text:
    GMAC Mortgage Corporation v. Jennas

      Joseph P. Schalk, for plaintiff.

      JohnP O’Boyle, for defendant.
    December 29, 2010
   ZULICK, J.,

This matter is before the court for trial of a mortgage foreclosure action. The non-jury trial was scheduled for December 10, 2010. The parties presented a written stipulation of facts and exhibits in lieu of presenting testimony and have filed briefs. The facts of the case are as follows:

1. Defendant, Sharmilla Jennas, formerly Sharmilla Doodnauth, purchased the property at 20 Chatham Hill Road, Reeders, Pa. 18352 (hereinafter the “property”), on February 14, 2001 from Raintree Enterprises, Inc. for $296,057.00, as evidenced by the deed recorded February 16, 2001 in the recorder of deeds for Monroe County at instrument no. 200113333.

2. Before Ms. Jennas purchased the home, the property was appraised by Dominick Stranieri to have a market value of $312,000.00.

3. Ms. Jennas, entered into a purchase money mortgage with U.S. Mortgage Corporation in the amount of $266,400.00. The note that accompanied the purchase money mortgage had a 9.75 percent interest rate and this sum was payable in equal, consecutive, monthly installments of principal and interest of approximately $2,215.78.

4. The Jennases obtained an appraisal of the property from Thomas Bruneo on May 27, 2001, which found the market value of the home to be $243,500.00.

5. The parties stipulated to the admission of a copy of the Bruneo appraisal as defendant’s Exhibit D-l.

6. The appraisal completed by Thomas Bruneo clearly states, in part, “This appraisal may not be used in support of a loan.”

7. In early 2002, the Jennases applied for a refinancing of the purchase money mortgage with plaintiff GMAC Mortgage Corporation dba Ditech.com (GMAC).

8. At no time during the refinancing process did the Jennases advise GMAC of the Bruneo appraisal or its finding.

9. On March 25, 2002, the Jennases made, executed and delivered a mortgage on the property, which mortgage was recorded in the recorder of deeds of Monroe County on May 16, 2002 in book 2122, page 840.

10. The parties stipulated to the admission of the certified copy of the mortgage as plaintiff’s Exhibit P-1.

11. On March 25, 2002, Sharmilla Jennas executed a promissory note in favor of GMAC in the principal sum of $266,400.00. This sum was payable in monthly installments of principal and interest of approximately $1,727.87. The interest rate was fixed at 6.75 percent by the terms of the note.

12. The parties stipulated to the admission of the copy of the note as GMAC’s Exhibit P-2.

13. By virtue of refinancing, the Jennases realized an immediate reduction in their monthly mortgage payments of $487.91.

14. Defendant Sharmilla Jennas transferred title of the property to defendants, Delano Jennas and Sharmilla Jennas, by deed recorded May 16, 2002 in the recorder of deeds for Monroe County at instrument no. 200219600.

15. GMAC did not perform a new appraisal of the property at the time of refinancing as one was not required for the refinancing pursuant to the underwriting guidelines as they existed at that time. GMAC relied upon the appraisal of the home completed by Dominick Stranieri.

16. Mortgage Electronic Registrations Systems, Inc. as nominee for GMAC delivered an assignment of mortgage to GMAC, which assignment was recorded with the recorder of deeds of Monroe County on March 7,2007 in Book 2298, Page 4935.

17. The parties stipulated to the admission of the certified copy of the assignment to GMAC mortgage corporation as plaintiff’s exhibit P-3.

18. Defendants’ last mortgage payment in the amount of $1,804.92 was made on September 1,2003 and applied to the September 2003 contractual mortgage payment.

19. GMAC did not proceed with its complaint in mortgage foreclosure for a period in excess of two years due to the pending investigation and subsequent litigation against Dominick Stranieri and Raintree Homes, Inc. by the office of the attorney general for the commonwealth of Pennsylvania.

20. During this time, the office of the attorney general attempted to facilitate a resolution between the parties. Further, the office of the attorney general encouraged the defendants to “set aside” funds intended for mortgage payments.

21. Defendants failed to set aside any significant amount of funds intended for mortgage payments.

22. At the time plaintiff filed its complaint in mortgage foreclosure, the notice provisions of Act 6 of 1974 did not apply to this action because the original principal balance of the mortgage exceeded $50,000.00.

23. At the time plaintiff filed its complaint in mortgage foreclosure, the notice provisions of Act 91 of 1983 did not apply to this action because the account was more than twenty-four (24) months delinquent.

24. Plaintiff sent defendants a notice of intention to foreclose on August 23, 2006.

25. The defendants acknowledge receipt of the notice of intention to foreclose letter sent by plaintiff.

26. The mortgage is due for October 1, 2003 payment, a period in excess of seven years.

27. GMAC has paid on behalf of the Jennases all local taxes (county, school), hazard insurance and mortgage insurance without reimbursement.

28. The amount of the debt owed plaintiff by defendants is $461,763.35 which does not include preparation for trial.

29. The judgment sought in the amount of $461,763.35 is broken down as follows:

Principal Balance $262,320.21
Interest from 9/1/03 through
12/31/10 at $48.51 per diem 129,828.19
Accumulated late charges 493.94
Attorney fees 5,560.00
Attorney costs 778.50
Escrow Advances 60,989.01
Property Inspections/BPO 1,193.5 0
Property Preservation 600.00
TOTAL $461,763.35

30. The parties have made numerous attempts to find a resolution of the default through some means of loss mitigation, including but not limited to repayment agreements, loan modification and a possible sale of the property.

31. All loss mitigation efforts to date have been unsuccessful.

DISCUSSION

GMAC seeks a judgment in mortgage foreclosure in this suit. In an action for mortgage foreclosure, the entry of judgment is proper if the mortgage is in default, the mortgagors have failed to pay interest on the obligation, and the recorded mortgage is in the specified amount. Landau v. Western Pennsylvania National Bank, 445 Pa. 217, 225, 282 A.2d 335, 340 (Pa. 1971).

The Jennases gave their mortgage in a specific amount and at a specific rate of interest. The mortgage has been recorded in the office of the recorder of deeds of Monroe County. The Jennases have defaulted on the payments due under the mortgage and they have failed to pay principal or interest on their obligation since 2003. The Jennases do not dispute the amount of the judgment; they assert fraud and equitable estoppel as affirmative defenses to the foreclosure.

The Jennases allege in new matter that GMAC secured and used a fraudulent property appraisal to inflate the value of the property. Sharmilla Jennas bought the property from Raintree Enterprises, Inc. for $296,057.00 on February 14, 2001. She obtained a purchase money mortgage from U.S. Mortgage Corporation in the amount of $266,400.00. Ms. Jennas obtained her own appraisal from Thomas Bruneo on May 27, 2001, which valued the property at $243,500.00.

Ms. Jennas refinanced her property on March 25, 2002 through GMAC. She did not disclose the results of the Bruneo appraisal to GMAC. The GMAC mortgage was for the principal sum of $266,400.00. GMAC did not obtain an appraisal before providing the mortgage loan. Instead, it used the Stranieri appraisal to support its loan. GMAC contends that “underwriting guidelines at that time did not require plaintiff to obtain a new appraisal.” GMAC brief, p.8. The refinance reduced the monthly payment on the Jennas loan by $487.91 per month.

Pennsylvania law does not support the Jennases’ claim. “Ordinarily, there is no duty on the part of a lender to inspect the mortgaged property to determine that the borrower is obtaining that which he may have been promised by the vendor or that which he believes he is obtaining. Unless some further obligation is assumed, the lender’s inspection of the premises to be mortgaged is made only to ascertain whether the property has sufficient value to secure the loan and is made by the lender for its benefit only.” Federal Land Bank of Baltimore v. Fetner, 410 A.2d 344, 348 (Pa. Super. 1979). Thus, GMAC had no duty to the Jennases to obtain a new appraisal. In addition, the Jennases had obtained their own appraisal after the Stranieri appraisal was done by their first lender. This appraisal showed that their property was worth less than the mortgage loan they sought from GMAC. Despite this knowledge, the Jennases proceeded to obtain the GMAC refinance, and didn’t advise GMAC of their lower appraisal. They obtained the benefit of the refinancing, and lowered their monthly mortgage payment by $487.91.

