author: WORTHINGTON, J,

text:
    Commonwealth v. Nyamwange

      C.P. of Monroe County,
    no. 1696 CR 2006.

      Michael Rackeczweski, assistant district attorney, for Commonwealth.

      James A. Swetz, for defendant.
    April 29, 2008
   WORTHINGTON, J,

OPINION IN SUPPORT OF ORDER PURSUANT TO Pa.R.A.P. 1925(a)

This matter comes before this court on Richard Nyamwange’s, (defendant), appeal pursuant to Pa.R.A.P. 1925(b). The procedural history of the case is summarized as follows. On November 25, 2006, a criminal complaint was filed charging the defendant with one count of rape by forcible compulsion; one count of sexual assault; one count of aggravated indecent assault; and two counts of indecent assault. Defendant was subsequently arrested on November 25, 2006. The charges arose from an incident on November 22,2006, in which defendant sexually assaulted the victim in the loft of his residence at 39 Oak Lane in East Stroudsburg after she had arrived there to be paid for office work she had completed for defendant. On December 12,2006, a preliminary hearing was held before Magisterial District Judge Michael R. Muth. At the conclusion of testimony, District Judge Muth bound over the charges. The charges were included in a criminal information filed by the Commonwealth on January 8, 2007.

On February 7,2007, defendant filed a timely omnibus pretrial motion. Included in the omnibus motion was a motion to exclude, motion to suppress, two motions to compel and a motion for written proffer. A hearing on defendant’s omnibus pretrial motion was held on March 19, 2007, at which time counsel made brief oral argument. On April 24,2007, by opinion, we denied all motions but the two motions to compel.

On September 10, 2007, after a three-day trial, a jury convicted defendant of one count of sexual assault, a felony in violation of 18 Pa.C.S. §3124.1, one count of aggravated indecent assault, a felony in violation of 18 Pa.C.S. §3125(a)(1) and two counts of indecent assault, a misdemeanor, in violation of 18 Pa.C.S. §3126(a)(1). Defendant was acquitted of the charge of rape by forcible compulsion.

On February 1, 2008, following a hearing and after considering the pre-sentence investigation that was prepared by the Monroe County Probation Department, the court sentenced defendant, inter alia, to undergo a period of incarceration in a state correctional institution of not less than two and a half years (30 months) nor more than five years (60 months).

The defendant filed a notice of appeal with the Superior Court on February 15,2008. Accordingly, on February 19, 2008, we ordered that the defendant file a statement pursuant to Pa. R.A.P. 1925(b) within 21 days. Said statement was filed by the defendant on March 5, 2008. We now submit this opinion in accordance with Pa.R.A.P. 1925(a).

In his 1925(b) statement, the defendant raised three issues: First, the defendant argues that because the defendant’s theory of defense was that the victim lied to cover a consensual encounter and avoid admitting her infidelity to her boyfriend, “the trial court erred by restricting the defense’s cross-examination of the victim, her boyfriend, the Commonwealth’s DNA expert and the SAFE nurse”; second, the defendant argues that the “trial court erred in not reading defendant’s points for charge nos. 2, 3, 4, 5, 6, 7 and 8 ...”; and third, he argues that “the trial court erred in not granting the defendant’s omnibus pretrial motion to suppress the tape-recorded conversation and evidence obtained by search warrant.”

As to the first and third issues raised by the defendant, the court notes that both were addressed by this court in its opinion on defendant’s omnibus pretrial motion dated April 24,2007, which we incorporate herein. Thus, no further opinion will be filed on these issues.

As to the second issue, the defendant argues that the “trial court erred in not reading defendant’s points for charge nos. 2, 3, 4, 5, 6, 7 and 8.” The defendant asked for a total of 11 charges in writing. (Defendant’s points for charge, 9/11/07.) On September 10,2007, outside the presence of the jury, we discussed with counsel for the defendant and the Commonwealth all points for charge submitted by each side. (N.T., 9/10/07, 11-18.) We granted four of the defendant’s requests, namely charges 1,9,10 and 11. (N.T., 9/10/07,12-13.) As such, those charges will not be discussed.

On further review prompted by defendant’s appeal, we strongly believe that under the facts of this case, the denial of points for charge numbers 2 through 8 were appropriately decided.

Generally, for information on charging the jury, we look to Pa.R.Crim.P. 647 for guidance. It states:

“(A) Any party may submit to the trial judge written requests for instructions to the jury. Such requests shall be submitted within a reasonable time before the closing arguments, and at the same time copies thereof shall be furnished to the other parties. Before closing arguments, the trial judge shall inform the parties on the record of the judge’s rulings on all written requests. The trial judge shall charge the jury after the arguments are completed.

“(B) No portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate. All such objections shall be made beyond the hearing of the jury ....” Pa.R.Crim.P. 647.

