plaintiff must summarize the facts essential to support the claims. Id. “The rule requires a plaintiff to plead all the facts that he must prove in order to achieve recovery on the alleged cause of action. The pleading must be sufficiently specific so that the defending party will know how to prepare his defense.” Commonwealth ex rel. Pappert v. TAP Pharmaceuticals Products, Inc., 868 A.2d 624, 635 (Pa. Cmwlth. 2005) (citing Department of Transportation v. Shipley Humble Oil Co., 29 Pa. Cmwlth. 171 370 A.2d 438 (1977)). The purpose behind the rules of pleading is to enable parties to ascertain, by utilizing their own professional discretion, the claims and defenses that are asserted in the case. Krajsa v. Keypunch, Inc., 424 Pa. Super. 230, 236, 622 A.2d 355, 357 (1993). “The pleadings must adequately explain the nature of the claim to the opposing party so as to permit him to prepare a defense, and they must be sufficient to convince the court that the averments are not merely subterfuge.” In re Estate of Schofield, 505 Pa. 95, 477 A.2d 473 (1984) (citing Sokoloff v. Strick, 404 Pa. 343, 172 A.2d 302 (1961); Hornsby v. Lohmeyer, 364 Pa. 271, 72 A.2d 294 (1950); Rice v. Braden, 243 Pa. 141, 89 A. 877 (1914)). “A more specific complaint will not be required where the details requested are evidentiary in nature.” Hock v. L.B. Smith, Inc., 69 Pa. D. & C. 2d 420, 423 (Pa. Com. Pl. Columbia 1974) (citing General Acceptance Corp. v. Wilson, 40 Northumb. L.N. 54).

“A cause of action for breach of contract must be established by pleading (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages.” CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. 1999) (citing Gen. State Auth. v. Coleman Cable & Wire Co., 27 Pa. Cmwlth. 385, 365 A.2d 1347, 1349 (1976)). A complaint must contain specific acts or omissions that establish the alleged breach of contract. General State Authority v. Sutter Corp., 44 Pa.Cmwlth. 156, 161-162, 403 A.2d 1022, 1025 (1979).

The plaintiff avers that the parties entered into an oral partnership agreement in which the defendant would supply the initial capital and the plaintiff would provide his skills and services. The plaintiff also stated that the parties were to share equally in the proceeds of the business after the defendant was reimbursed for his initial investment. However, it is alleged that the defendant did not permit the plaintiff to participate in partnership affairs after October 8, 2011, and refused to pay over to the plaintiff his share of the partnership proceeds. The plaintiff also explains that the amount of damages he suffered is not currently ascertainable as the defendant has possession of all information regarding the amount of the partnership proceeds. It appears as though the plaintiff has provided the defendant with sufficient facts to prepare a defense as he has stated the terms of the oral contract and the manner in which he performed his responsibilities. Moreover, the plaintiff has explained that the defendant breached the contract by refusing to permit the plaintiff from participating in the business activities and for failing to pay the plaintiff his share of the partnership proceeds. The only aspect of the plaintiff’s amended complaint that may be lacking is he has not provided a specific amount of damages he is seeking; but, that is attributable to the defendant having sole access to the financial records of the partnership and the plaintiff will only receive that information through discovery. Therefore, the defendant’s second preliminary objection is overruled.

Third, the defendant argues that count III of the plaintiff’s amended complaint lacks specificity as the plaintiff failed to adequately aver facts establishing that the defendant made a material misrepresentation.

The plaintiff is required to aver the elements of fraud, which are as follows: “(1) misrepresentation of a material fact; (2) scienter; (3) intention by the declarant to induce action; (4) justifiable reliance by the party defrauded upon the misrepresentation; and (5) damage to the party defrauded as a proximate result.” Colaizzi v. Beck, 895 A.2d 36, 39 (Pa. Super. 2006) (citing Rizzo v. Michener, 401 Pa. Super. 47, 61, 584 A.2d 973, 980 (1990)). Moreover, Pa.R.C.P. No. 1019(b) mandates that fraud must be averred with particularity. Although it is impossible to establish precise standards as to the degree of particularity, the courts have established that the following two conditions must be met: (1) “the pleadings must adequately explain the nature of the claim to the opposing party so as to permit him to prepare a defense” and (2) “they must be sufficient to convince the court that the averments are not mere subterfuge.” Youndt v. First National Bank of Port Allegany, 868 A.2d 539, 544-545 (Pa. Super. 2005). The plaintiff must, at the very least, set forth the exact statements or acts which constitute the fraudulent misrepresentations. Id., 868 A.2d at 545 (citing McGinn v. Valloti, 363 Pa. Super. 88, 525 A.2d 732, 734 (1987)). Pa.R.C.P. No. 1019(b) prohibits a plaintiff from merely pleading legal conclusions and requires that facts supporting the claim of fraud are alleged. Borelli v. Barthel, 205 Pa. Super. 442, 448, 211 A.2d 11, 14 (1965). “Averments of fraud are meaningless epithets unless sufficient facts are set forth which will permit an inference that the claim is not without foundation nor offered simply to harass the opposing party and to delay the pleader’s own obligations.” Bata v. Central-Penn Nat. Bank of Philadelphia, 423 Pa. 373, 379, 224 A.2d 174, 179 (1966). Allegations of fraud must be more than mere legal conclusions and must convince the court that the averments are not subterfuge. Bash v. Bell Telephone Co. of Pennsylvania, 411 Pa. Super. 347, 359, 601 A.2d 825, 831 (1992) (citations omitted) (superseded on other grounds). Pa.R.C.P. No. 1019(b) is not overly burdensome and simply requires that the plaintiff pleads facts sufficient to permit the defendant to prepare his defense. Foster v. Peat Marwick Main & Co., 138 Pa. Cmwlth. 147,587 A.2d 382 (1991) (citing Commonwealth v. National Apartment Leasing Company, 108 Pa. Cmwtlh. 300, 529 A.2d 1157 (1987); McGinn v. Valloti, 363 Pa. Super. 88, 525 A.2d 732 (1987)).

The plaintiff has averred in his amended complaint that the defendant made an oral representation to the plaintiff that he would be entitled to share equally in the partnership proceeds, if he expended his time, effort, experience and skill to the partnership’s business. The plaintiff states that he relied upon that representation and expended his time, effort, experience and skill in furtherance of the business. He also explained the defendant knew that his promises to the plaintiff were false. The plaintiff averred that as a result of those misrepresentations, he has incurred pecuniary damages. The plaintiff has set forth sufficient facts to establish each element of fraud and has done so with the appropriate level of specificity. The facts averred in the amended complaint set forth that the defendant made a material misrepresentation when he agreed to provide the plaintiff with an equal share of the partnership proceeds in return for the defendant’s time, effort, experience and skills. The scienter requirement and the defendant’s intention to induce action by the plaintiff was also pleaded by the plaintiff by stating that the defendant knew the falsity of that offer, yet permitted the plaintiff to expend his efforts towards furthering the partnership business. Moreover, the amended complaint explained the plaintiff justifiably relied upon those representations and performed his portion of the agreement. As a result, the plaintiff asserts that he suffered pecuniary damages. Therefore, the defendant’s Third preliminary objections is overruled.

In his fourth preliminary objection, the defendant contends that count IV of the plaintiff’s amended complaint is legally insufficient as the plaintiff has failed to aver that the defendant deliberately deprived the plaintiff of his personal property because that claim was based upon an alleged claim for withholding future proceeds from the purported partnership.

“A conversion is the deprivation of another’s right of property in, use or possession of, a chattel, or other interference therewith, without the owner’s consent and without lawful justification.” Gottesfeld v. Mechanics & Traders Ins. Co., 196 Pa. Super. 109, 115, 173 A.2d 763, 766 (1961) (citing Pearl Assurance Company, Ltd. v. National Insurance Agency, Inc., 151 Pa. Super. 146, 30 A.2d 333 (1943)). The plaintiff must aver that he or she has a possessory right to the chattel, which includes being the possessor or maintaining the right to immediate or future possession. Spickler v. Lombardo, 3 Pa. D. & C. 3d 591, 601 (Pa. Com. Pl. 1977). Moreover, the defendant must exercise dominion or control over the chattel, which includes: “(a) acquiring possession of the goods; (b) transferring the goods in a manner which deprives the owner of control; (c) withholding possession from one who had the right to it, and (d) damaging or misusing the chattel.” Id. That exercise of dominion or control must result in serious deprivation of the plaintiff’s possessory right to an extent that requires the defendant to pay the full value of the chattel. Id.

It is apparent that money can be the subject property in a conversion action. Pioneer Commercial Funding Corp. v. American Financial Mortgage Corp., 797 A.2d 269,280 (Pa. Super. 2002). In that case, the plaintiff was entitled to proceeds from mortgage notes resulting from a security interest in notes and mortgages obtained by a mortgage banker, who typically endorsed the notes and delivered them to the plaintiff. The mortgage banker entered into bankruptcy and was purchased by a company that was a mortgage originator. The mortgage banker, the mortgage originator and the plaintiff then entered into a loan and security agreement naming the mortgage originator as the borrower. Under the agreement, the plaintiff would continue to fund the mortgage banker’s loans and those notes would be sent from another bank to the mortgage originator under a bailee letter, who would send them along to yet another financial institution, bank one. That financial institution would then wire funds directly to the plaintiff’s account. However, bank one began wiring those funds to the mortgage originator, instead of the plaintiff. As a result, the plaintiff filed a claim for conversion and the jury returned a verdict in its favor. Bank One filed post-trial motions seeking judgment notwithstanding the verdict (hereinafter “JNOV”) and a new trial or remitter. The trial court denied the motion for JNOV, but granted remitter. Bank One filed a timely appeal claiming that the evidence was insufficient to support the plaintiff’s claim for conversion, amongst various other issues. The Pioneer court held that the plaintiff provided sufficient evidence to support a jury verdict for the claim of conversion against Bank One as the plaintiff was able to establish that it was entitled to the fund proceeds regarding the mortgage notes that were incorrectly wired to mortgage originator. Id.