The elements of common law fraud include 1) a misrepresentation; 2) a fraudulent utterance thereof; 3) an intention by the maker that a recipient will thereby be induced to act; 4) justifiable reliance by the recipient upon that misrepresentation; 5) damage to the recipient due to the misrepresentation. Sowell v. Butcher & Singer, Inc., 926 F.2d 289, 296 (3d Cir. 1991). The Jennases contend that GMAC committed fraud because it relied on the Stranieri appraisal. However, there is nothing in the record to suggest that GMAC was aware that the Stranieri appraisal was fraudulent. There is evidence that the Jennases had that knowledge, due to their own independent appraisal. Thus the Jennases argument fails because they have not shown that GMAC made an intentional misrepresentation, and they have not shown justifiable reliance on a misrepresentation.

The Jennases have also claimed that GMAC is estopped from foreclosing the mortgage. This argument fails for similar reasons. To prove equitable, estoppel, the complaining party must establish the following:

1) lack of knowledge and of the means of knowledge of the truth as to the facts in question; 2) reliance upon the conduct of the party estopped; and 3) action based thereon of such a character as to change his position prejudicially. Cheltenham National Bank v. Snelling, 326 A.2d 557 (Pa. Super. 1974)

The Jennases did have knowledge of the value of their property before they obtained the loan from GMAC. Despite that knowledge, the proceeded to obtain the GMAC loan and benefitted from the lower monthly payment.

Judgment in rem will be awarded to GMAC.

DECISION

And now, December 29, 2010, after consideration of the stipulated facts in this matter and the parties briefs, it is ordered that a decision is entered in favor of plaintiff GMAC pursuant to P.R.C.P. 1038 as follows:

Principal balance $262,320.21
Interest from 9/1/03 through
December 28, 2010 at $48.51
per day 129,682.66
Accumulated late charges 493.94
Attorney fees 5,560.00
Attorney costs 778.50
Escrow Advance 60,989.01
Property inspections 1,193.50
Property maintenance 600.00
Total $461,617.82


source: Caselaw Access Project

author: ZULICK, J.,

license: Public Domain

text:
    Pleasant Valley Sch. Dist. v. Scheaffer

      Gerard J. Geiger, for plaintiff.

      Jeffi-ey Husisian, for defendant.

    January 13, 2011
   ZULICK, J.,

This matter is before the court on the objections of respondent Robert D. Schaeffer (“Mr. Schaeffer”) to subpoenas and petitioner Pleasant Valley School District’s (“PVSD”) motion to overrule those objections. By order of this court dated September 30, 2010, the case was remanded to the arbitrator “[f]or an additional hearing on the reasons why Schaeffer was suspended from teaching, and whether his reinstatement would violate public policy as discussed in Westmoreland Intermediate Unit #7 v. Westmoreland Intermediate Unit #7 Classroom Assistants Educ. Support Pers. Ass’n., PSEA/NEA, 595 Pa. 648, 667, 939 A.2d 855, 856 (Pa. 2007) and Stroehmann Bakeries, Inc., v. Local 776, Intem. Broth. of Teamsters, 969 F.2d 1436 C.A.3 (Pa.), 1992” (order of Sept. 30, 2010). PVSD has subpoenaed the Lehighton Area School District and Lehighton Borough Police Department pursuant to that order. Those subpoenas are the subject of the objections and responsive motion presently before the court.

PVSD served notice of intent to serve the subpoenas on October 7, 2010. Mr. Schaeffer filed objections to the subpoenas pursuant to Pa. R.C.P. 4009.21 on October 27, 2010 and on November 9, 2010 PVSD filed a motion to overrule those objections. The parties submitted briefs and the matter was argued on January 3, 2011.

DISCUSSION

Mr. Schaeffer asserts that the subpoenas “[a]re invalid and unenforceable because they arc being served under the discovery rules of the Pennsylvania Rules of Civil Procedure, which is (sic) inapplicable to arbitration proceedings....” (Resp.’s Br. 1). He argues that the American Arbitration Association Rules for Labor Arbitration govern here Id. at 5.

The Pennsylvania Rules of Civil Procedure, including those guiding discovery, do not apply to arbitration proceedings. See Harleysville Mutual Casualty Co. v. Adair, 421 Pa. 141, 145, 218 A.2d 791, 794 (Pa. 1966); Savage v. Commercial Union Ins. Co., 473 A.2d 1052, 1058 (Pa. Super. 1984). Instead, the rules of arbitration govern and the arbitrator is empowered to issue (or not issue) subpoenas requested by the parties. 42 Pa. C.S.A. §7309(a). Section 7309 of the Judicial Code provides in pertinent part:

(a) General rule. — The arbitrators may issue subpoenas in the form prescribed by general rules for the attendance of witnesses and for the production of books, records, documents and other evidence. Subpoenas so issued shall be served and, upon application to the court by a party or by the arbitrators, shall be enforced in the manner provided or prescribed by law for the service and enforcement of subpoenas in a civil action.
(b) Depositions. - On application of a party and for use as evidence the arbitrators, in the manner and upon the terms designated by them, may permit a deposition to be taken of a witness who cannot be served with a subpoena or who is unable to attend the hearing. 42 Pa. C.S.A. § 7309(a)-(b) (emphasis added).

Pennsylvania courts have construed the permissive language of section 7309(b) of the code as giving the arbitrator discretion over discovery matters:

The language “may permit” in the statute reflects a clear legislative intent to place the decision of whether to order a deposition...squarely within the discretion or province of the arbitrators. Cotterman v. Allstate Ins. Co., 666 A.2d 695, 700 (Pa. Super. 1995).

Because the language of Section 7309(a) is virtually identical to that of section 7309(b), the decision of whether to issue a subpoena appears squarely within the discretion or province of the arbitrator as well. Therefore, by remanding the case to the arbitrator, the court has relinquished jurisdiction over the discoveiy process — including issuance of subpoenas — subject to the parties’ right to appeal. Here, the arbitrator has been instructed to determine whether Mr. Schaeffer’s reinstatement would violate public policy. Decisions as to the appropriate discovery process to properly carry out the hearing on remand are within the discretion of the arbitrator and governed by the American Arbitration Rules for Labor Arbitration (See Husisian Aff., Ex. D). Accordingly, I will sustain Mr. Schaeffer’s objections to the subpoenas on the basis that the arbitrator must decide whether or not to issue them. However, 1 will not reach the questions raised by Schaeffer as to whether the school district seeks irrelevant evidence or confidential information; are overbroad, embarrassing and harassing; or violate Mr. Schaeffer’s constitutional rights to reputation and privacy. These are questions for the arbitrator as well. Finally, I will deny PVSD’s motion to overrule the objections.

ORDER

And now, January 13, 2011, upon consideration of the parties’ briefs and arguments, it is ordered as follows:

1. Respondent Robert D. Schaeffer’s objections to the subpoenas are sustained.

2. Petitioner Pleasant Valley School District’s motion to overrule objections is denied.


text:
    Ertle v. Paradise Summit LLC

      Aaron M. DeAngelo, for plaintiff

      Marshall E. Anders, for defendant.

    January 18, 2011
   ZULICK, J.,

This case arises from two contracts entered into between plaintiff James Ertle and defendant Paradise Summit, LLC (“Paradise”) for the sale of real property. The parties entered into an agreement dated May 8, 2006 (“Contract I”) for the sale of 110 acres (the “property”) located in Pocono and Paradise Townships. Approximately one half of the property is situated in Paradise Township in an R2 zoning district with the balance of the property situated in Pocono Township in an RD zoning district (Tabat Dep. at 17). The purchase price of the property was $4,500,000. with Mr. Ertle to make non-refundable deposits of $25,000 per month toward the purchase price from June, 2006 through November, 2006 (Def. Ex. 1 ¶3).

The parties entered into a second agreement the next day, May 9, 2006. They signed a contract for sale of Paradise Golf (“Contract II”) (see Def. Ex. 2). That transaction included the 110 acres sold in the contract of May 8, 2006, as well as additional improvements and equipment. The terms of the contract provided for the waiver of all contingencies and provided that deposit payments were non-refundable (Tabat Dep. at 37; Def. Ex. 2). Mr. Ertle paid $150,000 in deposit payments to Paradise for the property (PI. Mot. Summ. J. at ¶ 6).

