author: SNITE, J.,

text:
    Mahoney Realty Group, Inc. v. Lamm

      Andrew L. Miller, for plaintiff.

      Michael S. Silberman, for defendants Lamm Realty Group, LLC, Parliament Consulting, Ferry Development General, LLC, Edward Alan Webber, Insite Realty Advisors, LLC, Deep Sea-GP, LLC and Harvey Lamm

      Edward S. Robson, for defendant Edward Alan Webber

      Oliver D. Griffin and Joseph L. Doherty, for defendant Davin Lamm
    February 14, 2013
   SNITE, J.,

On January 8, 2013 this court ruled on a motion for summary judgment in the above captioned matter. By order dated January 8, 2013 this court granted the summary judgment motion of defendants in its entirety and entered judgment in favor of defendants and against plaintiff with respect to claims asserted by plaintiff in the third amended complaint. On February 6,2013 this court received notice that defendants had filed an appeal to the Superior Court of Pennsylvania from this court’s January 8, 2013 order.

DISCUSSION

This court adopts, as its opinion on appeal, the order and opinion dated January 8, 2013, which sets forth this court’s reasoning. This opinion is incorporated herein by reference. This court asks that the January 8, 2013 order be affirmed.

I. PROCEDURAL HISTORY

Defendants Davin Lamm and Edward Alan Webber (“Webber”), individually and d/b/a Deep Sea Associates, LP, Ferry Development, LP, Insite Realty Advisors, LLC, Parliament Consulting, and Lamm Realty Group, LLC, Harvey Lamm, Deep Sea-GP, LLC, d/b/a Deep Sea Associates, LP, Ferry Development General, LLC d/b/a Ferry Development, LP, Insite Realty Advisors, LLC, Parliament Consulting and Lamm Realty Group, LLC, filed a motion for summary judgment on all causes of action in this lawsuit, that claims, breach of contract, fraud, civil conspiracy, unjust enrichment, usurpation of business opportunity and conversion. Plaintiff filed a motion for partial-summary judgment concerning liability only.

II. FACTUAL HISTORY

A. Introduction.

This case hinges on whether or not defendants were engaged in [permitted] “other business” when they sold and/or leased properties belonging to Ferry and Deep Sea, LP, without paying plaintiff commissions thereon. Plaintiff’s claims in this action arise from a business relationship between itself, Mahoney Realtor Group (“MRG”) and the [primary] individual defendants, Davin Lamm and Webber.

Plaintiff argues that provisions of the independent contract agreement (“agreement”) required defendants to pay commissions to MRG on properties that were purchased or leased by Ferry Development, LP (“Ferry Dev., LP”) and Deep Sea Associates LP (“Deep Sea, LP”) through their managing Limited Partner, Davin Lamm. Defendants argue that MRG was not due commission unless (1) defendants received commission or brokerage fees for the transactions or (2) defendants entered into a listing agreement with MRG for the property.

1. Parties and Properties.

Plaintiff, MRG, is a licensed real estate brokerage firm located in Ardmore, Pennsylvania. The primary individual defendants, Davin Lamm and Webber, were real estate agents at MRG. Davin Lamm, MRG’s vice president, was an agent of MRG’s from on or about 1999 until August 24, 2009. Webber was hired originally in 2007 as an unpaid intern. Webber was hired as a real estate agent in 2008, upon completion of college and licensing as a real estate agent in Pennsylvania. Webber was also terminated on August 24, 2009 from MRG. As stated, individual defendant Harvey Lamm’s only relation to this case is as a member of Ferry Gen., LLC and as a limited partner in Ferry Dev., LP.

Deep Sea GP, LLC (“Deep Sea, LLC”) is aPennsylvania limited liability corporation and the general partner of Deep Sea, LP. Davin Lamm is managing member of Deep Sea, LLC and a limited partner of Deep Sea, LP. Ferry Development General, LLC (“Feny Gen., LLC”) is a Pennsylvania limited liability corporation and the general partner of Ferry Dev., LP. Davin Lamm is a managing member and Harvey Lamm a member of Feny Gen., LLC. Davin Lamm and Harvey Lamm are limited partners of Ferry Dev., LP.