“A trial court, however, is not required to affirm all requested instructions, even though the statement of law contained therein to be correct.” Commonwealth v. Whitner, 278 Pa. Super. 175, 182, 420 A.2d 486, 490 (1980). “It is free to use its own form of expression so long as it adequately, accurately, and clearly explains the principle of law for the jury.” Id. “Moreover, when evaluating the charge, we must view the charge as a whole.” Commonwealth v. Hamilton, 766 A.2d 874, 878 (Pa. Super. 2001).

In the instant case, defendant’s points for charge 2 through 6 were denied because they were adequately covered in the court’s charge as stated in our September 10, 2007 discussion with counsel in chambers. (N.T., 9/10/07,12-13.) The record shows our charges fully and adequately covered the substance of the requested charge. As to defendant’s point for charge 2, we instructed the jury that they must be “satisfied beyond a reasonable doubt that the defendant engaged in sexual intercourse by force...” and “you may consider evidence about the kind and amount of force and the extent of the victim’s resistance ...(N.T., 9/10/07, 86.) Concerning defendant’s point for charge 3, we instructed the jury adequately on what is required for forcible compulsion in order for them to make an informed decision. A review of the defendant’s requested points reveals that points 2 and 3 are essentially the same as the actual charge.

Defendant’s point for charge 4, 5 and 6 all deal with the issue of consent. On points 4 and 5, we instructed the jury “a defendant acts recklessly with regard to an alleged victim’s nonconsent if he consciously disregards a substantial an unjustifiable risk that the victim is not consenting to the...” intercourse, penetration or contact. (N.T., 9/10/07, 89, 90, 91.) On point 6, we stated to the jury that “the burden is on the Commonwealth to prove to you also, the same standard, beyond a reasonable doubt, that the alleged victim did not give, did not convey, legally effective consent.... Thus, you cannot convict the defendant unless you are satisfied beyond a reasonable doubt that Ms. Pannella did not give a legally effective consent.” (N.T., 9/10/07,93.) Again, a review of the defendant’s requested points for charge reveals that points 4, 5 and 6 are essentially the same as the actual charge read to the jury. As stated earlier, the trial court is free to use its own form of expression so long as it adequately, accurately, and clearly explains the principle of law for the jury. We believe that we have done so.

“Defendant’s point for charge 7 was denied because the facts did not warrant the mistake of fact instruction. It is well established that a bona fide, reasonable mistake of fact may, under certain circumstances, negate the element of criminal intent. 18 Pa.C.S. §304 (providing, inter alia, that ignorance or mistake as to a matter of fact, for which there is a reasonable explanation or excuse, is a defense if ‘the ignorance or mistake negatives the intent, knowledge, recklessness, or negligence required to establish a material element of the offense’”). Hamilton, at 878. When evidence of a mistake of fact is introduced, the Commonwealth retains the burden of proving the necessary criminal intent beyond a reasonable doubt. Id. at 879. “In other words, the Commonwealth must prove either the absence of a bona fide, reasonable mistake, or that the mistake alleged would not have negated the intent necessary to prove the crime charged.” Id.

In the case at bar, no evidence was presented to show that, at the time of the incident, defendant reasonably but mistakenly believed that the victim consented to the prohibited sexual acts. As such, we denied defendant’s point for charge 7.

Finally, defendant’s point for charge 8 was denied because, in conjunction with 18 Pa.C.S. §3107, any reliance on the victim’s submission to intimate touching without protest or physical, resistance, is misplaced. Section 3107 states, “The alleged victim need not resist the actor in prosecutions under this chapter: Provided, however, That nothing in this section shall be construed to prohibit a defendant from introducing evidence that the alleged victim consented to the conduct in question.” 18 Pa.C.S. §3107.

Also, in our charge to the jury, we stated, “there is no requirement that accused employ or threaten force likely to cause serious bodily injury or that the victim put up a fight or resist... you may consider the evidence about the kind and amount of force and the extent of the victim’s resistance, along with all of the other evidence and circumstances ... and that the defendant did that by force that would prevent resistance of a person of reasonable resolution.” (N.T., 9/10/07,87-88.) This instruction was repeated to the jury two subsequent times.

A review of the defendant’s requested points reveals that point 8 is essentially the same as the actual charge and as such, no further instruction was warranted. We stand behind our decision to deny defendant’s points for charge 2 through 8.

In light of the foregoing, we believe that the opinion (dated April 24, 2007) and the decision on defendant’s points for charge (dated September 11, 2007) address defendant’s appeal and that the conviction and sentence should stand.


source: Caselaw Access Project

author: KNISELY, J,

license: Public Domain

text:
    Citimortgage Inc. v. Nightingale

      C.P. of Lancaster County,
    no. CI-07-00323.