A dispute arose between the parties and Mr. Ertle filed this action to void the May 8, 2006 agreement. On April 16, 2008, Mr. Ertle filed a fourth amended complaint seeking to recover the deposit monies from Paradise based on counts of breach of contract (right to void), breach of contract (mutual mistake), and unjust enrichment (Am. Cmpl. ¶¶ 12-24). Paradise filed an answer, new matter and counterclaim on May 5,2008. On June 30,2010, Mr. Ertle filed an amended reply to new matter and counterclaim.

The parties filed a stipulation to remove a lis pendens against the property on May 2,2008. That lis pendens was stricken by order of May 6, 2008.

On July 9, 2008, Paradise filed a motion for judgment on the pleadings. Ertle filed a timely answer and the motion was denied on September 15, 2008. After a period of discovery, Mr. Ertle filed a motion for summary judgment on October 1, 2010. Paradise filed a timely answer, the parties submitted briefs, and the matter was argued on December 6, 2010.

DISCUSSION

The Pennsylvania Rules of Civil Procedure permit a party to move for summary judgment after the close of pleadings. Pa.R.C.P. 1035.2. Summary judgment is appropriate only in those cases in which (1) the record shows that there is no genuine issue of material fact, and (2) the moving party is entitled to judgment as a matter of law. Erie Ins. Co. v. Abbott Furnace Co., 972 A.2d 1232, 1237 (Pa. Super. 2009). Summary judgment is therefore proper only when the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. Lance v. Wyeth, 4 A.3d 160, 163 (Pa. Super. 2010).

The moving party has the burden of proving that no genuine issues of material fact exist. A fact is material if it directly affects the disposition of a case. Windber Area Authority v. Rullo, 387 A.2d 967, 970 (Pa. Cmwlth. 1978) (citation omitted). The trial court must examine the record in a light most favorable to the nonmoving party and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Moyer v. Teledyne Cont’l Motors, Inc., 979 A.2d 336, 342-43 (Pa. Super. 2009) (citation omitted). The burden is therefore placed upon the moving party to prove that there is no issue of material fact. Thompson Coal Co., v. Pike Coal Co., 488 Pa. 198, 204, 412 A.2d 466, 468-69. In sum, only when the facts are so clear that reasonable minds cannot differ, may a trial court properly enter summary judgment. Lance, 4 A.3d at 163.

(1) Validity

Mr. Ertle asserts that the contract is void because the property does not have the zoning designation allegedly required by the contract, and because Paradise allegedly misrepresented an extension of the closing date for sale of the property.

(A) Zoning

Contract I requires that the agreement set forth the zoning classification of the property (See Def. Ex. 1 ¶ 9). Indeed, paragraph 9 of Contract I allows the buyer to declare the contract void if the property does not have the correct zoning classification. Id. The property in Paradise Township is in an R2 Zoning District, which is primarily a residential classification (Tabat Dep. at 17). However, the property in Pocono Township is in an RD Zoning District, a classification which allows for several non-residential uses {Id. at 17-18).

The portion of the property situated in Pocono Township is not zoned for residential use. Instead, it is zoned in part for commercial and other purposes. Mr. Ertle argues that because this zoning was not stated in paragraph 9, that paragraph of the parties’ agreement allows him to void the contract.

However, paragraph 9 (providing for voidability at option of buyer) contains a line for a disclosure of the zoning classification of the property. That line was not completed in the parties’ agreement. Paragraph 10, which also relates to zoning and provides spaces for disclosure of the property’s zoning district, was left similarly incomplete. Paragraph 2 (related to a description of the property) provided lines and descriptions that were completed by Mr. Ertle. That paragraph, filled in by Mr. Ertle, recites that the property is “110 ACRES Both commercial + Residential Real Estate. ...”

Based on the inconsistencies in paragraphs 2, 9 and 10 of Contract I, several issues of material fact are present that render summary judgment unavailable. A fact-finder must decide what the parties intended in the agreement. See Great American Insurance Co. v. Norwin Sch. Dist., 544 F.3d 229, 243 (3d Cir. 2008) (“The fundamental rule in interpreting the meaning of a contract is to ascertain and give effect to the intent of the contracting parties.”) Paragraph 9 cannot be read alone, but must be construed together with the rest of Contract I. See Gaffer Ins. Co. v. Discover Reinsurance Co., 936 A.2d 1109, 1113 (Pa. Super. 2007) (“[t]he contract must be interpreted as a whole, and an interpretation that gives effect to all of the contract’s provisions is preferred.”).

Paradise argues that Contract II supersedes the provisions of Contract I. Contract II provided that the property was sold “as is,” with contingencies waived and subject to then current legal zoning (Def. Ex. 2 ¶ 1). Again the parties’ intent becomes relevant in determining if Contract 11 superseded Contract I. Thus, which of the provisions of the two contracts governs the relationship between the parties is an issue provisions of the two contracts governs the relationship between the parties is an issue for the trier of fact.

(B) Fraud

Mr. Ertle alleges that the defendant’s principal, Max Tabat, promised an extension of the real estate closing date for the property in exchange for additional consideration (PL’s brief at 9). Mr. Ertle gave Max Tabat (“Mr. Tabat”) $50,000 in exchange for such an extension. Mr. Tabat took the money but did not provide an extension. On this basis, Mr. Ertle alleges that the transaction was fraudulent and that he is entitled to his deposit monies.

However, no cause of action for fraud is alleged in the fourth amended complaint. Ertle has not pled these facts or this cause of action. He is therefore not entitled to summary relief.

(2) Rescission

Mr. Ertle contends that pursuant to the doctrine of mutual mistake, he may rescind the contracts. He asserts that both parties negotiated believing that the property would have highway access from both directions of Route 611. After the agreement was reached he contends that a median was constructed restricting access to the property to one direction of travel only. He argues that both parties were mistaken about this (Pl.’s brief at 2).

The doctrine of mutual mistake is a defense that occurs where “both parties have an erroneous belief as to a basic assumption of the contract at the time of formation which will have a material effect on the agreed exchange as to either party.” Bianchi v. Bianchi, 859 A.2d 511, 516 n.3 (Pa. Super. 2004) (emphasis added). Furthermore, “the misconception which avoids a contract is necessarily a mutual one, and a fact which entered into the contemplation of both parties as a condition of their assent.” Gocek v. Gocek, 612 A.2d 1004, 1006 (Pa. Super. 1992). The moving party must demonstrate mutual mistake by clear, precise and convincing evidence. Zurich Am. Ins. Co. v. O’Hanlon, 968 A.2d 765, 770 (Pa. Super. 2009).

There are likewise material issues of fact about whether a mutual mistake occurred. Ertle has not come forward with cleat', precise and convincing evidence that there was a mistake at the time the parties entered into the agreement. As Paradise argues in its brief, the unexpected construction of the median was not “a mistake.” An analogous situation would occur if one of the municipalities changed the zoning after the contracts were signed, limiting development of the property (Def.’s Br. in opp’n to Pl.’s mot. for sunim. J. at 12).

Secondly, Paradise contends that there was no mutual assumption thatMr. Ertle would have continued access from the northbound lane of Pennsylvania Route 611. Paradise accepted a reduced price because the contracts provided for no contingencies (TabatDep. at 23). Paradise contends that the issue of access to the property (and, necessarily, construction of the median) was not a consideration to Paradise at the time the contract was signed.

Thirdly, if the provisions of Contract II govern, no mutual mistake can be found to exist here. That contract provided that the property was sold “as is,” with Mr. Ertle assuming any and all risks that development of the property might entail. Contract II also provided that all contingencies would be waived (Def. Ex. 2 ¶ 1). These issues go to the intent of the parties and must be decided at trial, not in summary judgment proceedings.

(3) Motion to Quash

Mr. Ertle has filed a motion to quash Paradise’s subpoenas directed to Tri-State Ventures, L.P., John P. Fasciano, and Landcore Engineering Consultants, P.C. Paradise has not filed an answer to that motion.