In the case sub judice, the plaintiff averred that he provided his time, effort, experience and skill to the partnership as he agreed to do in exchange for the right to share in the partnership proceeds. However, the defendant did not permit the plaintiff to share in those proceeds. The amended complaint alleges that the plaintiff provided the necessary work required to fulfill his obligations pursuant to the oral partnership agreement, but was denied his share of the partnership proceeds. This situation is similar to the Pioneer case where the plaintiff was properly awarded a jury verdict for its claim of conversion against Bank One because it was entitled to the funds that were wired to the mortgage originator as the plaintiff performed its required duties pursuant to the agreement. In the current case, the plaintiff is arguing that he has a right to half of the partnership proceeds and was denied access to the same by the plaintiff. The defendant has exercised dominion or control over that property by denying the plaintiff access to the proceeds. As such, the amended complaint sets forth a valid claim for conversion. Therefore, the defendant’s fourth preliminary objection is denied.

The defendant’s fifth preliminary objection asserts count V of the plaintiff’s amended complaint lacks specificity and is legally insufficient as it asserts a claim for unjust enrichment but fails to aver what effort, time, skills and experience the plaintiff performed for the benefit of the defendant.

The essential elements of an unjust enrichment claim are “benefits conferred on defendant by plaintiff, appreciation of such benefits by defendant, and acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value.” Styer v. Hugo, 422 Pa. Super. 262, 267, 619 A.2d 347, 350 (1993) (quoting Wolf v. Wolf 356 Pa. Super. 365, 514 A.2d 901 (1986)). The focus of that inquiry is on whether the defendant has been unjustly enriched, outside of the intention of the parties. Id., 422 Pa. Super, at 268, 619 A.2d at 350 (citations omitted). “The doctrine does not apply simply because the defendant may have benefited as a result of the actions of the plaintiff.” Id. (citing Meehan v. Cheltenham Tp., 410 Pa. 446, 189 A.2d 593 (1963)). The defendant does not have to intentionally accept the benefit; the focus is on the question of whether the defendant has been unjustly enriched. Com. ex. Pappert v. TAP Pharmaceutical Products, Inc., 885 A.2d 1127, 1137 (Pa. Cmwlth. 2005) (Torchia v. Torchia, 346 Pa. Super. 229, 499 A.2d 581 (1985)). “[T]he plaintiff bears the burden of establishing either that the defendant wrongfully secured the benefit or passively received a benefit that it would be unconscionable to retain.” Id. “Whether the doctrine applies depends on the unique factual circumstances of each case.” Stoekinger v. Presidential Financial Corp. of Delaware Valley, 948 A.2d 828, 833 (Pa. Super. 2008).

In the current case, the plaintiff has attached two exhibits to the amended complaint chronicling the services he provided to the defendant. Exhibit A is a list of dates beginning with July 31, 2011 and ending with October 7, 2011, which stated all of the hours he worked at the bakery each day. Also, exhibit B is a narrative explaining all of the tasks performed by the plaintiff for the months of August, September and October of 2011. That exhibit was very detailed and set forth all of the duties performed by the plaintiff, which included cleaning equipment purchased on the internet by the partnership, attending auctions, driving to various locations to purchase additional equipment, repairing the building utilized for the bakery, baking and cooking. Those documents provide sufficient details to allow the defendant to commence with preparation of a defense. Any additional details sought by the defendant can be recovered during discovery. Therefore, count V of the amended complaint provides sufficient facts to adequately aver a claim for unjust enrichment and the defendant’s fifth preliminary objection is overruled.

For the reasons set forth in this opinion, the defendant’s preliminary objections are sustained in part and overruled in part. The defendant’s first preliminary objection claiming a violation of Pa.R.C.P. No. 1024(b) is sustained; however, the defendant’s second, third, fourth and fifth preliminary objections asserting violations of Pa.R.C.P. No. 1028 are overruled. The plaintiff is granted leave to amend his amended complaint in accordance with this opinion.

ORDER OF COURT

Now this, day of May 31, 2013, this case being before the court on April 29, 2013, for oral argument on the preliminary objections to plaintiff’s amended complaint filed by the defendant, with both parties appearing through their counsel, the plaintiff Phillip Edel, represented through counsel, John J. DeCaro, Jr., Esquire and the defendant Ted Callen, individually and d/b/a Two Fat Guys And An Oven, represented through counsel, Anthony S. Piatek, Esquire and after a consideration of the arguments and briefs presented and submitted by counsel and a thorough review of the applicable file, the court enters the following order and it is hereby ordered, adjudgeda nd decreed as follows:

1. In accordance with the attached opinion, the first preliminary objection in the nature of an improper verification is hereby sustained.

2. In accordance with the attached opinion, the second, third, fourth and fifth preliminary objections are hereby overruled.

3. Plaintiff shall have twenty (20) days after receipt of this order of court to file an amended verification.

4. Upon filing the amended verification, defendant shall have twenty (20) days to file an answer to the amended complaint.

5. The prothonotary is directed to serve a copy of this order of court upon counsel of record, John J. DeCaro, Jr., Esquire and Anthony S. Piatek, Esquire.


source: Caselaw Access Project

author: WETTICK, J.,

license: Public Domain

text:
    Palisades Manor Estates v. Chapman

      Devon C. O ’Leary, for plaintiff

      Daniel G. Vitek, for defendant
    June 4, 2013
   WETTICK, J.,

— Plaintiff’s motion for reconsideration of rental payments is the subject of this opinion and order of court.

Defendant entered into a lease agreement for subsidized programs (exhibit Ato plaintiff’s complaint) with plaintiff beginning September 1,2010 for property located at 1000 Palisades Manor Apartments, Unit 1104, Rankin, PA. Due to her limited financial means, defendant qualifies for reduced rent supplemented by the Department of Housing and Urban Development (“HUD”).

When defendant first moved into the residence, her rent was $133 per month with HUD paying an additional $748 per month for a total market rent of $881. Her rent was most recently calculated to be $141 with HUD paying the balance of $740 per month.

The agreement provides for an initial term beginning 9/1/2010 and ending 8/31/2011. The agreement provides that after the initial term ends, the agreement will continue for successive terms of one year each unless terminated as permitted by ¶23 of the agreement.

Plaintiff instituted proceedings before a magisterial district judge for possession and damages, including back rent. On February 25, 2013, a judgment was entered in plaintiff’s favor granting possession and rent in arrears of $794. The notice of judgment stated that the amount of rent per month, as established by the magisterial district judge, is $141. The judgment was entered on March 6, 2013.

Defendant appealed. The notice of rental payment issued by the department of court records stated that defendant’s monthly rental payment, in order for the appeal to operate as a supersedeas, is $141.

In its complaint filed in this court, plaintiff seeks possession based on factual allegations described in a notice to quit and the complaint which constitute grounds for eviction under ¶23(0) of the agreement.

In February 2013, plaintiff asked HUD to stop paying the subsidy. In response to this request, HUD’s payments ceased as of the end of February.

Through its motion for reconsideration, plaintiff requests a court order increasing the monthly payments that defendant must make, in order for her appeal to operate as a supersedeas, to the full amount of the rental contract of $881. Plaintiff’s proposed order provides for defendant to be evicted for nonpayment of the monthly rent of $881 if the full amount, based on a monthly payment of $881 beginning in March 2013, is not paid within ten days.

It is plaintiff’s position that it can terminate the lease without proving in a court proceeding that it had grounds for eviction. Defendant, on the other hand, contends that a tenant of subsidized housing may not be evicted without a court hearing establishing grounds for the eviction.

A tenant eligible for subsidized housing is not in a position to pay the market rent. Thus, if a landlord can unilaterally increase the monthly rent which the tenant must pay by rejecting the HUD subsidy, this would result in evictions without a hearing contrary to both the requirements of HUD and Pennsylvania state law, which allow a tenant to remain in the rental premises while the proceedings are pending as long as the tenant pays his or her share of the monthly rent. If a landlord choses not to accept payments for the monthly rent from HUD, it cannot contend that the tenant has failed to keep his or her end of the bargain. The tenant relies on 24 C.F.R. 247.6(a) which states that the “landlord shall not evict any tenant except by judicial action pursuant to State or local law and in accordance with the requirements of this subpart.”

In the present case, the landlord seeks to evict without a ruling that it has grounds for eviction by the device of cancelling the HUD subsidy. In other words, plaintiff seeks to evict defendant without pursuing the judicial process contrary to 24 C.F.R. 247.6(a).

Furthermore, under Pa.R.C.P.M.D.J. No. 1008C(3) (b)(iii), when the tenant is a participant in the Section 8 program, a tenant shall pay the tenant’s share of the rent in order for the appeal to operate as a supersedeas. Also, the Section 8 tenant’s supersedeas affidavit, Rule 1008C(2), provides for the tenant to set forth the amount of monthly rent the tenant personally pays to the landlord and to certify that the tenant is “a participant in the Section 8 program and... not subject to a final (i.e., non-appealable) decision of a court or government agency which terminates [the tenant’s] right to receive Section 8 assistance based on [the tenant’s] failure to comply with program rules.”