      Francis Hallinan, for plaintiff.

      James A. Nettleton Jr., for defendants.
    December 9, 2008
   KNISELY, J,

This opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure. In their appeal, defendants allege that they raised factual issues in their answer and new matter, rendering the grant of summary judgment premature.

BACKGROUND

Plaintiff/appellee, Citimortgage, Inc., initiated this suit by filing a complaint for mortgage foreclosure on January 11, 2007. In response to defendants’ filing of preliminary objections, Citimortgage filed two amended complaints. Plaintiff’s second amended complaint alleged that defendants executed a mortgage of which plaintiff is the legal owner. Second amended complaint, at 6, ¶¶2-3. Defendants own property that is subject to the mortgage and the mortgage went into default when defendants failed to make their monthly payment on September 1, 2006. See id. at 2, ¶¶2, 4, 5. According to the complaint, defendants owe a principal balance of $82,918.88 plus interest, attorney’s fees, late charges, suit costs, title search costs, and escrow deficits for a total amount due of $87,647.28.

On July 13, 2007, defendants filed their answer and new matter. Defendants admitted that they made and executed the mortgage upon the property described in plaintiff’s complaint. See defendants’ answer and new matter, at 2, ¶¶2-4. Defendants denied the mortgage being in default, stating that “[ajfter reasonable investigation, defendants are unable to admit to the truth and veracity of this allegation.” See id. at 2, ¶5. Additionally, defendants denied the amount due. See id. at 2, ¶¶6-7. Defendants listed defenses in their new matter. Among other assertions, they claim that an assignment was not obtained from the original creditor and that there is no privity between them and plaintiff. See defendants’ answer and new matter, at 3-4, ¶¶13-15, 20-21. They allege that plaintiff carried out fraudulent transactions with defendants by not timely posting payments, causing late fees to defendants’ account, deducting late fees, and causing defendants’ default. See id. at 4, ¶16. Defendants also add that “plaintiffs may have violated” the federal Fair Debt Collections Practices Act, the federal Fair Debt Reporting Act, and Consumer Protection Laws. See id. at 5, ¶¶24-26.

This court granted plaintiff’s motion for summary judgment by its order of August 25, 2008. Defendants’ appeal followed.

DISCUSSION

Summary judgment is permitted where there is no genuine issue of material fact and the moving party is entitled to prevail as a matter of law. New York Guardian Mortgage Corporation v. Dietzel, 362 Pa. Super. 426, 429, 524 A.2d 951, 952 (1987). The court views the record in a light most favorable to the non-moving party. Id. The non-moving party seeking to avoid summary judgment cannot rest solely upon the averments in their pleadings. Washington Federal Savings and Loan Association v. Stein, 357 Pa. Super. 286, 289, 515 A.2d 980, 981 (1986). The non-moving party bears the burden of demonstrating a genuine issue for trial through affidavits, admissions, answers to interrogatories, or other specific factual evidence. See id. at 292, 515 A.2d at 983; see also, Pa.R.C.P. 1035(d).

Entry of summary judgment is appropriate in a mortgage foreclosure action where mortgagors “admit that the mortgage is in default, that they have failed to pay interest on the obligation, and that the recorded mortgage is in the specified amount.” Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa. Super. 1998) (citing Landau v. Western Pennsylvania National Bank, 445 Pa. 217, 225-26, 282 A.2d 335, 340 (1971)). Additionally, averments in a responsive pleading are deemed admitted when not denied specifically or by necessary implication. Pa.R.C.P. 1029; see also, Cercone v. Cercone, 254 Pa. Super. 381, 387, 386 A.2d 1, 3 (1978) (finding defendant was required to specifically deny factual allegations in complaint where defendant is in position to know truth or falsity of allegation). A general denial or demand for proof will be deemed an admission. Id. More specifically, in a mortgage foreclosure action, the mortgagors, aside from the mortgagee or assignee, are the only parties with sufficient knowledge to base a specific denial. Deitzel, 362 Pa. Super. at 429, 524 A.2d at 952; see also, Cercone, 254 Pa. Super. at 388, 386 A.2d at 4 (“merely averring lack of knowledge is ineffective when it affirmatively appears defendant had sufficient knowledge on which to base an admission or specific denial”).

Here, the requirements for granting summary judgment were met. Defendants admitted they executed the mortgage described in plaintiff’s complaint. Defendants’ claim that they are without knowledge to deny the default of their mortgage is effectively an admission. Defendants, as a party to the mortgage they executed and signed, are in the position to respond with specificity and they failed to do so. Defendants neither aver that payment was made nor offer any other specific evidence; thus, defendants admitted their mortgage is in default. Similarly, the amount of default is deemed admitted because defendants failed to respond with specific facts contradicting plaintiff’s affidavit, filed by Citimortgage’s assistant vice president, attesting to the amounts due on the mortgage. See Stein, 357 Pa. Super. at 292, 515 A.2d at 983 (summary judgment supported where mortgagors failed to offer evidence contradicting treasurer’s affidavit).