Davin Lamm negotiated the following purchases and leases of Deep Sea, LP in his capacity as a member of the general partner of the owner, Deep Sea, LLC. Deep Sea, LP purchased 3156 and 3162-64 Kensington Avenue in or around June, 2004 and February 17, 2006. The properties were purchased for a sale price of $325,000 and $150,000. A brokerage fee for each property was paid only to the seller’s broker, at a five (5) and three (3) percent fee. According to the settlement statement, a $4,500.00 commission was paid to MRG for the 3162-64 property. Deep Sea, LP leased 3156 Kensington Avenue to three tenants: Hispanic Community Services, Foot Locker, and Esperanza Health Center. The leases were executed on February 15, 2005, July 19, 2005 and May 2, 2007 respectively. The only broker to receive any commission was Foot Locker’s broker, NIAFliffman, in the amount of $31,000.00.

Davin Lamm negotiated the following purchases and leases of Ferry Dev., LP in his capacity as a member of the General Partner of the owner. Ferry Dev., LP purchased 3000 Grays Ferry Avenue and 3000 Oxford Street on or about July 17, 2007. The properties were purchased for $1.45 million and $1,925 million respectively. No brokerage fees were paid to any broker in either transaction. Ferry Dev., LP leased 3000 Grays Ferry Avenue to three tenants: Rite Aid, Gray’s Ferry Community Counseling Service, Inc., and Philadelphia Consortium for Community Services, LLC. No brokerage commissions were paid on these leases.

Parliament Consulting, LLC (“Parliament, LLC”) is a Pennsylvania limited liability company which was started by Webber in order to further his unpaid, marketing intern project for the leaseholds of the properties held by Deep Sea, LP and Ferry Dev., LP. Parliament, and therefore Webber, received no commission or fees in the performance of these marketing endeavors. Insight Realty Advisors, LLC, (“Insight, LLC”) is a Delaware limited liability company, which marketed and/or advertised some of the Greys Ferry Avenue properties. Davin Lamm is a shareholder of Insight, LLC.

Lamm Realty Group, LLC is a Pennsylvania limited liability company, alleged to be licensed as a real estate brokerage in the third amended complaint. There is no further reference to LRG after the third amended complaint.

2. Agreement and Use of MRG’s Facilities.

MRG bases its claims only on the independent contractor agreement between itself and Davin Lamm and any agency relationship that arose from said agreement. The record is clear that MRG had no oral or written listing agreements with respect to these properties on which it seeks to secure a commission.

It is undisputed that both Webber and Davin Lamm utilized MRG’s facilities in furtherance of some or all of their business activities. Their use of MRG’s facilities and business property included use of MRG’s computers, printers, internet [black and white] copier(s), standard forms, mailing address, listing database and a very limited use of MRG’s administrative assistant. Additionally, Davin Lamm, and Webber used MRG’s trademark, email address, and other like commercial identifiers in commerce. It is unclear whether said use was known and permitted by MRG’s owner, Mr. Mahoney.

3. Expert Report.

MRG obtained an expert report from Attorney Heller, who, in addition to having a law license also has a real estate license. Mr. Heller offered his opinion in respect to the following question posed to him:

Q: “Did the fact that no commission was paid to MRG for the properties purchased by Deep Sea and Ferry, and no commission was paid to MRG by any party in the lease of these properties, result in additional value which benefitted Mr. Lamm?
A: “The fact that no commission was paid on these transactions almost certainly allowed Mr. Lamm’s partnerships to obtain additional value in the form of either a lower price and increased rent at more favorable terms for the leases obtained... The commission payable by parties in a commercial [sale] transaction can vary from three (3) percent to ten (10) percent... If a commercial tenant comes to a landlord without a broker, that tenant is less expensive and hence, is more attractive than one who is represented.” (page 3).