Under these provisions, for the supersedeas to apply, the tenant is required to pay only the amount of monthly rent that he or she personally pays to the landlord where, as in this case, there is no decision of a court or government agency terminating the right to receive Section 8 assistance.

Finally, the lease permits the landlord to implement changes in the tenant’s rent or tenant assistance payment only under limited circumstances, none of which is present in this case.

For these reasons, I enter the following order of court:

ORDER OF COURT

On this 4th day of June, 2013, it is hereby ordered that plaintiff’s motion for reconsideration of rental payments is denied.

      . Although plaintiff contends termination may be automatic pursuant to ¶2 of the agreement, ¶2 subjects termination to ¶23.


author: NEALON, J.,

text:
    Haan v. Wells

      John J. Brier and Brigid E. Carey, for plaintiffs

      J. Brian Foley, for defendant
    June 19, 2013
   NEALON, J.,

— Plaintiffs D. Scott Haan and Patrice Amity Haan (“the Haans”) instituted this ejectment and trespass action against defendants John A. Wells, John A. Wells, Jr. and William Wells (“the Wells”) on November 9,2011, seeking to eject them from a parcel of land situated inNewton Township, Lackawanna County, and to enjoin any further unprivileged entry upon that land. (Docket entry no. 1). On February 2,2012, the Wells filed an answer to the complaint, and under the heading “new matter” asserted that the Haans had improperly “erected a gate barring passage over a well established easement” to their land, as per the attached survey prepared by John Michael Hennemuth. (Docket entry no. 3 at ¶¶13-20, exhibit 1). The Haans filed a timely “reply to new matter” on February 21, 2012. (Id. at no. 4).

On November 15,2012, the Haans filed a certificate of readiness, and a status conference was conducted before the undersigned on December 19,2012. (Id. at no. 10). An order was issued on that date scheduling this matter for a non-jury trial beginning on January 7, 2013. (Id. at no. 11). During the first day of trial, testimony was received from Daniel L. Penetar, Jr., Esquire, Holly Norton, George Dunda, D. Scott Haan, John A. Wells, Jr., and William Wells. At the request of the Wells, their registered surveyor, John M. Hennemuth, was afforded thirty (30) days within which to produce a supplemental report in response to a revised survey that was prepared by the Haans’ surveyor, George J. Dunda, in December 2012. (Id. at no. 13).

After Mr. Hennemuth prepared and distributed his supplemental report, the bench trial resumed on February 27, 2013, at which time testimony was received from Mr. Hennemuth, Susan Wells and D. Scott Haan (rebuttal). The parties requested, and were granted, leave of court to file proposed findings of fact and conclusions of law within thirty days of the filing of the trial transcript, which was later filed on March 28,2013. (Id. at nos. 14-15). The parties subsequently requested and were granted a thirty day extension of time until May 27, 2013, to file their proposed findings. (Id. at no. 16). The parties have now submitted their proposed findings of fact and conclusions of law. (Id. at nos. 17-18). The factual findings set forth below are based upon the credible and relevant evidence introduced during the non-jury proceedings on January 7, 2013, and February 27,2013.

I. FINDINGS OF FACT

The Haans and the Wells own rural properties in Newton Township which derive from the James Davis Warrant and Stephen King Warrant that established warrant lines in that region more than .200 years ago. (Transcript of proceedings (“T.P.”) on 1/7/13 at pp. 98-99). Due to that area’s rugged topography and absence of suitable permanent markers at that time, early surveys for those tracts and warrant lines often lacked precision. (T.P. 2/27/13 at p. 113). As a consequence, the original surveys for the land in question overlap and have created an area of “interference” which, in turn, has given rise to the instant dispute. (Id. atpp. 26-27,34,37-38,41-44,51).

The pertinent chain of title for the Haans’ 71 acres and 55 perches of property (the “Catherine Evans tract”) is as follows: deed dated October 27,2011, from Patrice Amity, now Patrice Amity Haan, joined by her husband, D. Scott Haan, as to his marital interest, to Patrice Amity Haan and D. Scott Haan, husband and wife, recorded in the Office of the Recorder of Deeds of Lackawanna County to Instrument No. 201120798; deed dated June 9, 1992, from George H. Evans, Jr., to Patrice Amity, recorded in Lackawanna County Deed Book (“deed book”) 1398, at page 781; deed dated January 28, 1982, from George H. Evans, administrator of estate of Catherine P. Evans, to George H. Evans, Jr., recorded in deed book 1046, at pages 479-83; deed datedAugust 28,1975, from Catherine Evans to George H. Evans, Jr., recorded in deed book 861, at pages 57; deed dated September 23,1954, from William E. Kromer to George H. Evans and Catherine P. Evans, recorded in deed book 526, at page 458; deed dated April 12, 1946, from Anthony Szwcak to William E. Kromer, recorded in book 459, at page 244; deed dated December 7, 1918, recorded in deed book 298, at page 35; and deed dated October 16, 1905, from Elizabeth Flynn to Louisa Harris, recorded in deed book 217, at page 311. (Plaintiffs’ exhibit nos. 1-5). The relevant conveyances which serve as the basis for the Wells’ 212 acres of land, which are comprised of 97.74 acres (“parcel #1”) and 116.46 acres (“parcel #2”) respectively, are: deed dated July 13, 1992, from John Wells, Jr., Frances Makowski and Donald Wells to John Wells, Jr. and Susan A. Wells, located in deed book 1424, pp. 602-04; deed dated July 13, 1992, from John Wells, Jr., administrator of the estate of Edna Wells to John Wells, Jr., Frances Makowski and Donald Wells, which is located at deed book 1424, pp. 597-600; deed dated December 7, 1988, from Edna Wells to Edna Wells and John Wells, Jr., which is located in deed book 1270, pp. 712-14; deed dated January 17, 1946, from Ella A. Wells to John Wells and Edna Wells, which is located at deed book 456, pp. 351-52; deed dated July 2, 1924, joining parcel #1 with parcel #2, from Andrew Walukus to W.P. Wells which is located in deed book 342, pp. 372-73; and deed dated November 18, 1920, for parcel #1, from Andrew Walukus to Warren P. Wells, which is located in deed book 315, pp. 174-75. (Plaintiffs’ exhibit nos. 9-17).

The Haans assert that the Wells have encroached upon a portion ofthe Catherine Evans tract. (T.P. 1/7/13 atp. 108). The Wells maintain that the Haans have entered parcel #2 without permission, erected a gate on a well-established easement, and posted the trees contained therein. (Docket entry no. 3 at ¶¶13-20; T.P. 1/7/13 at pp. 132, 135-137; defendants’ exhibit nos. D2A-G). Defendant John Wells, Jr. pays the real estate taxes on parcel #2 annually, (T.P. 1/7/13 at p. 131), and the Wells have utilized parcel #2 for a number of recreational activities, including hunting, riding ATVs and picking berries. (Id. atpp. 132,159-160). In rebuttal to the Wells’ claim, plaintiff D. Scott Haan testified that the Haans acquired an unidentified portion of parcel #2 through a tax sale and subsequent quiet title action. (T.P. 1/7/13 atp. 118, 123-124).

The resolution of the parties’ claims hinges primarily upon the surveys that were conducted of the land at issue. The most senior survey identified in this matter was a survey that was conducted by Hollis Dunning (“Dunning”) in 1953. (T.P. 1/7/13 at p. 92; defendants’ exhibit no. 3). Dunning conducted this survey on behalf of the American Telephone & Telegraph Co. (“AT&T”). (Id.). Among his findings, Dunning identified the ownership rights of John A. Wells in the James Davis Warrant. (Id.).

The Haans had their property surveyed by George Dunda (“Dunda”) in 1989 and 1992. (T.P. 1/7/13, at pp. 69-70, 73, 100; plaintiffs’ exhibit nos. 6 & 19). According to Dunda’s 1989 survey, the Haans are owners of a parcel, which includes the Catherine Evans tract, that consists of the following dimensions: beginning at the northern boundary on the S45°56’00” E line, the Haans’ boundary line moves along S45°56’00”E in a southern direction for 1340.49 ft and ends at S46°10’00”W. The boundary line then moves in a southwestern direction along S46°10’00”W for 1335.14 ft, which ends at the S67°58’00”E line. The boundary line then moves east along S67 °s 58’00”E for 229.39 ft, which ends at S43°53’00”W. The S43°53’00”W boundary line proceeds southwest for 1383.81 ft where it meets N45°03’56”W. The boundary line then follows the N46°03’56” line for 2468.22 ft in a southeasterly direction where it meets a stone wall at N43°35’00”E. The Haans’ boundary line follows N43°35’00”E for 1219.72 ft where it meets S61°57’00”E. The Haans’ boundary line then runs on S61°57’00”E for 2561.67 ft, which ends when it intersects with S43°36’00”W. The boundary line then moves in a southwesterly direction along S43°36’00”W for 1307.17 ft. The boundary line then moves in a northwesterly direction along the N62°20’08”W for 1139.08 ft. The line then turns in a northeastern direction along S40°00’00”W for 3166.02 ft where it then meets Timber Lane/T-378. The boundary line then continues along the S40°00’00”W from Timber Lane/T-378 for 3074.33 ft, which returns to the starting line of S45°56’00”E. (Plaintiffs’ exhibit no. 19).