Each subpoena requests “the entire contents of [the subpoenaed party’s] file” related to the property (see Pl.’s br. in saupp. of mot. quash 3). Mr. Ertle asserts that the subpoenas are an “eleventh hour fishing expedition.” Id. He argues the subpoenas are not relevant and overly broad. He also maintains that he went to great expense to procure the engineering and other surveys believed to be contained in the subpoenaed files, and that Paradise would in effect be receiving free survey work. Id.

The Rules of Civil Procedure govern discoverable materials as follows:

Rule 4003.1. Scope of Discovery Generally. Opinions and Contentions.
(a) Subject to the provisions of rules 4003.2 to rules 4003.5 inclusive and rule 4011, a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.
(b) It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
(c) Except as otheiwise provided by these rules, it is not ground for objection that the information sought involves an opinion or contention that relates to a fact or the application of law to fact. Pa.R.C.P. 4003.1.
However, Rule 4011 limits the scope of discovery.
Rule 4011. Limitation of Scope of Discovery and Deposition.
No discovery or deposition shall be permitted which
(a) is sought in bad faith;
(b) would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party;
(c) is beyond the scope of discovery as set forth in Rules 4003.1 through 4003.6;
(d) is prohibited by any law barring disclosure of mediation communications and mediation documents; or
(e) would require the making of an unreasonable investigation by the deponent or any party or witness. Pa.R.C.P. 4011.

The court heard arguments on the motion to quash on December 6, 2010. Based on Mr. Ertle’s brief, the limited time devoted to the motion at argument, and in the absence of an answer or brief filed by Paradise, I camiot conclude that Paradise has established that the information sought is reasonably calculated to lead to the discovery of admissible evidence. See Berkeyheiser v. A-Plus Investigations, Inc., 936 A.2d 1117, 1127 (Pa. Super. 2007) (remanding for trial court’s failure to require plaintiff to establish discovery was reasonably calculated to lead to discovery of admissible evidence); see also J.S. v. Whetzel, 860 A.2d 1112 (Pa. Super. 2004) (holding trial court erred in permitting discovery requesting “unfettered” production of “any and all” of appellant’s tax forms, where such documentation contained information unrelated to case). Accordingly, I will grant the motion to quash.

ORDER

And now, January 18, 2011, after consideration of the parties’ briefs and arguments, it is ordered as follows:

1. Plaintiff’s motion for summary judgment is denied.
2. Plaintiff’s motion to quash is granted.

      . The Pocono Township Zoning Ordinance treats the RD District as the “Resort District in Pocono Township which permits transient dwelling accommodations, commercial recreation and entertainment uses.” (Pl. Br. at 4.) Section 404.A. of the Pocono Township Zoning Ordinance provides: “The regulations of this District are intended to maximize open space while allowing for recreational activities that generate employment, retail trade, retail services, tourism, and related dining/lodging and entertainment uses.” Id.

      . As discussed in section 1(A) (“Zoning”), whether Contract I or Contract II governs is a matter for the trier of fact.


author: MINORA, J.,

text:
    Commonwealth v. Messner

      Eugene M. Talerico Jr., first assistant district attorney, for Commonwealth.

      Keith A. Messner, pro se.
    December 17, 2010
   MINORA, J.,

The issue before the court is defendant’s redundant petition for post-conviction relief based upon the imposition of a sentence greater than the lawful maximum sentence allowed by law, ineffective assistance of counsel, and a plea of guilty unlawfully induced.

FACTUAL AND PROCEDURAL HISTORY

In August of 1997, the 36-year-old defendant took a 15-year-old victim to a hotel room. While in the room, defendant asserted that he could make her have an orgasm by performing sexual acts on her. Afterwards, defendant touched the victim’s breasts and vagina, and performed oral intercourse on her.

Based on this incident, the commonwealth charged the defendant with involuntary deviate sexual intercourse, aggravated indecent assault, statutory sexual assault, corruption of minors, and indecent assault.

In 1999, defendant and the commonwealth reached an open plea agreement in which defendant would plead guilty to statutory sexual assault and corruption of minors, while the other charges would be dismissed at sentencing. In addition, the commonwealth agreed not to object to defendant’s request that the court impose his convictions to run concurrently. Although this court accepted the guilty plea, it declined to sentence the defendant concurrently and on December 16, 1999, imposed consecutive sentences of 30 to 84 months’ imprisonment for statutory sexual assault and 18 to 36 months for corruption of minors. Defendant filed a motion for reconsideration of sentence, which was denied.

Defendant then filed a pro se motion to withdraw his guilty plea and vacate sentence, followed by a pro se PCRA petition. Defendant’s appellate counsel filed a direct appeal to the Superior Court challenging the sentence. The Superior Court remanded the case to this court with direction to convene an evidentiary hearing on defendant’s petition to withdraw his guilty plea. Before the hearing could take place, however, defendant fell ill with cancer and filed first a motion for continuance and later a petition to withdraw his motion to withdraw his guilty plea. This court granted the petition to withdraw and no hearing convened.

Meanwhile, defendant’s PCRA petition, filed in 2000, lay dormant until 2005 when defendant filed an amended PCRA petition. In June of 2006 this court held an evidentiary hearing to determine whether defendant’s petition to withdraw his motion to withdraw his guilty plea was meant to withdraw the PCRA petition as well. Although the lapse of time between PCRA filings appeared to indicate defendant intended to withdraw the PCRA when he withdrew his motion to withdraw his guilty plea, this court decided to give the benefit of the doubt to the defendant. Despite the possible violation of procedural requirements, this court allowed the petition to proceed on the merits. This court then denied the petition on December 13, 2006. Defendant appealed the PCRA order denying relief on January 5, 2007, but the decision was affirmed by the Superior Court on May 1, 2008.

On June 17, 2010, defendant filed a second PCRA petition, pro se, based upon the imposition of a sentence greater than the lawful maximum sentence allowed by law, ineffective assistance of counsel, and a plea of guilty unlawfully induced.

LEGAL STANDARD

A defendant seeking post-conviction relief must file his or her petition within one year of the date the judgment becomes final, unless one of the statutory exceptions apply. See 42 Pa. C.S.A. § 9545(b)(1); Pa.R.Crim.P. 901. The law regarding this one-year limitation is clear. The one-year limitation is jurisdictional in nature, and the defendant’s failure to comply therewith precludes the court from addressing the merits of the issues raised by the defendant in his/her petition. See Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214 (Pa. 1999). This applies to initial, second, or subsequent petitions. See Id. (emphasis added) A court may not examine the merits of a petition for post- conviction relief that is untimely. See Commonwealth v. Abu-Jamal, 833 A.2d 719 (Pa. Super. 2003), cert. denied, 541 U.S. 1048 (2004).

Furthermore, neither a showing of prejudice by the commonwealth nor a hearing is required before a petition under PCRA is dismissed due to petitioner’s failure to meet the jurisdictional requirement of provisions setting forth time limits for petitions. Commonwealth v. Burton, 936 A.2d 521 (Pa. Super. 2007), appeal denied, 959 A.2d 927 (Pa. 2008).

LEGAL ANALYSIS

Defendant’s current petition, filed on June 17, 2010, was filed well beyond the one-year time limitation for filing a PCRA petition established by statute. The Superior Court affirmed this court’s denial of defendant’s first PCRA petition on May 1, 2008. Defendant had until May 31, 2008 to petition the Supreme Court for allowance of appeal. Pa.R.A.P. 1113. Defendant voluntarily took no action. Judgment therefore became final on June 1, 2008, and the clock for the one-year time limitation on PCRA petitions began to run. The one-year period expired on June 1, 2009. Defendant filed his second PCRA petition on June 17, 2010, over a year after the limitation had expired and more than two years chronologically beyond the final date of June 1, 2008.

Defendant’s petition acknowledges that it was filed outside the one-year statutory limit, but contends that the following 42 PA.C.S. §9545(b)(l) statutory exceptions to the one-year time limitation apply:

(i) The failure to raise a claim previously was the result of interference by government officials with the presentation of the claim in violation of the constitution or laws of this commonwealth or constitution or laws of the United States.
(ii) The facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence.
(iii) The right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.