Additionally, defendants’ bald assertions in their new matter failed to establish a genuine issue of fact or support a defense to plaintiff’s prima facie case. Defendants’ new matter consists of 17 paragraphs listing the following averments:

(1) Plaintiff instituted this action without first acquiring an assignment.

(2) Plaintiff fraudulently caused late fees, deducted late fees, and caused default.

(3) Plaintiff’s actions caused defendants to suffer a low credit rating.

(4) Plaintiff’s complaint fails to state a cause of action upon which relief can be granted.

(5) There is no privity of contract between plaintiff and defendants.

(6) Plaintiff has not pled or demonstrated proof of defendant’s signature on a contract.

(7) Plaintiff may have violated the federal Fair Debt Collections Practices Act, the federal Fair Debt Reporting Act, and/or Consumer Protection Laws.

See defendants’ answer and new matter, at 3-5, ¶¶12-28. Plaintiff established the necessary elements for a foreclosure action, attached a copy of the mortgage and assignment, and the defendants, in response, failed to submit any facts to the contrary. Defendants’ pleadings were general assertions unsupported by any facts; accordingly, they were dismissed. See Corestates Bank v. Cutillo, 723 A.2d 1053, 1057 (Pa. Super. 1999).

For the foregoing reasons, this court’s grant of summary judgment in favor of plaintiff is supported and defendants’ appeal should be dismissed.

      . Citimortgage is the assignee of the mortgage that is the subject of this suit. Pursuant to an assignment dated December 21, 2006, the mortgage executed by Ian and Rose Mary Nightingale to Mortgage Electronic Registration Systems Inc., recorded in Lancaster County on December 29, 2003, was assigned to Citimortgage.

      . On February 22, 2007, defendants filed preliminaiy objections to plaintiff’s complaint wherein defendants listed the following objections: (1) failure of the complaint to conform to Pa.R.C.P. 1019(i)and 1028(a)(2) by not attaching the mortgage contract; and, (2) failure of the complaint to conform to 1028(a)(2) by not providing proper notice of legal help. On May 24,2007, Citimortgage filed an amended complaint that compl ied with the rules and included the mortgage agreement as an attachment. In response, on May 1, 2007, defendants filed preliminary objections to the amended complaint and demurrer, listing the following objections: (1) the amended complaint does not contain a caption; (2) the prayer for relief in the amended complaint lists $878,647.28, an amount not supported in the body of the complaint; and (3) the amended complaint does not contain a certificate of service. The defendants also requested this court dismiss plaintiff’s complaint. On May 29,2007 plaintiff filed a second amended complaint that included a caption and corrected the prayer for relief. On June 18,2007, plaintiff filed a certificate of service.

      . This court issued an order dated September 16, 2008 clarifying two conflicting orders. As explained in that order, the file presented to the court at the date of the earliest order did not contain plaintiff’s brief in support or significant attachments. As a result, this court denied plaintiff’s summary judgment motion by order of April 26,2008. Then, this court received the completed file and granted summaty judgment by order of August 25, 2008. In its order of September 16, 2008, this court clarified the two conflicting orders and reconfirmed the order of August 25, 2008, which granted summary judgment.

      . Defendants’ averments have been reworded and combined for brevity.


author: WECHT, J.,

text:
    Bjerke v. Bjerke

      C.P. of Allegheny County,
    no. FD 04-8125-003.

      Charles F. Pegher and Rebecca Morris-Chatta, for plaintiff.

      Daniel H. Glasser, for defendant.
    October 14, 2008
   WECHT, J.,

This opinion addresses the issues of whether defendant Laura Rouseau (Wife) may testify at a hearing to re-open equitable distribution and whether this court may re-open equitable distribution after Richard J. Bjerke (Flusband)’s death.

BACKGROUND

Elusband and Wife married on October 11,1997. One child was bom during the marriage. Husband and Wife separated on September 23,2004, and divorced on June 5,2007. Husband married Elizabeth Ferrell (Ms. Bjerke) on July 13, 2007.

On May 7,2007, Husband and Wife executed a consent order for equitable distribution. Husband agreed to pay Wife $119,276 in cash and $100,000 in a transfer from his retirement accounts. Wife agreed to a termination of the alimony/alimony pendente lite payments that she was receiving. Husband made the $119,276 cash payment. Husband was to inform Wife’s counsel which retirement account was to be used for the $100,000 transfer. Husband complied with this requirement as well. However, no QDRO was executed, and the transfer did not occur.