Dunda also prepared a survey dated December 14, 2012, that likewise identifies the Haans’ alleged ownership rights in the area in question. (Plaintiffs’ exhibit no. 6). In addition, Dunda’s 2012 survey identifies the two areas that the Haans contend that the Wells encroached and trespassed upon, namely a 23.41 acre area (“encroachment area #1”) and a 5.18 acre area (“encroachment area #2”), respectively. (Id.).

The Wells had their relevant property surveyed by John Hennemuth (“Hennemuth”). (T.P. 2/27/13, at p. 14; plaintiffs’ exhibit no. 18). Hennemuth’s survey was originally dated May 29, 2009, but was revised on September 22, 2009, and November 4, 2010. (Plaintiffs’ exhibit nos. 18 & 24). According to Hennemuth’s survey, the Wells own parcel #1 and parcel #2, which are identified as such on plaintiffs’ exhibit nos. 18 and 24. (Id.).

II. DISCUSSION

(A) HAANS’ EJECTMENT ACTION

In count I of their complaint, the Haans assert a cause of action in ejectment relative to two parcels of land, to wit, a 23.41 acre area (“encroachment area #1”) and a 5.1 acre area (“encroachment area #2”). (Docket entry no. 1 at ¶¶ 1 - 8). Encroachment area #1 and encroachment area #2 are both identified as the “cross-hatched” areas on plaintiffs’ exhibit no. 6. (Plaintiffs’ exhibit no. 6).

Plaintiffs in an ejectment action bear the burden of proving, by a preponderance of the evidence, their right to immediate exclusive possession of the property, and such “[rjecovery can be had only on the strength of their own title, not the weakness of defendant’s title.” Riveiwvatch Condominium Owners Association v. Restoration Development Corporation, 980 A.2d 674, 681-682 (Pa. Cmwlth. 2009), app. denied, 603 Pa. 711, 985 A.2d 220 (2009). “Ejectment is an action filed by a plaintiff who does not possess the land but has the right to possess it, against a defendant who has actual possession.” Wells Fargo Bank v. Long, 934 A.2d 76, 78 (Pa. Super. 2007); Durdach v. Revta, 2011 WL 7272290, at * 3 (Lacka. Co.2011), aff’d, 64 A.3d 268 (Pa. Super. 2013). It is firmly established in Pennsylvania that an ejectment action “cannot be maintained by the plaintiff unless [s]he is out of possession, and [s]he has a right to the possession of the property at the time of the commencement of the action.” Wells Fargo Bank, 934 A.2d at 79.

The Haans did not establish by a preponderance of the evidence that they are “out of possession” of encroachment area #1 or encroachment area #2. At most, the Haans presented evidence indicating that members of the Wells family have temporarily entered or encroached upon those two areas. (T.P. 1/7/13 at pp. 107-109, 123-125). Absent sufficient proof that a party other than the Haans was in “possession” of encroachment area #1 and encroachment area #2 at the time that the Haans filed this suit on November 9, 2011, there is no factual or legal basis for finding in their favor on their ejectment claim. Consequently, a verdict will be entered in favor of the Wells and against the Haans with respect to count I of the complaint.

(B) HAANS’ TRESPASS CLAIM

The Haans alternatively advance a trespass claim in count II of the complaint. One who intentionally enters the property of another without the privilege to do so is chargeable with trespass. Kopka v. Bell Telephone Company of Pennsylvania, 371 Pa. 444, 450, 91 A.2d 232, 235 (1952); Woodham v. Dubas, 256 Fed. Appx. 571, 576 (3d Cir. 2007). Pennsylvania has adopted the Restatement (Second) of Torts § 15 8 which imposes liability for trespass if the intruder enters or remains on the land of another without consent. Rawlings v. Bucks County Water Sewer Authority, 702 A.2d 583, 586 (Pa. Cmwlth. 1997). It is immaterial whether the trespass is committed willfully and with the intent to invade another’s interest, and a defendant is liable for trespass which is the product of an innocent mistake based upon the trespasser’s honest or reasonable belief that the property in question is his/her own. Kopka, supra.

To succeed with a trespass claim, “there must be in the plaintiff either actual possession or the right to immediate possession flowing from the right of property; and [s]he must have been deprived of it by the tortious act of another.” Florig v. Estate of O’Hara, 912 A.2d 318, 327 n.13 (Pa. Super. 2006), app. denied, 593 Pa. 740, 929 A.2d 1162 (2007). Aparty is deemed to be in “possession” of land if [s]he, inter alia, “is in occupancy of land with intent to control it.” Cassel-Hess v. Hoffer, 44 A.3d 80, 88 n.6 (Pa. Super. 2012) (quoting Restatement (Second) of Torts §157),. If the property at issue is “unimproved and unoccupied in any way, the title carrie [s] with it the possession and such possession [i]s sufficient to support an action of trespass.” Roncace v. Welsh, 141 Pa. Super. 170, 173, 14 A.2d 616, 618 (1940).

The credible evidence established that encroachment areas #1 and #2 constitute uncultivated, unimproved and unoccupied land, (Plaintiffs’ exhibit no.7), as a result of which the Haans must establish their ownership of that property to establish their possession. The surveys and testimony presented by George Dunda adequately establish the Haans’ title and ownership of encroachment areas #1 and #2. (See plaintiffs’ exhibit nos. 2, 3, 6, 19). In fact, even John Wells, Jr. acknowledged during his testimony that “I didn’t claim I own [the Catherine Evans parcel].” (T.P. 1/7/13 atp. 145). Therefore, the Haans have satisfied the possession element of their cause of action for trespass.

The credible testimony demonstrated, by a preponderance of the evidence, that the Wells have entered encroachment areas #1 and #2, albeit based upon the mistaken belief that the land was not owned by the Haans. The evidence further established that the Wells have intentionally entered that land without the privilege to do so. (See plaintiffs’ exhibit nos. 2, 3, 6, 19; T.P. 1/7/13 at p. 145). By virtue of the Wells’ unprivileged and intentional intrusion upon encroachment areas #1 and #2, they are liable to the Haans for trespass and will be enjoined from any further unauthorized entry upon that property.

(C) WELLS’ TRESPASS CLAIM

In their new matter, the Wells request a judicial determination that the Haans have entered the Wells’ land without permission, erected a gate barring passage over a “well-established easement,” and improperly “posted” the property with signs. (Docket entry no. 3 at*¶¶ 13-20). Since the Wells seek affirmative relief, their claim should have been asserted as a counterclaim under Pa.R.C.P. 1031, rather than as new matter pursuant to Pa.R.C.P. 1030. However, some decisional authority recognizes that the mislabeling of a counterclaim as new matter should not be regarded as a fatal procedural defect. See, e.g., Reeping v. Reeping, 277 Pa. Super. 269, 271, 419 A.2d 766, 767 (1980) (“Despite the mislabeling of this claim as new matter, we will treat it as a counterclaim.”). Indeed, during the bench trial, even counsel for the Haans represented that “[tjhere is a counterclaim.” (T.P. 1/7/13 at p. 116). Inasmuch as the Haans and their counsel proceeded at trial based upon the understanding that the Wells had properly asserted a counterclaim, the mislabeling of that claim as new matter will be treated as a de minimus defect, see Horick v. Laird, 58 D. & C.2d 141, 142 (York Co. 1971), and the merits of that claim will be addressed.

Not unlike the Haans, the Wells must produce sufficient evidence of their ownership of the disputed land, i.e., parcel #2. The Wells presented credible testimony and documentary proof by John R. Hennemuth establishing the Wells’ ownership of parcel #2. Based upon his survey of the Wells’ property, his interpretation of the deeds, the tax assessment made by the local taxing authority, and the Wells’ payment of property taxes, Mr. Hennemuth convincingly opined that the second deed to the Wells conveyed the remainder of the James Davis Warrant to the Wells. (T.P. 2/27/13 at pp. 94-96; plaintiffs’ exhibit nos. 18, 24).

In addition, John Wells, Jr. credibly testified that he pays the real estate taxes on parcel #2 on an annual basis, and his family utilizes that land for recreational activities. (T.P. 1/7/13 at pp. 131-132, 159-160). Perhaps most importantly, the Dunning survey that was prepared for AT&T on December 1, 1953, clearly identifies the Wells as the owners of the portion of parcel #2 which is at issue. (Defendants’ exhibit no. 3).

Although the Haans asserted during the non-jury trial that they acquired a portion of parcel #2 via a tax sale and subsequent quiet title action, (T.P. 1/7/13 at pp. 118, 123-124), the record is devoid of the requisite proof of that purported acquisition. No exhibits were admitted into evidence establishing the details of that alleged tax sale or the scope of the quiet title action. Hence, the Haans have failed to produce sufficient evidence of their ownership or right to possession of any part of parcel #2. Based upon the record submitted for review, the Haans’ claims relative to parcel #2 must fail. See Fried v. Sulewski, 25 Pa. D. & C. 3d 580, 586-587 (Luz. Co. 1982).

The credible evidence has established the Wells’ ownership and right to immediate possession of the relevant portion of parcel #2. It is undisputed that the Haans have entered that land without the Wells’ consent, and have erected a gate and posted signs on that property. (T.P. 1/7/13 atpp. 132,135-137). As a result, the Wells have proven that the Haans have entered the Wells’ property without privilege and are, therefore, liable for trespass. Accordingly, the Haans will be directed to immediately remove the gate in question, which is identified in defendants’ exhibit nos. D-2E and D-2F, as well all signs which have been posted on said property by the Haans.