First, defendant alleges that the failure to raise a claim previously was the result of interference by government officials with the presentation of this claim in violation of the constitution or laws of this commonwealth or constitution or laws of the United States. Defendant alleges this exception by checking a box on a form PCRA petition and fails to allege any facts which would support this claim. There is absolutely no allegation of interference by government officials that would have prevented defendant from timely bringing this current petition during the one-year time period from June 1,2008 to June 1, 2009. Furthermore, counsel is not a “government official” under this exception. 42 PA.C.S. § 9545(b)(4). This exception is therefore inapplicable to the defendant’s current petition.

Next, defendant alleges the facts upon which his current claim for relief is predicated were unknown to him during the one-year time limitation and could not have been ascertained by the exercise of due diligence. Again, defendant alleges this exception by checking a box on a form PCRA petition and totally fails to allege any facts whatsoever which would support this claim. Defendant raises three grounds for relief:

(1) The common law doctrine of merger should have been applied to the sentences imposed, and therefore, his sentence was greater than the lawful maximum allowed by law.
(2) Ineffective assistance of counsel for failure to investigate the defense, for coercing a guilty plea, and failing to file a motion to withdraw the plea despite requests by defendant.
(3) This court accepted a coerced plea of guilty when defendant professed his innocence on the record in court.

Without addressing the merits of these grounds, defendant has alleged absolutely no facts to show that these three claimed exceptions were not and could not have been known by the defendant within the one-year time period from June 1, 2008 to June 1, 2009. All three alleged claimed exceptions arose on or before defendant’s sentencing on December 16, 1999. Therefore, any facts supporting these alleged exceptions were either known by the defendant during the one-year time period, or could have been ascertained by the defendant since sentencing and certainly within the time period by the exercise of due diligence. This exception is therefore inapplicable to the defendant’s current petition.

Finally, defendant alleges the rights asserted in this current petition are constitutional rights that were recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the one- year time period and has been held by that court to apply retroactively. Once again, defendant alleges this exception by checking a box on a form PCRA petition and fails to allege any supporting facts to this claim. Defendant does not allege there has been any change in the law between June 1, 2009, the last day within the one-year time period, and June 17, 2010, the day defendant filed this current petition. This exception is therefore inapplicable to the defendant’s current petition.

CONCLUSION

The filing of defendant’s second PCRA petition is untimely and any of his unsupported arguments of exception to this time limitation are unsupported, inapplicable, and/or untimely. Therefore, this court lacks subject matter jurisdiction by statute to consider this petition on the merits. Accordingly, defendant’s petition for post-conviction relief is dismissed and denied. An appropriate order will follow.

ORDER

And now, December 17,2010, it is hereby ordered and that the above-captioned defendant’s petition for relief pursuant to the Post Conviction Relief Act is dismissed and denied.


author: PICCIONE, J.,

text:
    LeClair v. LeClair

      Susan M. Papa, for plaintiff.

      William M. Panella, for defendant.

    January 24, 2011
   PICCIONE, J.,

This case is before the court on plaintiff’s petition for special relief seeking appropriate relief from monthly alimony pendente lite payments of $1,000.00. The parties were divorced on August 12,2010. After a full hearing before the master on the issue of equitable distribution, the report of the master was filed on September 15, 2010. The master found that the defendant, who now resides with her boyfriend, has monthly income in excess of her reasonable monthly expenses. The plaintiff and defendant each filed exceptions to the master’s report, which exceptions are presently pending before the court for a hearing scheduled March 28, 2011. Thereafter, the plaintiff filed this instant petition for special relief.

“Alimony Pendente Lite (hereinafter “APL”) is an order of court for temporary support which is granted to a spouse during the pendecy of a divorce...proceeding.” 23 Pa.C.S.A.§3103. APL is designed to help the dependent spouse maintain the standard of living enjoyed while living with the independent spouse, Litmans v. Litmans, 673 A2d 382, 389 (Pa. Super. 1996). “APL is based on the need of one party to have financial resources to pursue a divorce proceeding when, in common theory, the other party has major assets which are the financial sinews of domestic warfare.” Id. at 388. APL is thus not dependent of the status of the party as being a spouse or being remarried, but is based on the state of the litigation. DeMasi v. DeMasi, 597 A2d 101, 104-105 (Pa. Super. 1991).

APL focuses on the ability of the individual who receives APL during the course of their litigation to defend himself/herself, and. the only issue is whether the amount is reasonable for the purpose, which turns on the economic resources available to the spouse. Haentjens v. Haentjens, 860 A2d 1056, 1062 (Pa. Super. 2004); DeMasi at 104.

Though APL typically ends when a divorce decree is awarded, which also should be the point at which equitable distribution has been determined, if an appeal is pending on matters of equitable distribution, then despite the entry of the divorce decree, APL will continue throughout the appeal process and any remand thereof until a final order has been entered. Haentjens at 1062; DeMasi at 104. Therefore, it appears quite clear that defendant’s entitlement to continued APL, notwithstanding the entry of a divorce decree between the parties, is appropriate. It therefore becomes necessary to consider the plaintiff’s petition, which seeks “appropriate relief’ in view of the facts which are presently before the court.

Both of the parties have filed exemptions to the master’s report; however, neither of the parties has taken exception to the master’s finding of the parties’ annual gross incomes: plaintiff’s, $50,000.00 per year; defendant’s, $23,500.00 per year. On this basis, the respective net monthly incomes of the parties calculated in the manner utilized by the Domestic Relations Office would result in a determination that the plaintiff’s net monthly income would be $3,154.17 and the defendant’s net monthly income would be $1,587.66. Calculating the defendant’s entitlement to APL utilizing this information results in a monthly APL order of $627.00 per month for the defendant. The court makes this calculation based upon its belief that APL would be awarded at upon the basis of 40 percent of the difference between the net monthly incomes of the parties.

ORDER OF THE COURT

And now, January 24,2011, and in accordance with the accompanying opinion, it is ordered and decreed that in consideration of plaintiff’s petition for special relief, the court orders and decrees that plaintiff’s petition is granted to the extent that that commencing as of November 1, 2010, and the plaintiff shall be required to pay the defendant the sum of $627.00 per month alimony pendente lite pending further order of court.

The prothonotary is directed to serve a copy of this order of court and attached opinion upon counsel of record; and if a party has no counsel, then upon said party at their last known address as contained in the court’s file.


author: MILLER, J.,

text:
    Bridgeman v. Cruz

      Jason R. Ohliger, for plaintiff.

      Daniel D. Stofko and Edward J. McKarski, for defendants.
    January 7, 2011
   MILLER, J.,

The current dispute stems from an automobile accident which occurred on August 8, 2008. On that date, plaintiff Alexandra Bridgeman (“plaintiff’) and defendant Danny Cruz (“Cruz”) were traveling in opposite directions on Coolbaugh Drive in Middle Smithfield Township, Monroe County, Pennsylvania. Cruz was driving a car owned by defendant Mary Rodriguez (“Rodriguez”). Cruz struck the rear of the car in front of him, driven by Sylvette Hartroth, as Ms. Hartroth attempted to turn left into Pocono Heights. The impact sent Ms. Hartroth’s car into the oncoming lane where it struck plaintiff’s vehicle.

Plaintiff filed a complaint on July 27, 2010, which asserted a claim in negligence against Cruz and claims for vicarious liability and negligent entrustment against Rodriguez. Plaintiff also asserted a claim against defendant Nationwide Insurance Company (“Nationwide”), plaintiff’s insurer, for recovery above and beyond the alleged tortfeasor-defendants’ applicable policy limits, under plaintiff’s insurance contract which provided for uninsured (“UM”) and underinsured motorist (“UIM”) coverage pursuant to the Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”), 75 Pa. C.S. § 1701, et seq.

On September 20,2010, Nationwide filed a cross-claim which alleged that defendants Cruz and Rodriguez were liable to Nationwide for contribution or indemnification of any amounts that Nationwide had to pay to plaintiff under the terms of plaintiff’s uninsured and underinsured motorist coverage. Nationwide claimed, essentially, that any amount it was required to pay to plaintiff under the policy was due to the actions of Cruz and Rodriguez, the alleged primary tortfeasors. Defendants Cruz and Rodriguez filed preliminary objections to Nationwide’s cross-claim on October 7,2010 and argued that Nationwide had no right to contribution or indemnification because they were brought into the case on an uninsured or underinsured motorist theory of recovery.