On April 12,2008, Husband took his own life. On May 23,2008, Wife presented a motion for entry of qualified domestic relations order. A hearing was scheduled on the matter. On June 25,2008, this court denied Wife’s request for a nunc pro tunc QDRO, but scheduled a hearing on Wife’s request to re-open equitable distribution. That hearing occurred on September 29, 2008.

DISCUSSION

The first issue to address is whether this court may consider testimony Wife gave at the September 29 hearing. Ms. Bjerke objected to Wife’s testimony as being precluded by the Dead Man’s Act. 42 Pa.C.S. §5930. This court denied Ms. Bjerke’s objection without prejudice, allowed Wife to testify, and preserved Ms. Bj erke’s objection so that her cross-examination did not constitute a waiver of the objection, and so that this court could strike the testimony (in whole or in part) if appropriate after taking the matter under advisement.

Under the Dead Man’s Act, a witness is disqualified from testifying in circumstances where: the deceased had an interest in the matter at issue; and the interest of the witness is adverse to the decedent’s estate; and the right of the deceased has passed to a party of record representing the estate. In re Estate of Rider, 487 Pa. 373, 377, 409 A.2d 397, 399 (1979). The test for interest is whether a witness will gain or lose as a direct legal effect of the judgment. In re Groome's Estate, 337 Pa. 250, 252, 11 A.2d 271, 273 (1940). An interest is adverse when the immediate result of the particular suit would cause a loss or gain to the witness, not when the effect of the particular suit would arise in other possible actions. Billow v. Billow, 360 Pa. 343, 347, 61 A.2d 817, 819 (1948).

Generally, in cases where one spouse has died, testimony about a postnuptial agreement is precluded. In re Estate of Hartman, 399 Pa. Super. 386, 394, 582 A.2d 648, 652 (1990). Where the parties had an agreement to disclaim their elective shares, the husband could not testify about the validity of the agreement after the wife’s death. Id. In the Hartman case, the husband had the burden to show the agreement was invalid before he could attempt to elect against the estate of the wife. But the husband was precluded from testifying about the validity of the agreement, particularly with respect to whether there was full and fair disclosure.

The instant case is similar. Before she can re-open equitable distribution, Wife first must show that the agreement was not fulfilled. The Dead Man’s Act applies to “matters occurring before the death.” 42 Pa.C.S. §5930. Wife’s testimony regarding the attempt to obtain the QDRO, and about anything else that occurred after Husband died, is admissible. The other testimony by Wife is excluded, and accordingly stricken from the record.

The second issue is whether equitable distribution should be re-opened. In the Reese case, there was an equitable distribution order upon which both parties relied and acted prior to the death of the wife. Reese v. Reese, 351 Pa. Super. 521, 522, 506 A.2d 471, 472-73 (1986). Because the parties willingly agreed to the order and had acted upon it, the wife’s death, prior to entry of a divorce decree, did not affect the agreement. Id. at 529, 506 A.2d at 475. Similarly, where the husband died after a marital settlement agreement and consent order had been entered, but prior to the divorce decree, the contract was found to be enforceable. In re Estate of Bullotta, 575 Pa. 587, 592, 838 A.2d 594, 597 (2003). InBullotta, the Supreme Court determined that the action required under the contract was not unique to the individual, and that the estate could complete the contract such that the contract was not voided by the husband’s death. Id.

These cases are distinguishable from the case at bar. In this case, the divorce decree issued before Husband died. Husband’s estate cannot complete the agreement. The estate cannot enter a QDRO, because the asset already has passed to the beneficiaries.

The crux of the issue — vigorously disputed by Wife and Ms. Bjerke — is whether this court has the authority to re-open equitable distribution. Most cases indicate that equitable distribution cannot be re-opened beyond the 30-day limit allowed by the rules. See e.g., Ratarsky v. Ratarsky, 383 Pa. Super. 445, 557 A.2d 23 (1989). Other cases, involving assets that were not included in equitable distribution, also have concluded that equitable distribution should not be re-opened. See e.g., Major v. Major, 359 Pa. Super. 344, 518 A.2d 1267 (1986); Beamer v. Beamer, 330 Pa. Super. 154, 479 A.2d 485 (1984).

Two other cases, however, suggest that a trial court has the power to re-open equitable distribution in appropriate circumstances. Relying on 23 Pa.C.S. §3104 (a)(1), which provides continuing jurisdiction over the determination and disposition of property rights between spouses, 23 Pa.C.S. §3502(e)(4), which allows for an order for transfer or sale of property when a party does not comply with equitable distribution, and Pa.R.C.P. 1920.43, which allows the trial court to use equity powers to grant petitions for special relief, appellate courts approved re-opening of equitable distribution in Wagoner v. Wagoner, 538 Pa. 265, 648 A.2d 299 (1994), and Romeo v. Romeo, 417 Pa. Super. 180, 611 A.2d 1325 (1992).