ORDER

And now, this 19th day of June, 2013, upon consideration of the competent, credible and relevant evidence introduced during the non-jury proceedings on January 7, 2013, and February 27, 2013, and the parties’ supplemental submissions filed on May 27, 2013, and based upon the findings of fact and conclusions of law set forth in sections I and II above, it is hereby ordered and decreed that:

1. A non-jury verdict is entered in favor of defendants and against plaintiffs as to plaintiffs’ ejectment claim set forth in count I of the complaint;

2. A non-jury verdict is entered in favor of plaintiffs and against defendants on plaintiffs’ claim for trespass set forth in count II of the complaint;

3. Defendants John A. Wells, John Wells, Jr., and William Wells are enjoined from any further entry or encroachment upon the 23.41 acre area and the 5.18 acre area identified as the “cross-hatched” areas on the plaintiffs’ exhibit no. 6;

4. A non-jury verdict is entered in favor of defendants and against plaintiffs on defendants’ new matter/ counterclaim for trespass, and plaintiffs are directed to immediately remove the gate and signs which they erected on parcel No.2

      . Warrants such as the James Davis Warrant and the Stephen King Warrant are traceable to land conveyances that were made by William Penn “after his grant from the Crown” prior to the American Revolution. See Hurst v. Dippo, 1 U.S. 19, 20, 1 Dall. 22, 23 (Pa. 1774). The Supreme Court of Pennsylvania has stated that “[wjarrent lines were made for the grantees of the state, but they bind not purchasers from the warrantees.”
        Altemose v. Hufsmith, 45 Pa. 121, 127 (1863).


author: WETTICK, J,

text:
    Toth v. Northwest Savings Bank

      March 1, 2013

      Andrew M. Gross, I Brent Jordan, Todd D. Carpenter, Elaine A. Ryan and Michael W. Sobol, for plaintiff.

      Roy W. Arnold, for defendant.
   WETTICK, J,

— This opinion addresses two issues that are not resolved by the Pennsylvania appellate courts: (1) does the economic loss doctrine apply to private actions based on the catch-all provision of the Pennsylvania Unfair Trade Practices and Consumer Protection Law and (2) can a consumer pursue a private action based on the catch-all provision of the Pennsylvania Unfair Trade Practices and Consumer Protection Law without offering testimony regarding reliance?

PLAINTIFF’S FIRST AMENDED COMPLAINT

In her first amended complaint, plaintiff alleges that she was the victim of a deceptive practice in which Northwest Savings Bank (“Northwest”) maximized overdraft charges by (1) waiting until the end of a business day to determine whether the account balance in a customer’s checking account was sufficient to cover all debit transactions occurring between the end of the prior business day and the end of the current business day and (2) where there were multiple transactions within this period, reordering the debit transactions from the highest to lowest amounts, thereby maximizing the overdraft fees charged to the account holder whenever the total charges against the account at the end of the business day exceeded the account balance. In other words, a customer could incur overdraft charges in instances where there were sufficient funds in the account to cover the transaction at the time of the transaction.

EXAMPLE: The balance of the customer’s checking account as of 12:01 A.M. on Wednesday is $3,000; debit card transaction 1 at 7:00 A.M. - $7.27; transaction 2 at 8:15 A.M. - $4.21; transaction 3 at 12:37 P.M. - $21.16; transaction 4 at 1:01 P.M. -$3.13; transaction 5 - $2,989.00 at 3:30 P.M.

If this account was posted in chronological order, the customer would incur only one overdraft charge. If the account was posted from lowest to highest at the end of the business day, the customer would be charged for one overdraft. However, if the account is posted from highest to lowest at the end of the business day, the customer incurs four separate overdraft charges. Under this third scenario, in which transaction 5 is posted first and transaction 3 second, the bank will assess overdraft charges on four transactions for which the actual funds in the customer’s account were sufficient at the time of each transaction to cover the debits submitted for payment.

The subject of this opinion and order of court is Northwest’s preliminary objections to plaintiff’s first amended complaint which raises the following five counts:

COUNT 1 - BREACH OF CONTRACT/BREACH OF THE COVENANT OF GOOD FAITH & FAIR DEALING

Plaintiff alleges that Northwest, through its overdraft policies and practices described in the first amended complaint, breached the covenant of good faith and fair dealing implicit in the deposit agreement. Northwest has not filed preliminary objections as to this count.

COUNT II - UNCONSCIONABILITY

I am sustaining Northwest’s preliminary objection seeking dismissal of this count for the reasons set forth at pages 11-13 of my opinion in Henry v. PNC Bank, No. GD-10-022974, 160 P.L.J. 303, 306 (Allegheny C.P. Jan. 31, 2012)

COUNT III - UNJUST ENRICHMENT

I am sustaining Northwest’s preliminary objections seeking dismissal of this count for the reasons set forth at page 14 of my opinion in the Henry litigation. 160 P.LJ. at 306.

COUNT IV - RELIEF PURSUANT TO DECLARATORY JUDGMENT ACT

Plaintiff alleges at page 14, footnote 1, of its original complaint that Northwest’s deposit agreement now provides for Northwest to post customers transactions in the order it receives them. Consequently, I am dismissing this count.

COUNT V - VIOLATION OF THE PENNSYLVANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW

Under 73 P.S. §§201-9.2 of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“Consumer Protection Law”), a consumer who suffers any ascertainable loss of money as the result of the use or employment of a method, act, or practice declared unlawful at §201 -2(4) may bring a private action in which the consumer may seek an award of costs, reasonable attorney fees, and up to three times the actual damages sustained. Plaintiff seeks recoveiy under §201-2(4)(xxi), which includes among the unlawful practices “Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.” This section is referred to as the catch-all provision.

Northwest does not challenge plaintiff’s contention that Northwest’s debit charge re-sequencing policies and practices may constitute “fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.”

Northwest contends that the Consumer Protection Law claims fail for two independent reasons: (1) the claims are barred by the economic loss doctrine and (2) plaintiff has failed to allege justifiable reliance.

Economic Loss Doctrine

Under the economic loss doctrine, no cause of action may be maintained in tort where the only injury is economic-that is any loss not arising out of a physical injury or damage to personal property. Northwest correctly states that through count V plaintiff seeks only monetary damages-she is not seeking damages for physical injury or damage to personal property. Thus, I consider whether a statutory claim may be barred by the economic loss doctrine.

If I was to apply the economic loss doctrine to a claim based on practices that constitute fraudulent or deceptive conduct which creates a likelihood of confusion or misunderstanding, this catch-all provision would be rendered nearly meaningless. Consumers raising claims under this catch-all provision have not sustained physical injuries or damage to property; their only damages are economic losses. Most of their claims may be summarized as follows: “we did not get what we paid for because the defendant engaged in fraudulent or deceptive conduct.”

Within the past few years, hundreds of lawsuits raising claims under the Consumer Protection Law for economic losses have been filed in this court based on what are referred to as unfair insurance practices. For example, an insurance agent falsely represents that the life insurance policy which the plaintiff is purchasing will be fully paid through monthly payments of $100 for seven years.

Similarly, lawsuits are regularly filed by buyers of residential property under the Consumer Protection Law to recover damages based on the seller’s fraudulent misrepresentations or material omissions. For example, the seller failed to disclose that the house was not connected to the public sewer system as required by municipal ordinance.

It would be Northwest’s contention that in these examples the economic loss doctrine bars recovery under the Consumer Protection Law. Northwest relies on Werwinski v. Ford Motor Co., 286 F.3d 661 (3d Cir. 2002). In that case, the plaintiffs purchased Ford vehicles for family and household purposes, which were allegedly known by Ford to contain defective components. The plaintiffs sued Ford for breach of express warranty, breach of implied warranty, fraudulent concealment, and violations of the Consumer Protection Law. Ford sought dismissal of the tort and Consumer Protection Law claims contending that they are barred by the economic loss doctrine.

The court, applying Pennsylvania law, addressed three issues:

The first issue was whether the economic loss doctrine applies to consumer transactions or only to commercial transactions. The court ruled in favor of Ford Id. at 674.

The second issue was whether the economic loss doctrine applies to intentional fraud actions. The court again ruled in favor of Ford. While the court found some merit to the plaintiffs’ position that there should be an intentional fraud exception to the economic loss doctrine in order to deter fraudulent behavior, it ruled in favor of Ford on the ground that the plaintiffs have been unable to explain why contract remedies are inadequate to provide redress. Id. at 679-80.

The third issue the court considered was whether the economic loss doctrine bars claims under the Consumer Protection Law. The court stated that exempting a statutory fraud claim from the effect of the economic loss doctrine would virtually nullify the doctrine. Thus, the same policy justification for applying the doctrine to common law intentional fraud claims supports the doctrine’s application to claims under the Consumer Protection Law. Id. at 681.

I agree with the Werw inski court that a ruling that the economic loss doctrine does not apply to claims raised under the catch-all provision of the Consumer Protection Law will virtually nullify the doctrine in consumer transactions. However, as I previously discussed, if the economic loss doctrine applies to private actions brought under the catch-all provision of the Consumer Protection Law, in almost all instances a private action will be barred by the economic loss doctrine.

Nothing in the language of the Consumer Protection Law suggests that private actions are subject to the economic loss doctrine. To the contrary, the clear and unambiguous language of the Consumer Protection Law provides for any victims of consumer fraud to recover not only actual damage but also punitive damages and counsel fees. Thus, the Legislature’s intent is clear. In private actions, the victims of fraudulent or deceptive practices are to be fully compensated.

The controlling issue, therefore, is whether the economic loss doctrine gives way to the Consumer Protection Law or whether §9.2 of the Consumer Protection Law gives way to the economic loss doctrine. The answer is clear.