We held oral arguments on December 6, 2010 and are now ready to rule on this matter. For the following reasons, we sustain defendants’ preliminary objections and strike Nationwide’s cross-claim, as Nationwide’s claim for contribution or indemnification is not yet ripe for judicial review.

The legal concept of justiciability encompasses the related questions of who may properly bring a claim before a court, and when that claim may properly be brought. A litigant must satisfy three threshold requirements before a claim can be considered justiciable: (1) the litigant must have standing to bring the action; (2) the claim must not be moot; and (3) the claim must be ripe for judicial review. See Rendell v. Pennsylvania State Ethics Comm’n, 603 Pa. 292, 983 A.2d 708 (2009).

To be ripe for judicial review, “an actual case or controversy must exist at every stage of the judicial process.” Richards v. Trimbur, 543 A.2d 116, 119 (Pa. Super. 1988). The rationale for the ripeness doctrine is to prevent premature adjudications. Rouse & Associates-Ship Road Land LP v. Pennsylvania Environmental Quality Bd., 642 A.2d 642 (Pa. Cmwlth. 1994). To determine whether a claim is ripe for review, the court must consider two factors: (1) whether the issues are adequately developed for judicial review, and (2) what hardships, if any, the parties will suffer if review is delayed. Braksator v. Zoning Hearing Bd. of Northampton Twp., 641 A.2d 44 (Pa. Cmwlth. 1994). The court should analyze “whether the claim involves uncertain or contingent events that may not occur as anticipated or at all,” and whether any actual hardship creates a ” "direct and immediate’ dilemma for the parties, such that the lack of pre-enforcement review will put the parties to costly choices.” Alaica v. Ridge, 784 A.2d 837, 843 (Pa. Cmwlth. 2001) (citing Philadelphia Fed’n of Teachers v. Ridge, 150 F.3d 319 (3d Cir. 1998)).

The Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa. C.S. § 1701, et seq., provides in relevant part that insurers must offer uninsured and underinsured motorists coverage to prospective automobile insurance purchasers. See 75 Pa. C.S. § 1731. The purpose of uninsured and underinsured motorist coverage is to pass the risk of loss to the insurer when a tortfeasor cannot fully compensate the insured for the insured’s injuries. Kmonk-Sullivan v. State Farm Mut. Auto. Ins. Co., 746 A.2d 1118 (Pa. Super. 1999).

“[ Underinsurance coverage is always secondary, or excess, coverage by its very nature; the insurer pays nothing unless and until the tortfeasor’s coverage is exhausted, and then only if damages exceed the tortfeasor’s insurance limits.” Allwein v. Donegal Mut. Ins. Co., 671 A.2d 744, 757 (Pa. Super. 1996). In other words, the insured must first recover from the primary tortfeasor and then look to the uninsured or underinsured motorist carrier for excess coverage. Id. Additionally, a claim for uninsured or under-insured motorist benefits is not ripe until all other coverage limits have been exhausted. Condio v. Erie Ins. Exch., 899 A.2d 1136, 1150 (Pa. Super. 2006).

After the insurer compensates the insured, the “insurer who paid a UIM claim acquires, by operation of law, the right to seek subrogation from any person that the insured could have pursued who should rightly have borne the loss.” Pusl v. Means, 982 A.2d 550 (Pa. Super. 2009). While no specific statutory provision governs insurer’s subrogation rights involving uninsured and underinsured motorist claims, common law rights of subrogation are available to insurers who pay underinsured benefits to their insureds. Johnson v. Beane, 541 Pa. 449, 664 A.2d 96 (1995). Furthermore, “the insured must be fully compensated, or ‘made whole,’ for injuries suffered before the right of subrogation on the part of the insurer arises.” Pusl, 982 A.2d at 557.

Plaintiff’s insurance contract with defendant Nationwide contains certain provisions that detail the proper procedures for recovery and subrogation under the contract. For example, the contract states:

Before recovery, [Nationwide] aid any injured party seeking protection under this coverage must agree on two points:
a) whether there is a legal right to recover damages from the owner or driver of an iminsured [or underinsured] motor vehicle; and if so,
b) the amount of such damages. Brief in opposition to defendants’ preliminary objections to new matter cross-claim of defendant Nationwide (hereinafter “brief in opposition to preliminary objections”).

The insurance contract states that “[Nationwide] require[s] the insured to file suit against any and all liable parties to preserve and protect [Nationwide’s] subrogation rights. Failure to do so precludes recovery under this coverage.” Brief in opposition to preliminary objections. The contract also provides:

[AJfter paying a loss to [the insured] . . . [Nationwide] will have the insured’s right to sue for or otherwise recover such loss from anyone else who may be liable.... [Nationwide is] not entitled to recovery under uninsured motorists or underinsured motorists coverage until the insured has been fully compensated for damages. Brief in opposition to preliminary objections.

Well-settled principles of contract interpretation require us to apply unambiguous terms of a contract as evidence of the contracting parties’ intent. See Insurance Adjustment Bureau, Inc. v. Allstate Ins. Co., 588 Pa. 470, 905 A.2d 462 (2006). By the unambiguous terms of the contract and according to legal principles of contract interpretation, Nationwide reserved the right to recover any amounts paid to the insured only after Nationwide has compensated the insured for their damages in excess of the tortfeasor’s applicable policy limit.

Nationwide, however, filed a cross-claim against defendants Cruz and Rodriguez in the present suit for indemnification or contribution of any amounts Nationwide might be required to pay out to plaintiff in excess of the defendants’ applicable policy limits.

Nationwide’s cross-claim is more appropriately styled a subrogation claim, not a claim for contribution or indemnification, because Nationwide seeks to recover for amounts they might have to pay to plaintiff, the insured, due to the alleged tortfeasors’ negligence. A claim for contribution or indemnification, on the other hand, arises between jointly or severally liable tortfeasors who propose to transfer the burden of loss amongst each other. See MIIX Ins. Co. v. Epstein, 937 A.2d 469, 472 (Pa. Super. 2007). Indemnification shifts the entire burden to the primary tortfeasor while contribution allots damages between those who share common liability toward the injured party. Id. Plaintiff cannot, in good faith, allege that Nationwide is liable either jointly or severally as a primary tortfeasor. Rather, plaintiff brought Nationwide into the case on an uninsured or underinsured motorists coverage theory of liability, in order to recover damages beyond the other defendants’ applicable policy limits.

Here, plaintiff’s suitto determine liability against alleged tortfeasor-defendants Cruz and Rodriguez is pending, so plaintiff has not established her right to recovery and the amount of damages. Nationwide has not yet compensated plaintiff for her damages, if any, in excess of defendants’ insurance policy limits. Accordingly, by the express terms of Nationwide’s insurance contract with plaintiff, which states that “[Nationwide is] not entitled to recovery under [UM] or [UIM] coverage until the insured has been fully compensated for damages,” Nationwide may not recover against defendants Cruz and Rodriguez unless and until Nationwide compensates plaintiff for damages in excess of alleged tortfeasor-defendants’ policy limits.

Similarly, Nationwide’s cross-claim is procedurally and substantively improper because the claim is.not yet ripe for judicial review. As noted above, the first prong of the ripeness analysis considers whether the issues presented in the claim are adequately developed for judicial review. In the court’s opinion, Nationwide’s cross-claim clearly involves both uncertain and contingent events which render the issues insufficiently developed for review. For one, Nationwide’s right to recoveiy on their cross-claim hinges upon the result in the underlying suit between plaintiff and defendants Cruz and Rodriguez - Nationwide might only recover from Cruz and Rodriguez if plaintiff recovers an amount greater than tortfeasor - defendants’ applicable policy limits in the present case, and pays that excess measure of damages to plaintiff. From this perspective, the viability of Nationwide’s cross-claim is wholly contingent on the outcome of the suit between plaintiff and defendants Cruz and Rodriguez. Nationwide’s claim is also fraught with uncertainty because of the distinct possibility that Nationwide won’t ever have to bring this claim against Cruz and Rodriguez; if plaintiff recovers less than defendants’ policy limits, or nothing at all, Nationwide will not have any losses to recoup from the primary tortfeasors.