Mr. Heller did not explain how the value of the services used by defendants, such as the use of the computer, printer, internet, [black and white] copiers, listing database and administrative assistant, should be accurately calculated. Mr. Heller did not explain how the value of the trademarks and “good will” associated therewith should be accurately calculated. Neither the record nor Mr. Heller identifies a single, specific tenant obtained exclusively through the use of MRG’s facilities or under any exclusive listing agreement with MRG.

III. LEGAL STANDARD

This court finds that the above captioned defendants are entitled to summary judgment as a matter of law because there is no issue of material fact once the questions of legal interpretation are disposed of by the court.

The standard for summary judgment in Pennsylvania is set forth in Pa.R.C.P. 1035.2 as follows:

“After the relevant pleadings are closed, but within such a time as to not unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law...
(2) if, after the completion of discovery relevant to the motion, including production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to the jury.”

IV. DISCUSSION:

A. Introduction.

Summary Judgment for the defendants’ is appropriate because plaintiff has failed to produce any evidence on damages. Wallace v. Klehr, Harrison, Harvey, Branzburg & Ellers LLP, 2011 Phila. Ct. Com. PL LEXIS 374 (December 20,2011). Here, MRG must produce evidence of: 1) either a contractual or a societal duty owed by defendants to MRG, 2) defendants breach of that duty, and 3) damages MRG suffered as a result of that breach. Wallace v. Klehr, Harrison, Harvey, Branzburg & Ellers LLP, 2011 Phila. Ct. Com. PL LEXIS 374 (December 20, 2011) (citing cases See Bortz v. Noon, 556 Pa. 489, 499 (1999) (fraud); Kituskie v. Corbman, 552 Pa. 275, 281 (1998) (professional negligence); Estate of Stetson, 463 Pa. 64, 84 (1975) (breach of fiduciary duty); Pittsburgh Constr. Co. v. Griffith, 834 A.2d 572, 580 (Pa. Super. 2003) (breach of contract).

First, as a matter of law, the court finds that the agreement between the parties does not preclude individual agents from selling, buying or leasing their own property where there is no listing agreement and they receive no commission on behalf of their broker. Based on this finding, the court finds that the plaintiff failed to show a breach of any contractual duty.

Second, the court finds that the plaintiff has still failed to prove damages; the only evidence on damages offered a means of calculating damages for which plaintiff is not entitled to collect.

B. The Agreement Does Not Give Plaintiff an Automatic Interest in Commissions for Deep Sea, LP and Ferry Dev., LP’s Properties.

Based upon the language of the agreement at issue, this court has determined that defendants had an unfettered right to buy, sell and lease any properties owned by them or their companies, so long as they did not receive any commission or fee. Absent a listing agreement on these properties, there is simply no clause that precludes defendants from acting on their own properties in furtherance of developing their businesses in the market of business acquisition and leasing, a separate market from real estate brokerage.

1. Under Paragraph 5(a), Agreement, in relevant part, it provides as follows:

“Nothing herein [or any other provision] shall be construed to give [MRG] any right or authority to direct [Davin Lamm and Weber] to...restrict [Davin Lamm’s and Webber’s] business geographically, or to prohibit [Davin Lamm and Webber] from engaging in any other lawful business or commercial activity, profession, occupation or the like”. Para. 5(a).

The court interprets this provision to permit defendants, Davin Lamm and Webber, to engage in any business activity that is not real estate brokerage in its ordinary course. Thus, this provision would be violated if Davin Lamm and/or Webber accepted commissions as a brokerage, but not if they simply sold property, sans broker, as any other non-broker would also be free to do.

Given the court’s interpretation, defendants’ activities constituted real estate acquisition and leasing, not real estate brokerage. The defendants were acting as principals, who ordinarily would be the clients of plaintiff, not his competitors. Accordingly, they were engaging in “other lawful business or commercial activity...”

2. Under Paragraphs 5(a), 5(h) and 2(c) of the Agreement, in relevant part it provides:

“Associate agrees to obtain all listings and to close all lease and/or sales in the name of Broker for the benefit and use of Broker...” and
“Associate shall have no authority to bind, obligate or commit Broker by any promise or representation, unless Associate secures prior written authorization in connection with a specific transaction.” Para. 5(h) and
“In no event shall associate charge less than the commission or fee established by Broker...” Para. 2(c).