The economic loss doctrine is court-created. The Consumer Protection Law expresses the will of the Legislature. Unless constitutional issues are involved, case law may not interfere with legislation See Seebold v. Prison Health Servs., Inc., 57 A.3d 1232, 1245 n. 19 (Pa. 2012) (“[I]t is the Legislature’s chief function to set public policy and the courts’ role to enforce that policy subject to constitutional limitations.”) (quoting Program Admin. Servs., Inc. v. Dauphin County Gen. Auth., 928 A.2d 1013, 1017-18 (Pa. 2007)). Thus, the economic loss doctrine does not apply to private actions under the Consumer Protection Law.

Several trial courts, in rulings that are not binding on this court, have said that the economic loss doctrine does not bar claims under the Consumer Protection Law, including Smith v. Reinhart Ford, 68 Pa. D.&C.4th 432, 437-38 (Lancaster C.P. 2004); Zwiercan v. General Motors Corp., 58 Pa. D.&C.4th 251, 266-70 (Phila. C.P. 2002); and Oppenheimer v. York Int’l, No. 020304348, 2002 WL 31409949, *6 (Phila. C.P. 2002). See also In re Sears, Roebuck & Co., No. MDL-1703, 2009 WL 937256, *9 (N.D. III., Apr. 6, 2009); and In re New England Mut. Life Ins. Co. Sales Practices Lit. v. New England Mut. Life Ins. Co., 2003 WL 25953191, *11 (D.Mass., 2003). But see Fogelv. Lambert, No. C-48-CV-2011-4473, 2011 WL 7758352 (Northumberland C.P. Mar. 28, 2012).

Failure to Allege Justifiable Reliance

Plaintiff’s first amended complaint never mentions reliance. Northwest contends that plaintiff cannot bring this action without pleading (and proving) individual reliance. Thus, according to Northwest, this lawsuit must be dismissed unless plaintiff seeks to file a second amended complaint containing factual allegations which support a finding of justifiable reliance. I disagree.

The fraudulent or deceptive conduct alleged by plaintiff is Northwest’s use, without obtaining the permission of its account holders, of a method for calculating overdrafts favorable to Northwest. The fraud consists of an omission-the Bank’s imposing charges without authorization. Thus, every account holder who paid additional fees has been harmed.

While Northwest contends that the case cannot proceed without allegations as to reliance, Northwest never explains what individualized testimony is required.

In other words, the fraudulent or deceptive conduct is the reordering of transactions out of chronological order without the account holder’s permission. The damages are the excess charges incurred from the use of this system without the account holder’s consent. This class is limited to only those persons who have been overcharged.

In fraud cases, the requirement that a plaintiff establish reliance is imposed solely to determine the extent to which (if at all) the plaintiff or a member of the class was actually harmed by the fraudulent or deceptive conduct. Where, as in the present case, a lawsuit is brought only by persons who were actually harmed by the bank’s deceptive conduct, and who sustained actual losses as a result of improper overdraft charges, a reliance requirement serves no purpose.

The Consumer Protection Law, as written, permits a consumer to bring a private action if the consumer has suffered any ascertainable loss of money as the result of the use or employment of fraudulent or deceptive conduct. To recover, the plaintiff must establish that plaintiff was a victim of a fraud or deceit (requirement one) and that plaintiff suffered an ascertainable loss (requirement two).

Where the fraud or deceit is a misrepresentation, requirement one is met if the plaintiff can show a material misrepresentation and an intent to misrepresent. However, Requirement Two is not met without a showing justifiable reliance.

EXAMPLE ONE: The insurance agent advised the customer-a forty-five-year-old accountant-that if the accountant/customer makes a monthly payment of $100 until age sixty-five, the accountant will have a fully paid insurance policy that will provide insurance in the amount of $1 million upon the accountant’s death. The accountant later learns that at age sixty-five he is guaranteed a fully paid policy that will pay only $30,000 upon the accountant’s death. The law is not going to presume that the accountant, at the time he purchased the policy, believed that payments of $24,000 over a twenty-year period would produce a $1 million insurance policy. Thus, reliance must be shown to establish an ascertainable loss.

However, a showing of actual reliance should not be required when ascertainable losses necessarily flow from the fraud or deceit. Consider the following examples:

EXAMPLE TWO: The agreement between the car dealer and the purchasers permitted the car dealer to add the manufacturer’s transportation fees to the agreed-upon purchase price.

The car dealer pays only $71 to the manufacturer for transportation fees but charges the purchasers $171 for transportation fees. Upon a showing that the car dealer is fraudulently overcharging purchasers, each member of the class of persons who paid the inflated amount should be entitled to recover the difference between the overcharged amount and the actual costs in addition to the other relief provided for in section 9.2 of the Consumer Protection Law.

EXAMPLE THREE: A financial advisor places orders on behalf of his clients with a broker who, at the request of the financial advisor, sends an invoice to the advisor for a placement fee of $100 for each order. The financial advisor passes on the fee to the client. The broker, in fact, does not charge placement fees. Upon proof of the kickback scheme, the clients of the financial advisor should be entitled to recover the placement fee and the other relief provided for in section 9.2 of the Consumer Protection Law.

EXAMPLE FOUR: The contractor of a housing development, who knows of the requirements of the building code, is, unbeknownst to the purchasers, using roofing materials that do not comply with code standards. The use of noncomplying roofing materials was discovered when a fire at one of the dwellings resulted in every homeowner being required by the building inspector to replace his or her roof. Each homeowner should be entitled to recover, at a minimum, the cost of replacing the roof and other relief provided by section 9.2 of the Consumer Protection Law upon a showing that the contractor knowingly installed roofs that did not comply with code standards.

In Examples Two and Three, the defendants obtained money belonging to each member of the class as a result of the defendants’ representations and omissions. Thus, reliance testimony is not needed to establish an ascertainable loss.

In Example Four, reliance is not a requirement for establishing that the class members sustained an ascertainable loss because the loss flows necessarily from proof of the fraud.

For Examples Two and Three, the Consumer Protection Law should not be construed to require the named plaintiffs and class members to offer speculative testimony as to whether they would have purchased the car (Example Two) or placed orders (Example Three) even if they had known that they would be cheated. The inflated transportation fee (Example Two) and charging the client a non-existent placement fee (Example Three) are the fraudulent acts, and the ascertainable losses are the fraudulent charges.

For Example Four, if the Pennsylvania courts would require the named plaintiff and the class members to offer speculative testimony that they would not have purchased the property if told that the roof did not comply with code requirements and would need to be replaced, they would be creating reliance requirements that are so robust as to almost eliminate class actions based on deceptive conduct. Since the Consumer Protection Law never mentions reliance as a prerequisite for recoveiy, this cannot be what the Legislature intended.

In support of its contention that plaintiff must allege justifiable reliance, Northwest relies on the following three Pennsylvania Supreme Court cases: Toy v. Metropolitan Life Ins. Co., 928 A.2d 186 (Pa. 2007); Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425 (Pa. 2004); and Weinberg v. Sun Co., 777 A.2d 442 (Pa. 2001).

In Weinberg, the named plaintiffs were purchasers of Sunoco Ultra® Gasoline. They alleged that Sunoco’s advertisements induced customers to purchase Ultra® when their vehicles did not need the high level of octane the gasoline contained. Following a hearing, the trial court denied class certification, stating that fraud claims based on the catch-all provision of the Consumer Protection Law require proof of reliance and causation; thus, a private action under the Consumer Protection Law may be brought only by purchasers who were aware of and believed the false message that Ultra® would enhance engine performance and purchased Ultra® for that reason. 777 A.2d at 444.

The Superior Court reversed on two of the four Consumer Protection Law claims, holding that false advertising claims do not require proof of reliance and causation. Id. The Supreme Court reinstated the ruling of the trial court, stating that there is no authority which would permit a private plaintiff to pursue an advertiser because an advertisement might deceive members of the audience and might influence a purchasing decision when the plaintiff was neither deceived nor influenced. Section 9.2 of the Consumer Protection Law clearly requires, in a private action, that a plaintiff suffer an ascertainable loss as a result of the defendant’s prohibited action. “That means, in this case, a plaintiff must allege reliance, that he purchased Ultra® because he heard and believed Sunoco’s false advertising that Ultra® would enhance engine performance.” Id. at 446.

In Yocca, the plaintiffs’ claims included violations of the Consumer Protection Law based on alleged fraudulent misrepresentations made by Pittsburgh Steelers Sports, Inc. relating to the location of seat licenses at Heinz Field in a brochure sent to the plaintiffs. 854 A.2d at 432. The Pennsylvania Supreme Court dismissed the claim noting that the plaintiffs failed to specifically allege they justifiably relied on representations in the brochure when entering into an agreement with the Steelers to purchase seat licenses. Id. at 439 n.27. The court stated that, in fact, it was impossible for the plaintiffs to claim justifiable reliance because the seat-license agreement contained an integration clause stating that the terms of the agreement supersede all previous representations and agreements. Id. at 439. This case simply holds that a person who enters into an agreement and receives that to which he is entitled under the contract has not suffered a loss as a result of fraud and may not pursue claims under the Consumer Protection Law.

In Toy, the policyholder of a Metropolitan Life Insurance policy based her claims under the Consumer Protection Law on representations made by the insurance agent that, if she made monthly payments of fifty dollars, the plan would generate a fund of approximately $ 100,000 when she reached age sixty-five. 928 A.2d at 189. This was a fraudulent misrepresentation. The policy set forth a guaranteed cash value at age sixty-five of only $11,008.86 based on a guaranteed interest rate of four percent per year. Id. at 190. The insurance company contended, on the basis of Yocca, supra, that the policyholder could not have justifiably relied upon the representations of the insurance agent because the policyholder received an integrated insurance policy which informed the policyholder that she could return the policy within ten days and which contained accurate information on the policy’s coversheet that, if read, would show that the agent’s representations were false. Id. at 203.