In view of these latter cases, it appears that this court’s equity powers properly may be invoked now to modify equitable distribution. There is an issue of equity here. Wife was deprived of almost half her equitable distribution share solely because Husband committed suicide before distribution could be fully effectuated. In Romeo and Wagoner, there was less than a year between the decree and the request for modification. Here, slightly over a year has passed. In Romeo and Wagoner, the need for the modification — a change in the housing market and loss of a job, respectively — came through no fault of the requesting party. Here, Wife is requesting the modification because of Husband’s death, which occurred through no fault of hers. The cases suggest appellate willingness to effectuate the parties’ agreements even after the death of a party.

This appears to be an issue of first impression. As a matter of equity, and absent compelling distinction between the instant case and the Romeo and Wagoner cases, the equitable distribution order herein may be reopened.

It bears noting that both options present serious practical difficulties. If equitable distribution is not re-opened, Wife will have to pursue her claim among the other various creditors in what Ms. Bjerke has admitted is an insolvent estate. On the other hand, a new equitable distribution proceeding will be problematic. The Dead Man’s Act presumably will preclude Wife from testifying on most issues. It also is not clear that Ms. Bjerke will have necessary or relevant information.

On balance, as discussed, re-opening equitable distribution appears to be the best way (albeit an imperfect one) to try to work some measure of economic justice as between Husband and Wife. In the real world, the practical difficulties mean that neither this option (nor the estate litigation option this court has declined) will be able to render anything approaching perfect justice.

This court will grant Wife’s motion. An order follows.

ORDER

And now, October 14,2008, following record hearing on September 29,2008, and in accordance with the foregoing opinion, it is hereby ordered that:

(1) Plaintiff’s Dead Man’s Act objection to Wife’s September 29, 2008 testimony is granted in part and denied in part, nunc pro tunc, and Wife’s testimony is stricken in part, as set forth in the foregoing opinion; and

(2) Wife’s request to re-open equitable distribution is granted; and

(3) A full-day hearing on equitable distribution is scheduled on December 4,2008, beginning at 9:30 a.m., in Room 4029,440 Ross Street, Pittsburgh, Pennsylvania 15219;and

(4) A pretrial order will follow.

      . However, a sister did not have an adverse interest when her testimony would help her brother claim money and the sister would only get a share if the brother chose to give it. Commonwealth Trust Co. v. Szabo, 391 Pa. 272, 282, 138 A.2d 85, 89 (1957).


author: RIZZO, J,

text:
    Cohen v. Quarry Estates L.L.C.

      C.P. of Philadelphia County,
    March Term 2004,
    no. 3780.

      Stanley R. Krawkower, for plaintiffs.

      Daniel E. Rhynhart, for defendant.
    October 27, 2006
   RIZZO, J,

Plaintiffs, David Cohen et al., appeal from an order of this court of March 17, 2005, which granted reconsideration and vacated paragraph (1) of its February 17, 2005 order, effectively revoking the pedestrian easement, but reaffirmed paragraphs (2) and (3) permitting defendants to continue construction on their property, and denying plaintiffs’ request for an easement to park on the property of the defendants.

FACTS AND PROCEDURAL HISTORY

Plaintiffs are residents of Elfreths Alley, the neighboring street to the rear of the plot of land owned and developed by defendant Quarry Estates L.L.C. The property in question was formerly the parking lot of Casani Candy, a business which had been located there from 1973 until November of 2001. (Plaintiffs’ brief for injunction.) Plaintiffs assert that they parked their cars in the parking lot of Casani Candy and also used the lot for pedestrian ingress and egress between their homes and Quarry Street before the property passed to defendants, who are currently constructing town homes on the property.

Plaintiffs filed a petition for special injunction (temporary restraining order) on March 19, 2004, asserting that they have established a pedestrian easement of approximately four to seven feet north of plaintiffs’ rear north property line, and a pedestrian passageway “to the east of defendant’s western property line” which would provide plaintiffs with access to Quarry Street. Plaintiffs asked the court for a special injunction before hearing, a temporary injunction after hearing, and ultimately a permanent injunction. (Complaint.) Not until November of 2004, after previous stipulation by the parties, did plaintiffs file an amended complaint to include their claim for a parking easement on defendant’s property. (Amended complaint.)

Following briefing and extensive hearings on both matters, this court on February 17,2005 issued an order, which in paragraph (1) granted plaintiffs, as requested in the complaint, a pedestrian easement in the area “contiguous to the rear of plaintiffs’ properties, and along the westerly side of defendant’s properties, leading to and from the passageway at the rear of the plaintiffs’ properties, providing plaintiffs access to and from Quarry Street.” The order also permitted defendant to continue construction on the property and prohibited plaintiffs from parking on the property.