The second prong of the ripeness analysis requires us to weigh the hardship the parties will suffer if the claim is not promptly reviewed by the court. After careful consideration, we do not believe that Nationwide, or any other party, will suffer undue hardship if we strike Nationwide’s cross-claim from the underlying suit. If Nationwidc’s cross-claim were stricken, Nationwide would be free to file a subrogation suit against the primary tortfeasors to recover any losses Nationwide was required to pay to plaintiff as a result of the alleged tortfeasor-defendants’ actions. Theoretically, Nationwide could incorporate salient information gleaned from the current case in the liability and damages portions of their subrogation suit against the primary tortfeasors.

Nor do we believe that Nationwide will incur an immediate financial burden if forced to pursue this claim in a subsequent proceeding. The evidence presented in the current case will likely streamline a subrogation suit, lowering the ultimate cost of litigation; Nationwide might only suffer financial harm because it injected itself into the current dispute before its subrogation rights had vested. Additionally, defendants Cruz and Rodriguez will not likely incur any economic burden if we strike Nationwide’s cross-claim. If plaintiff recovers less than defendants’ applicable policy limits, or nothing at all, in the current suit, then defendants Cruz and Rodriguez will not have to defend themselves in a subrogation suit because Nationwide will have no losses to recoup. This distinct possibility, coupled with the inevitable confusion of the issues if we permitted Nationwide to pursue its cross-claim concurrently with the underlying tort litigation, leads us to conclude that none of the parties to Nationwide’s cross-claim will suffer undue hardship if the claim was stricken from the current suit.

Accordingly, we enter the following order.

ORDER

And now, January 7,2011, after oral argument and upon briefs submitted by the parties, defendants’ preliminary objections to the new matter cross-claim of defendant Nationwide Insurance Company are sustained and defendant Nationwide’s cross-claim is hereby stricken.


author: CHARLES, J.,

text:
    Reynolds v. Reynolds

      Robert B. Keys Jr., for plaintiff.

      Barbara Sumple-Sullivan, for defendant.
    February 4, 2011
   CHARLES, J.,

Yomaris Reynolds (hereafter “wife”) has filed a motion seeking exclusive possession of a home that is titled solely in her name. Donald E. Reynolds (hereafter “husband”) seeks to use his status as a husband in order to remain in the house that has been his home since the parties married. For reasons that we will articulate in more detail within this opinion, we will be granting wife’s request for exclusive possession to be effective on April 1, 2011.

I. FACTS

On November 4, 2010, wife filed a complaint for divorce against husband. The complaint alleged that the marriage was irretrievably broken. At the time the complaint was filed, both parties lived inside a house at 204 East Walnut Street, Lebanon, Lebanon County, Pennsylvania (said real estate will hereafter be referred to as “residence”). At or near the time the divorce complaint was filed, wife moved to a separate bedroom within residence.

Residence had been purchased by wife in May of 2002 before she and husband became married. Husband did not contribute toward the purchase price of residence, although he says that he invested money in maintenance and repair of residence during the course of the marriage. At all times pertinent hereto, residence remained titled in wife’s sole name.

Both husband and wife enjoy good jobs in the healthcare industry. Wife’s job as a pharmacy technician at the Good Samaritan Hospital requires her to work Monday through Friday until 11:00 p.m. Husband works at Hershey Medical Center. Flis job begins at 3:30 p.m. and extends until roughly 3:30 a.m. On a typical day, wife would arrive home from work between 11:00 p.m. and 11:30 p.m. and husband would return home from work at about 4:00 a.m.

During the marriage, there were times when husband and wife would enjoy each other’s company in the early morning hours after husband returned home from work. As the marriage soured, wife began her sleep period shortly after she returned home from work. In or about October of 2010, wife began sleeping in a separate bedroom and would be fast asleep when husband returned from work at about 4:00 a.m.

Wife’s daughter is Esther Vallejo (hereafter “Esther”). Esther is a recent graduate of Penn State University. She works part-time as a human relations representative and interpreter at Hershey Foods. Esther is pregnant.

Esther moved back to residence following her graduation from Penn State. She testified that her mother moved into her bedroom in or about October/ November of 2010. She also stated that on a nearly daily basis, husband would awaken she and wife when he returned home from work by turning on all of the lights in the home, coming into their bedroom, turning on the laundry machine and generally acting in a way that would ensure that occupants inside the home would awaken. Esther stated that she told husband to cease and desist this behavior “almost every day.”

Esther stated that things became so bad that she had her boyfriend, Corey Reed, move into residence. Mr. Reed is an ex-marine who is now a full-time student at Penn State University. Reed testified that since he moved into residence in January of 2011, there have been no problems with loud and boisterous behavior by husband at 4:00 a.m.

During the course of the marriage, husband would contribute toward the expenses of residence. However, this changed about six months ago. Apparently, a source of disagreement for the parties involved the extent to which wife’s children should be forced to contribute toward household expenses. Husband did not believe that either Esther or wife’s son contributed nearly enough to the expenses of the household. Therefore, he proclaimed on several occasions that he no longer had any interest in contributing toward the household bills.

Husband owns a trailer located in Lawn. Esther lived in this trailer for a time prior to 2008. However, the trailer has been vacant since 2008. Wife stated that husband has spent a considerable amount of time “fixing up” the trailer in his spare time. Still, husband claims that the trailer is unlivable because of its poor condition. In support of his claim, husband presented photographs that he claimed were accurate depictions of the current condition of the trailer. However, on cross-examination, wife’s attorney pointed out that the stamp on the back of the photographs revealed that they were developed in 2008.

Based upon the above testimony, wife seeks to exclude husband from residence. Husband testified that he has hopes of salvaging his marriage and wants to remain in residence in order to do just that. Wife’s motion for exclusive possession of residence is now before us for disposition.

II. LEGAL PRINCIPLES

Exclusive possession of a marital residence is a concept that first surfaced in Pennsylvania during the early I980’s. In the case of Laczkowski v. Laczkowski, 496 A.2d 56 (Pa. Super. 1985), the Superior Court ended all debate about whether Courts possess the authority to award possession of a marital home during the pendency of a divorce. Citing the “full equity power and jurisdiction” of courts in matrimonial cases, the Superior Court stated: “we hold that the lower court had the authority to temporarily award the marital residence, pending equitable distribution of marital property, to a spouse having physical custody of a minor child.” Id. at 60.

In 1990, the authority of a court to award exclusive possession of a marital home was codified. 23 Pa.C.S.A. § 3502(c) reads: “The court may award, during the pendency of the action or otherwise, to one or both of the parties the right to reside in the marital residence.” Surprisingly, no appellate court precedent has been articulated since Laczkowski and its codification at § 3502(c) of the divorce code. However, quite a few common pleas courts have wrestled with the concept. We will highlight several.

The case of Uhler v. Uhler, 41 Pa. D. & C. 3d 3 (1985), aff'd, 626 A.2d 656 (Pa. Super. 1993), involved a home that was damaged by fire. For six months prior to the fire, Mrs. Uhler resided alone at the marital residence. As the home was being reconstructed, Mr. Uhler voiced a desire to return and live at the newly reconstructed house. The Lancaster County Court of Common Pleas cited “the presence of children in the home and their emotional welfare” as the “most important consideration.”

The court concluded:

The case at bar does not present a situation which would compel the court to enter an award of exclusive possession of the home....
The equitable remedy of exclusive pendente lite possession of the “marital” home is an award which is to be used sparingly. The situation presented by petitioner does not give rise to the protections afforded by the divorce code. 41 Pa. D. & C. 3d at 6-7.

In Vuocolo v. Vuocolo, 42 Pa. D&C 3d 398 (1987), the Lawrence County Court of Common Pleas reached a result different than the one is Uhler, primarily because it focused on the interest of the parties’ 15-year-old son. The court in Vuocolo stated:

The decision to allow one spouse exclusive possession of the marital residence has frequently turned on the needs of minor children, on the age and health of the parties, and on their financial needs and resources....
...The marital residence is the only home [the parties’] son has known.... 42 Pa. D. & C. 3d at 406 (citations omitted).