The Pennsylvania Supreme Court rejected the policyholder’s contention that a relaxed reliance standard applies to private actions based on the catch-all provision. It ruled that common law fraud standards govern fraud claims based on the catch-all provision of the Consumer Protection Law. Id.

The Supreme Court next rejected the ruling of the trial court that the plaintiff could not establish reliance on the misrepresentations of the agent because of the accurate information subsequently made available in the policy delivered to the policyholder. The court held that it was for the jury to decide whether the policyholder reasonably relied on the insurance agent’s misrepresentations. Id. at 207-08.

Weinberg, Yocca, and Toy support the requirement, which plaintiff does not contest, that a class may not include persons who did not sustain actual losses as a result of the defendants’ conduct: Weinberg sought to include persons who never knew of Sunoco’s representations; Yocca sought recovery where it was impossible for the named plaintiff and class members to establish any damages; and Toy (not a class action) sought recovery where the plaintiff, subsequently provided with accurate information, may not have sustained losses as a result of the agent’s prior representations.

Northwest also relies on the following Superior Court opinions: Debbs v. Chrysler Corp., 810 A.2d 137 (Pa. Super. 2002); Sexton v. PNC Bank, 792 A.2d 602 (Pa. Super. 2002); Aronson v. GreenMountain.com, 809 A.2d 399 (Pa. Super. 2002); and DiLucidio v. Terminix Int’l, Inc., 676 A.2d 1237 (Pa. Super. 1996). These cases also do nothing more than prohibit certification of a class which includes persons who did not sustain actual damages solely as a result of the defendant’s fraudulent conduct.

In Debbs, the named plaintiff brought a class action alleging that Chrysler violated the catch-all provision of the Consumer Protection Law by selling automobiles without disclosing that its automobiles contained defective airbags. 810 A.2d at 142. The named plaintiff alleged that he would not have purchased the car if Chrysler had disclosed that the airbag was defective. Id. at 144.

The trial court permitted the lawsuit to proceed as a class action. The Superior Court overturned the judgment in favor of the class because the trial court improperly certified the Consumer Protection Law claim. The issue the Superior Court addressed was whether class members could prevail without establishing that they would not have purchased the vehicle if they had known of the defective airbags.

In this case, Chrysler allegedly withheld information that persons had been burned after the airbag deployed. However, it was undisputed that the risk of serious bums would arise only after the automobile was involved in an accident of sufficient severity to cause the airbag to deploy. Also, it was undisputed that the risk of serious bums is relatively low. The bum rate was 16.3 per 100,000 automobiles. This rate took into account all types of burns of all levels of severity. Id. at 158.

The plaintiff contended that reliance should be presumed where the fraud involves omissions of objectively material information; he argued that federal and state courts have presumed class-wide reliance where the fraud involves omissions of objectively material information. Id. at 157-58. The Superior Court did not accept or reject the concept of presumed class-wide reliance. The court explained that such a concept would not apply to this case in which there was almost no likelihood that a buyer would actually suffer serious bums. The court stated that consumers could have

“a wide range of reactions to the undisclosed information, depending on a number of factors including: (1) the personal degree of risk-aversion; and (2) their assessment of the other advantages and disadvantages of buying a Chrysler automobile. Some consumers may not have bought a Chrysler at all; others may have bought the car but replaced the air bags; and others may have bought the car but not replaced the air bag. Reasonable consumers could come to different conclusions about the materiality of the withheld information.”

Id. at 158.

In Sexton, 792 A.2d at 603-04, PNC Bank charged persons who were not PNC depositors a check-cashing fee of $3.00. The plaintiff sued on behalf of all payees of checks drawn on PNC Bank who did not have an account with PNC. The court ruled that the customers did not state a claim under the Consumer Protection Law because the plaintiff failed to allege either that she incurred a fee in reliance on any representation by a bank employee, or that the bank did not disclose the fee. Id. at 608.

In Aronson, the plaintiff filed a class action under the Consumer Protection Law against GreenMountain, the supplier of electric generation services, for disseminating false advertisements to Pennsylvania consumers. 809 A.2d at 401. The plaintiff’s complaint averred that the advertisements falsely portrayed the total cost of its electricity to be less than it actually was, and the plaintiff sought to recover damages for losses as a result of the false advertising. Id. The court stated that this lawsuit was governed by the Weinberg case. Id. at 402. It ruled that the trial court did not err in refusing the plaintiff’s request for an evidentiary presumption of reliance because the plaintiff failed to articulate why the class is entitled to a presumption of reliance where the definition of the class is not at the very least limited to GreenMountain customers who allegedly viewed the false advertisements. Id. at 405.

In DiLucidio, 676 A.2d at 1241, the court stated: “We find that in order to proceed with their claims under the [Consumer Protection Law], Appellants must be able to establish that the alleged misrepresentations by Appellee caused their loss.” Thus, the court dismissed the claims based on false advertisement because there was insufficient evidence to establish that the plaintiffs retained Terminix because of their advertisements.

In summary, the cases upon which Northwest relies require testimony establishing reliance because a finding of reliance is needed in order to establish that the plaintiff suffered an ascertainable loss as a result of the defendant’s use or employment of fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.

In the present case, a finding of reliance is not needed to establish an ascertainable loss. The fraud or deceit is taking the money of plaintiff and the class members without permission. Plaintiff’s ascertainable losses are the overcharges imposed on plaintiff because of defendant’s scheme for calculating overdraft fees. Testimony as to reliance is not needed to establish ascertainable losses.

In summary, I recognize there is no Pennsylvania appellate court case law which has, through either a holding or in dicta, discussed whether testimony of the plaintiff addressing reliance is required where an ascertainable loss can be established without such testimony. However, there is no reason why case law would require such testimony in this instance. Furthermore, there is statutory authority for my ruling overruling Northwest’s preliminary objections in the nature of a demurrer. Under the clear language of the Consumer Protection Law, there are two requirements for maintaining a private action under the catch-all provision a showing of fraud or deceit and a showing of an ascertainable loss. When, as in this case, both requirements are met, the consumer is entitled to the amount of the actual losses and other relief provided for in section 9.2 of the Consumer Protection Law.

For these reasons, I enter the following order of court:

ORDER OF COURT

On this 25th day of June, 2013, upon consideration of defendant’s preliminary objections to plaintiff’s first amended complaint, it is ordered that counts II, III, and IV are dismissed, and the preliminaiy objections as to count V are overruled.

      . Henry is attached to this opinion as attachment 1.

      . In its preliminary objections, Northwest does not contend that the writings furnished to its customers adequately explained that Northwest might not post charges to the account in chronological order.

      . The Werwinski court correctly stated that no Pennsylvania appellate court had resolved these three issues, which as of this date remain unresolved.

      . Werwinski never addressed the issue of why a court-created doctrine can trump legislation.

      . Whenever individual reliance must be established, courts will not permit the lawsuit to proceed as a class action-see discussion of the case law at pages 10-15 of this opinion.

      . Debbs differs from the present case because in Debbs the alleged defect had almost no impact on the purchasers as a class. Debbs would look like the present case only if, for example, airbags frequently deploy and every airbag that deploys causes serious bums. In all likelihood, at some point, the case law would presume that every purchaser has been harmed because no purchaser would have purchased a vehicle with this defect.


author: TUCKER, J.,

text:
    Gypsy Lane Owners’ Association v. DeJesus

      May 20, 2013—

      Tsiwen M. Law, for appellants

      Glenn M. Ross, for appellee
   TUCKER, J.,

I. PROCEDURAL HISTORY & FACTS

This matter comes before the court from the granting of Timothy Murphy and Lissette DeJesus’ (hereinafter referred to as “appellants”) motion to set aside sheriffs sale. On October 27, 2009, Gypsy Lane Owners’ Association, a condo association (hereinafter referred to as “appellee”) filed a complaint in breach of contract for appellants’ failure to pay condominium fees for a condo located in Philadelphia, PA. Compl. filed (10/27/2009). This matter was schedule for arbitration in the Philadelphia County Court of Common Pleas Arbitration Center on October 28, 2009. Arbitration hearing scheduled (10/28/2009). After filing answers to appellee’s complaint, appellants’ filed a declaration of bankruptcy. Ans. to compl. filed (11/20/2009); ans. to compl. filed (12/28/2009); deferred — bankruptcy (06/11/2010). This matter was removed from deferred status on August 11, 2010. Removed from deferred status (08/11/2010).

The arbitration in this matter went forward; the arbitrators found in favor of appellee and against appellants in the amount of twenty-eight thousand nine hundred and fifteen dollars and seventy cents ($28,915.70). Report & award of arbitrators. Appellants’ appealed the arbitration award on November 15, 2010* and this matter was listed in the Philadelphia County Court of Common Pleas trial ready pool. Listed trial ready pool (11/16/2010). On July 20,2011, the court entered an order that annexed a consent agreement executed by the parties; pursuant to the consent agreement, judgment was entered against appellants’ and in favor of appellees in the amount of forty thousand dollars ($40, 000.00). Order entered — final disp. by J. Moss (07/20/2011).