Following this order, both parties requested reconsideration from the court concerning paragraph (1) of the order, due to the fact that defendant had already completed construction of a town home that abutted the westerly property line, making an easement to Quarry Street impossible. Plaintiffs asked this court to amend the order to instead grant an easterly easement. Defendant objected to this request, as an easterly easement would interfere with the construction of a fifth townhouse, and would conflict with the February order’s grant of permission to continue construction on the property.

Following oral argument, on March 17, 2005, this court issued an order which vacated paragraph (1) of the order of February 17,2005, and upheld the remainder of the February order. The intention of this court in vacating paragraph 1 was to allow further proceedings on the pedestrian easement issue, after which time a final order on that matter would be rendered. Instead, on April 18, 2005, plaintiffs filed a timely appeal with respect to the entire March order. At the direction of this court’s order of April 21, 2005, appellants filed a statement of matters complained of on appeal on May 3, 2005. On appeal, plaintiffs asserted that this court committed error in its March 17,2005 order which vacated paragraph (1) of its order of February 17,2005, which granted plaintiffs a pedestrian easement, and that this court further committed error by upholding in its March order paragraphs (2) and (3) of the February order, which permitted defendant to continue construction on the property, and which denied plaintiffs permission to park their vehicles on any part of the subject property at any time. On November 18,2005, this court filed an opinion in the instant matter, pursuant to Pa.R.A.P. 1925(a). On August 28, 2006, the Superior Court issued an order remanding the case to this court for the puipose of drafting an opinion to explain in detail what claims or parties remain, so as to support the rationale of this court’s opinion that the order in question is not a final order and to further explain the rationale for both vacating paragraph 1 of the February order, and denying any other form of relief.

LEGAL DISCUSSION

Preliminary Injunction

The standard for a preliminary injunction is outlined inPa.R.C.P. 1531 as follows:

“The prerequisites for issuing a preliminary injunction are: first, that it is necessary to prevent immediate and irreparable harm which could not be compensated by damages; second, that greater injury would result by refusing it than by granting it; and third, that it properly restores the parties to their status as it existed immediately prior to the alleged wrongful conduct. Even more essential however, is the determination that the activity sought to be restrained is actionable, and that the injunction issued is reasonably suited to abate such activity. And unless the plaintiff’s right is clear and the wrong is manifest, a preliminary injunction will not generally be awarded.” Wilkensburg Education Association v. School District of Wilkensburg, 542 Pa. 335, 337-38 n.2, 667 A.2d 5, 7-8 n.2 (1995), (quoting New Castle Orthopedic Associates v. Burns, 481 Pa. 460, 392 A.2d 1383 (1978)). Applying these prerequisites to the instant case: Plaintiffs have not established that they will suffer irreparable harm by no longer being able to park on defendant’s property. Their loss of free parking spaces can be easily compensated by monetary damages. Greater injury will most certainly occur to defendants if they are required to stop construction on their property and allow it to be used only for defendant’s convenience. Most importantly, the plaintiffs have failed to establish their entitlement to a parking easement on defendant’s lot, and that defendant’s conduct in improving their property is therefore wrongful.

Pedestrian Easement

Plaintiffs’ original complaint in equity, filed in March of2004, asserted that plaintiffs had established and were entitled to a pedestrian easement “across a portion of the rear of defendant’s property... and to an easement passageway to the east side of defendant’s westerly boundary.” (Complaint.) Despite this court granting plaintiffs’ request for an easement exactly as stated in their complaint, an easement along defendant’s western boundary leading to Quarry Street has become a factual impossibility. Defendant, by December of 2003, had already developed its property to the western edge of its boundary line, after beginning substantial excavation in July of 2003. (Testimony of Ronald Kushner, 10/29/2004, p. 66.) By all indications, had this court had the opportunity to preside over further proceedings, the result would have been the ultimate denial of plaintiffs’ requested relief. Therefore, this court recommends that plaintiffs’ prayer for relief with respect to the pedestrian easement be denied, or in the alternative, remanded to this court for a determination on the merits.

Parking Easement

Plaintiffs assert that this court committed error by failing to find that they have a prescriptive easement for parking on defendant’s property. The February 17 order denied plaintiffs’ request for a parking easement, and also permitted defendant to continue construction on the property. The March 17 order upheld these provisions.

Plaintiffs’ requested relief in the form of a parking easement was properly denied, because plaintiffs failed to demonstrate the necessary elements to establish a prescriptive easement. A prescriptive easement is the right to the use of another’s property which is acquired by “adverse, open, continuous, notorious and uninterrupted use of the land for [a period of] 21 years.” Moore v. Duran, 455 Pa. Super. 124, 132, 687 A.2d 822, 826 (1996). The burden of proving a prescriptive easement is on the party seeking to enforce it. Keefer v. Jones, 467 Pa. 544, 548, 359 A.2d 735, 739 (1976). In order to acquire an easement by prescription, the evidence and proof thereof must be clear and positive. Adshead v. Sprung, 248 Pa. Super. 253, 256, 375 A.2d 83, 84 (1977).