In Merola v. Merola, 19 Pa. D. & C. 4th 538 (1993), the court granted exclusive possession of a marital home even though the parties had no minor children. Merola involved a vulnerable wife who was confined to a wheelchair and needed daily assistance from the parties’ adult daughter. Although the court recognized and respected the fact that Mr. Merola loved his wife and did not want to separate, it nevertheless concluded that a one-year exclusion from the marital residence was appropriate. In rejecting the argument that exclusive possession should be awarded only in a case involving children, the court stated:

This court finds that the Superior Court in Laczkowski v. Laczkowski, supra, did not specifically confine its ruling solely to cases in which there is a minor child. Where there is, as in the within case, a woman who is vulnerable because of her serious illness, and her mental and emotional health and welfare is compromised by the ever-present knowledge that defendant can move in and out of the marital home on weekends at defendant’s own pleasure and whim, there is good reason to award temporary exclusive possession to said woman. 19 Pa. D.&C. 4th at 541.

In Duzgun v. Duzgun, 76 Pa. D. & C. 4th 538 (2005), the court described exclusive possession as a “harsh remedy that will not be awarded cavalierly.” Although Mrs. Duzgon stated that her husband’s “occasional” telephone conversations with his girlfriend caused “tension in the household,” the court found no reason to award exclusive possession to only one spouse. The court stated:

Here this is no allegation of spousal or child abuse. The parties are separated but living under the same roof. They have reached an accommodation — wife sleeps upstairs in her bedroom and husband sleeps downstairs in the basement.
They have worked out financial arrangements with husband paying the mortgage, electricity, oil bills and a portion of the food expenses wife pays for her own telephone bills, some of the food expenses and occasionally heating expenses. Wife pays for the children’s dental bills and husband pays for medical bills....
...I do not find that wife has established a clear need to exclude husband from the residence. 76 R D. & C. 4th at 542-543.

The final case we will cite is Chappell v. Chappell, 81 Pa. D. & C. 4th 235 (2007). Chappell focused upon the parties’ 17-year-old daughter, who was a straight A student and a member of the National Honor Society. The daughter wanted to remain in the marital home and graduate from the school in which she excelled. The problem was that her father retained possession of the marital home upon separation and the daughter’s relationship with her father was strained. Based upon the above facts, the court awarded exclusive possession of the marital real estate to the wife so that she could raise the parties’ daughter until graduation.

After reading and reviewing all of the above cases, we reach the following conclusions about Pennsylvania law:

(1) Exclusive possession of a marital home is not a remedy that should be awarded “cavalierly” or without compelling cause.
(2) Exclusive possession of a marital home is not exclusively dependent upon the need to protect children. Although Laczkowski, supra, limited its holding to cases involving children, the subsequent enactment of § 3502(c) of the Divorce Code did not contain any such limitation. We will read § 3502(c) as it was written — to apply to all marital cases whether or not the parties had children.
(3) Even though the interests of children are not required in order to grant exclusive possession of a marital home, the existence of children in a household is a key factor that courts must consider in deciding whether to award exclusive possession. We will more readily award exclusive possession in the case when the welfare of children is at stake than we will in a case where no children are involved.
(4) In a case where the welfare of children is not at stake, we will consider a multitude of factors, including the health of the parties, the extent to which tension in the household causes emotional trauma, the financial wherewithal of the parties to separately maintain two residences, and the ability of the excluded spouse to obtain adequate living arrangements elsewhere.

III. DISCUSSION

In this case, there are no minor children in the parties’ household who will be affected by our decision. On the other hand, two of wife’s adult children are living in the marital home and have been profoundly affected by husband’s presence. Moreover, wife’s daughter is pregnant with her first child and has claimed that husband’s presence in the marital home has made her pregnancy more difficult.

With respect to family finances, the good news is that both husband and wife enjoy good jobs in the medical profession. The bad news is that the parties are not contributing equally toward the expenses of the marital home. For at least the past several months, wife has been solely responsible for paying all of the major household expenses without any financial assistance from husband. This is a factor we will weigh in favor of wife’s motion for exclusive possession.

Another factor to be considered is the behavior of the parties and the tension that behavior creates within the marital abode. With respect to this factor, the parties presented starkly differing testimony. Mother and Esther painted a picture of husband as a nearly psychopathic vindictive man who would use any means at his disposal to make wife’s life miserable. Amazingly, husband testified that he did not even perceive that a problem existed between himself, his wife and Esther. As with most instances where a party’s perception is colored by his/her perspeclive, we find that the truth lies somewhere between the extreme evidence presented by the parties.

Husband and wife have conflicting work schedules that create the perfect opportunity for misunderstanding and strife. Wife arrives home at about 11:00 p.m. and husband arrives at the marital home at about 3:30 in the morning. Apparently, this schedule did not create a problem early in the parties’ relationship. At times, the parties would use the early morning hours after husband’s arrival as their “together time.” As the marriage soured and after Esther moved back into the marital abode, wife wanted to use the early morning hours to sleep. Husband wanted to use these hours to connect with wife. As a result, husband would frequently awaken wife when he returned to residence. After wife filed her divorce complaint, she viewed husband’s awakening of her as harassment while husband viewed his awakening of wife as a means to reconnect and restore his failing marriage.

As we see it, there is a time and a place for everything. 4:00 a.m. is not the time to save a marriage by awakening one’s spouse. Accordingly, we will view this behavior by husband as a factor to be weighed in favor of wife’s request for relief.

We must also consider whether husband would have the ability to relocate to another residence upon eviction. Both parties presented testimony regarding a trailer owned by husband that is located in Lawn, Pennsylvania. According to husband, the trailer is in very poor condition and has a leaking roof. Husband indicated that it would not be possible for him to live at the Lawn trailer. To dispute this testimony, wife indicated that husband has spent a considerable amount of time working to “fix” the Lawn trailer over the past two years. She also points out that the photographs presented by husband to depict the Lawn trailer were stamped with a 2008 date of development. However, wife was not able to present any direct testimony regarding the current condition of the Lawn trailer.

We do not know whether husband’s Lawn trailer is ready for immediate occupancy. However, we do know that husband is blessed with a good job. We also know that husband has been paying next to nothing as living expenses over the past six months. Therefore, we conclude that husband possesses more than enough resources to enable him to procure a new residence.

There is one final factor upon which we place more than just a little weight. Wife is the exclusive owner of residence from which she seeks to exclude husband. More important, wife owned residence prior to the parties’ marriage. Thus, residence will be considered non-marital property at the time of the parties’ divorce. The non-marital nature of residence is important because it signals that husband’s departure from residence is inevitable. When the parties’ divorce is finalized, wife will retain ownership and exclusive possession of residence.

IV. CONCLUSION

As we weigh all of the above factors, we conclude that wife should be awarded exclusive possession of residence. Sooner or later, husband will have to vacate residence. We see no reason why sooner is not best and we perceive many reasons why later could be problematic. On the other hand, we do not view “soon” as meaning “immediate.” residence has been husband’s home. He will need time to locate new living quarters, pack his belongings and then effectuate the move. We will give him that time.

By an order entered simultaneous with this opinion, we will be awarding wife exclusive possession of residence effective April 1, 2011. Until that date, husband may continue to utilize residence as his residence provided that he pays to wife one-third of the mortgage, property taxes, property insurance and utility expenses of the marital home and provided that he does everything in his power to avoid awakening wife and Esther when he returns home from work.

ORDER OF COURT

And now, to wit, Februaiy 4,2011, after hearing and in consideration of the arguments of the parties, the order of this court is as follows:

1. Exclusive possession of the premises located at 204 East Walnut Street, Lebanon, Lebanon County, Pennsylvania is awarded to Yomaris Reynolds effective April 1, 2011.
2. For the months of February and March of 2011, Donald Reynolds shall reimburse Yomaris Reynolds for one-third of the mortgage, taxes and utilities pertaining to 204 East Walnut Street.
3. Donald Reynolds shall use his best effort to avoid awakening other occupants of the house when he arrives home from work.

      . Emotional trauma alone will not give rise to an eviction under Pennsylvania’s Protection from Abuse Act. However, we can and will consider it as a factor in awarding exclusive possession.

      . We say one-third instead of one-half because vve agree with husband that wife’s adult children should also contribute to the expenses of the household.