On August 10, 2011, Eugene Curry filed an appeal of the judgment entered by consent agreement. Appeal to Superior Court. Apparently, Mr. Curry was seeking to represent appellant DeJesus in this matter; Mr. Curry in not an attorney. Opinion filed (10/11/2011). The appeal of the entry of the judgment by consent agreement was eventually quashed by the Commonwealth Court. Appeal quashed by appellate ct. (10/10/2012). Meanwhile, appellee commenced proceedings to enforce its judgment. Praecipe to issue writ filed (10/31/2011); affidavit of service filed (01/19/2012).

On April 2, 2012, a counseled motion to postpone sheriff’s sale was filed on behalf of appellant DeJesus. Mot. Postpone sheriff sale (04/02/2012). The motion to postpone sheriff’s sale was denied. Order entered by J. Tucker (04/02/2013). Appellants’ condo was sold at sheriff’s sale on April 3, 2012; however, the terms of the sale were not completed within the time prescribed by the law and the sheriff returned the writ on September 26, 2012. Mot. to set aside sheriff’s sale (01/16/2013); writ return filed (09/26/2012). A sale of the subject property was scheduled for January 2013. Mot. for reconsideration (02/22/2013).

On January 16, 2013, appellants’ filed a counseled motion to set aside sheriffs sale wherein alleging: (1) the sale of the property was postponed pending an emergency hearing by the court. Appellee thereafter scheduled a sheriff’s sale more than one hundred and thirty (130) days later without serving notice pursuant to Pa.R.C.P. 3129.2; (2) Appellee also did not file an affidavit in accordance withPa.R.C.P. 3129.2; and (3) although appellee’s attorney purchased the condo at the sheriff’s sale, the sheriff never delivered the deed to appellee’s attorney. Mot. to set aside sheriffs sale (01/16/2013). Based on appellants’ motion to set aside sheriff’s sale and response thereto, the court granted appellants’ motion to set aside the sheriff’s sale on February 13, 2013. Mot. to set aside sheriffs sale (01/16/2013); answer (mot./pet. filed) (02/05/2013); order entered by J. Tucker (02/13/2013).

On February 22, 2013, appellee filed a motion for reconsideration of the court’s order granting appellants’ motion to set aside sheriffs sale, wherein alleging: (1) proper notice of the April 3, 2012 sheriff’s sale was given to appellants. When the sale remained incompleted, the sheriff returned the writ and relisted the sheriff’s sale of the condo for January 2013. Since the property had already been sold, no further notice was required pursuant to Pa.R.C.P. 3129.3; (2) Appellee was not required to file an additional affidavit pursuant to Pa.RC.P. 3129.2 because the sale of the property had already occurred, the terms had not been met, and the property was relisted for sale in January 2013; (3) a straw purchaser sent by appellants purchased the subject property, but did not pay the balance of the bid within the time prescribed by law, thereby resulting in the property being relisted in January 2013; (4) nevertheless, the January 2013 sheriff’s sale was advertised by publication in December 2012. Mot. for reconsideration (02/22/2013). The court granted appellee’s motion for reconsideration; denied appellants’ motion to set aside sheriffs sale; and deemed the sheriffs sale of January 8, 2013 as remaining. Order entered by J. Tucker (02/27/2013).

On March 21, 2013, appellants’ appealed the court’s order granting reconsideration and deeming the sheriff’s sale of January 8, 2013 valid to the Commonwealth Court. Appeal to Commonwealth Court (03/21/2013). The court ordered appellants to file of record a concise statement of matters complained of (“1925(b) statement”) pursuant to Pa.R.A.P. 1925(b). Order entered by J. Tucker (03/26/2013). Appellants filed their 1925(b) statement. 1925(b) statement (04/15/2013), wherein stating, verbatim, renumbered for clarity:

(1) The trial court erred in granting plaintiff’s motion for reconsideration of the February 12, 2013 order setting aside the sheriff’s sale before defendant appellants had an opportunity to answer. Plaintiff filed a motion for reconsideration on February 22, 2013 and the trial court granted the motion on February 26, 2013.
(2) The trial court erred in granting plaintiff’s motion for reconsideration of the February 12, [] order without requiring moving to prove an error of law.
(3) The trial court erred in granting plaintiff’s motion for reconsideration of the February 12,2013 order without requiring plaintiff to disclose new facts not available at the time that the original motion to set aside sheriff’s sale was considered.
(4) The trial court erred in finding that the sale of 4000 Gypsy Lane, Unit 245 in April 2012 had not been stayed, continued, postponed, or adjourned.
(5) The trial court erred in not finding that Pa.R.C.P. 3129.3 governed the sheriff’s sale of4000 Gypsy Lane, Unit 245 on January 8, 2013.
(6) The trial court erred in not finding that Pa.R.C.P. 3129.1 and 3129.2 applied to the sheriff’s sale of 4000 Gypsy Lane, Unit 245 on January 8, 2013.
(7) The trial court erred in finding that defendants did not need to be noticed on the sheriff’s sale of 4000 Gypsy Lane, Unit 245 on January 8, 2013.
(8) The trial court erred in finding that mortgagees and additional entities other than the defendants, such as PNC mortgage, did not need to be notified of the sheriff’s sale of 4000 Gypsy Lane Unit 245 on January 8, 2013.

1925(b) statement (04/15/2013).

A discussion ensues:

II. LEGAL ANALYSIS

a. The Court properly granted Appellee’s Motion for Reconsideration.

To the extent that appellants’ seek to appeal the court’s decision to grant reconsideration of a previous decision, the court’s decision is non-reviewable. Pursuant to the Pennsylvania Rules of Appellate Procedure, the court may grant reconsideration of a previous order. Pa.R.A.P. 1701(b)(3). Where a court grants reconsideration, as here, the court may either reaffirm its prior determination or overrule its prior determination. Id. Either way, the court’s decision to grant reconsideration in and of itself is non-reviewable on appeal. Moore v. Moore, 634 A.2d 163, 166 (Pa. 1933)(stating that “A motion for reconsideration is addressed to the sound discretion of the trial court....”); Estate of Haiko v. McGinley, 799 A.2d 155, 158-159 (pa. Super. 2002). Simply put, the court did not err in its decision to grant appellee’s motion for reconsideration.

b. However, the court having granted appellee’s motion for reconsideration and having reversed its earlier decision without a hearing on the same, or without giving appellant the opportunity to answer, the court recommends remand of this matter.

Pursuant to the Philadelphia County Court Rules:

Motions for reconsideration shall be forwarded to the appropriate judge immediately upon filing, and the filing party must serve a copy of the motion as provided in subsection (b)(3)(C). In appropriate cases, the assigned judge may enter a preliminary order vacating the order in question pending receipt of the response to the motion.

Phila. Civ.R. *208.3(a)(3)(emphasis added). Unlike other types of motions and petitions, motions for reconsideration are neither automatically scheduled for a rule to show cause hearing, nor are held for response before they are assigned to the appropriate court in Philadelphia County. Pa.R.C.P. 206.1; Phila. Civ.R. *206.4(c)(“Rule to show cause. Issuance as of course. Form of order. Stay.”); Phila. Civ.R.*208.3(a)(3); Pa.R.C.P. 208.3. Nevertheless, Philadelphia County court of common pleas civil administration imposes a two-day hold on motions for reconsideration before assigning the motions to the court for disposition. Despite the local Philadelphia County rule allowing motions for reconsideration to be assigned to the court without an automatic hearing or response, pursuant to the Pennsylvania rules of civil of procedure:

Except as otherwise provided in subdivision (b), the court shall initially consider a motion without written responses or briefs. For a motion governed by this subdivision, the court may not enter an order that grants relief to the moving party unless the motion is presented as uncontested to the other parties to the proceeding are given an opportunity for an argument.

Pa.R.C.P. 208.3. Here, once the court determined that it would grant appellee’s motion for reconsideration and that there was the possibility that the court would overrule its previous order granting relief in favor of appellant, the court should have scheduled a rule to show cause hearing on the motion at issue, which was appellant’s motion to set aside sheriff’s sale.

Appellant charges error against the court for not scheduling a hearing or otherwise giving appellant the opportunity to answer appellee’s motion for reconsideration. The court notes that appellee’s motion for reconsideration was assigned to the court two (2) days after it was filed. The court granted appellee’s motion for reconsideration the next day, which means that appellant had three (3) days to respond to appellee’s motion for reconsideration. Therefore, technically, appellee’s motion for reconsideration was presented as “uncontested” to the court for disposition pursuant to Pa.R.C.P. 208.3. However, because this court rules on outstanding motions no later than twenty-four (24) hours after the motions are assigned, the court accepts appellant’s contention that it did not have the opportunity to answer appellee’s motion for reconsideration. The court notes that a suggestion of bankruptcy was filed in this matter on March 9,2012; there is no indication as to the current status of the suggested bankruptcy. Suggestion of bankruptcy filed (03/09/2012). Therefore, the court recommends that this matter be stayed by the Commonwealth Court pending resolution of the bankruptcy. In lieu of the staying the matter, the court recommends that this matter be remanded so that the court can schedule a rule to show cause hearing on why appellant’s motion to set-aside sheriff’s sale should not be granted.

III. Conclusion

Due to the swiftness with which this court disposes of outstanding motions, the record supports appellant’s allegation that it did not have time to respond to appellee’s motion for reconsideration. Although the court was well within its discretion to grant appellee’s motion for reconsideration, the court should have given appellant an opportunity to respond to the motion for reconsideration pursuant to Pa.R.C.P. 208.3, especially since the court deemed appellee’s motion for reconsideration as meritorious. The court recommends remand of this matter to schedule a rule on the motion at issue, appellant’s motion to set aside sheriff’s sale.