Plaintiffs Cohen and Bradley, who have not themselves resided on Elfreths Alley for the required 21 -year period, could nonetheless meet the 21 -year requirement by “tacking” the possession of previous occupants. Stark v. Lardin, 133 Pa. Super. 96, 1 A.2d 784, 786 (1938). However, plaintiffs failed to establish with sufficient evidence that their predecessors used defendants’ property for parking their cars.

The Bradley plaintiffs have lived in their home in Elfreths Alley since 1991. Mrs. Bradley testified that she never met the previous homeowner, and did not know whether he had parked on defendant’s property. (Bradley’s testimony, October 13, 2004, p. 110.) Appellant Kettel, however, testified that the previous owner, Bill Lambert, did not own a car and did not park on the defendant’s property. (Kettel’s trial deposition, p. 58.) Therefore, the Bradley plaintiffs did not show the required 21 -year time period of use for a prescriptive easement.

The Cohen plaintiffs failed to clearly establish that their predecessors parked on defendant’s property. In fact, the Cohens failed to clearly establish who exactly their predecessors were. Mr. Cohen testified that he purchased the property from a couple named Stone and McCarthy, who had purchased the property from a Tom Halloran in 1986, who had purchased it from a Mr. Berger. (Testimony of David Cohen, October 13,2004.) Deeds presented by defendant indicate that McCarthy and Stone purchased the home from First Fidelity Bank in 1994, who purchased it from a Mr. Bourne, who had purchased it from Mr. Halloran in 1984. Moreover, Cohen does not know the exact dates in which previous owners or occupiers purchased or sold the property. (Cohen October 13 testimony.)

Even if the chain of occupation established by the Cohen plaintiffs is correct, the evidence presented that former occupants have parked on the property in question was not sufficient to establish a prescriptive easement. Mr. Cohen testified that he believed that his immediate predecessors, Stone and McCarthy, had parked on defendant’s property. He did not have first-hand knowledge of whether anyone else who had owned or occupied the house had parked on defendant’s property. (Cohen October 13 testimony.) No previous owner or occupier appeared as a witness to testify about their use or non-use of the lot. Therefore, it was not error for this court to find that the Cohen plaintiffs did not meet their burden of proving a prescriptive easement.

The Kettel plaintiffs did establish that they have used the property in question for parking for 21 years, as they have resided in their home on Elfreths Alley since 1975, and have used the property for parking since that time. Continuous use for 21 years, however, does not itself create a prescriptive easement. The use must also be adverse to that of the owner. Moore v. Duran, 455 Pa. Super. at 132, 687 A.2d at 826. Here, Kettel testified that he “believed he had permission” to park in the Casani Candy parking lot. (Kettel’s trial deposition, p. 54.) Permission from the owner negates the adversity requirement of a prescriptive easement. “If the use was merely permissive,... and not in any sense hostile or adverse, the claim of appellees to a prescriptive right must be rejected.” Stevenson v. Williams, 188 Pa. Super. 49, 52-53, 145 A.2d 734, 736 (1958). Therefore, the Kettel plaintiffs also failed to show that they have established a prescriptive parking easement over defendant’s land.

Furthermore, the prescriptive parking easement asserted by the plaintiffs is in actuality a claim for adverse possession of the defendant’s property. By claiming that they have established their right to park on the lot, plaintiffs are in effect asking for a court to prevent defendant, the property owner, from exercising its rights to the property. A prescriptive easement differs from adverse possession in that with an easement the claimant has made some use of the owner’s land, while adverse possession requires exclusivity and possession or occupation. Newell Rod and Gun Club Inc. v. Bauer, 409 Pa. Super. 75, 79, 597 A.2d 667, 669 (1991). Plaintiffs do not assert that they used the property in question to the exclusion of the owner, and do not claim that they have adversely possessed the property. Plaintiffs are not entitled to exclusive possession of the lot without establishing that they have met the requirements for a claim of adverse possession.

CONCLUSION

For the aforementioned reasons, paragraphs 2 and 3 of this court’s order of March 17, 2005 should be affirmed, and plaintiffs’ claim for a pedestrian easement as prayed for in the complaint and amended complaint should be denied.

      . Attached as exhibit “A” [not published herein].

      . Attached as exhibit “B” [not published herein].

      . Attached as Exhibit “C” [not published herein].

      . Plaintiffs in fact filed an amended complaint on November 24, 2004 to include their claim for a parking easement. At this time, plaintiffs’ erroneous request for a westerly pedestrian easement remained unchanged.