This court finds that the above language only binds defendants once plaintiff has a vested interest in the sale or lease in one of Davin Lamm’s properties. Paragraph 5(g) of the agreement, which imports RELRA into saidagreement, mandates this conclusion. Under RELRA, written “listing agreements” are a prerequisite to entitlement of real estate brokerage fees, commissions or other compensation under the Pennsylvania Real Estate Licensing and Registration Act (“RELRA”). 63 P.S. §455.101, et seq.

It is undisputed that there were no listing agreements entitling plaintiff to any commissions with respect to the properties at issue. Since defendants had no duty to pay commissions on the transactions, there was no breach of contract.

3. Paragraph 5(g) of the Agreement, in relevant part provides as follows:

“Associate specifically may not use materials or letterheads showing Broker’s name, trademark or trademark for correspondence or communication in associate’s personal business in which Broker is not involved. Associate shall not make any untrue statement of material fact or fail to state a material fact necessary to make the statement not misleading to clients or customers.”

The court finds the above language to preclude two different activities: The first clause refers to the associates interaction withnon-MRG customers. This clauseprecludes the associate from misappropriating plaintiffs “trade dress”. For instance, using plaintiffs source-identifying email address, letterhead and the like would breach the duty owed to MRG under this clause. The second clause refers to associates interaction with MRG customers. This clause precludes the associate from, inter alia, fraudulently inducing a customer into a transaction while said associate was acting as MRG’s agent. Accordingly, it has no bearing on any lies defendants may wish to tell outside their role as an agent of MRG.

Given the court’s interpretation of the above clause, it does find that there is evidence to show that defendants breached their duty owed to plaintiff under the first, but not the second clause. Notwithstanding this, plaintiffs breach of contract action fails, because there is not a single fact as to the damages incurred as a consequence of the averred trademark infringement.

C. Plaintiff has failed to prove any damages resulted from any averred breach of duty owed to MRG.

Plaintiff’s fraud, unjust enrichment, usurpation of business opportunity and conversion causes of action recasts their primary breach of contract argument in tort. First, plaintiffs fraud count avers that because Davin Lamm and Webber were real estate agents pursuant to the agreement, they had a duty to disclose their conduct to MRG. Second, the plaintiffs usurpation of business opportunity count avers that because Davin Lamm and Webber were real estate agents pursuant to the agreement and because they used plaintiff’s facilities, they had a duty to bring all business opportunities to MRG. Third, the plaintiff’s conversion claim avers that because defendants were real estate agents under the agreement, MRG had a vested interest in commissions that should have been derived from these properties. Fourth, the plaintiffs unjust enrichment claim avers that the use of plaintiffs property conferred an unjust benefit on defendants, which defendants appreciated and accordingly plaintiff should be compensated. Finally, plaintiffs civil conspiracy claim is based on a conspiracy by two or more defendants to commit one or more of the above torts.

1. Defendants did not commit fraud.

To survive summary judgment on plaintiffs fraud cause of action, there must be sufficient facts to show: (1) misrepresentation, (2) fraudulent utterance thereof, (3) an intention by the maker that the recipient will thereby be induced to act (4) justifiable reliance, and (5) damage proximately caused. Delahanty v. First Pa. Bank, N.A. 464 A.2d 1243, 1245 (Pa.Super. 1983).

Plaintiff’s fraud claim fails because defendants, Davin Lamm and Webber, did not misrepresent any statement of material fact. Plaintiff argues that defendants owed MRG a duty to disclose their business ventures because they were real estate agents of MRG. This argument is premised on the incorrect assumption that defendants were prohibited from selling or leasing their companies’ property without doing so through the brokerage of MRG. As stated supra, the scope of their agency, as defined by paragraph 5(a) of the agreement, does not include this type of conduct. Accordingly, it was not the type of omission that could establish a fraud cause of action.

Furthermore, to the extent that their allegedly undisclosed use of plaintiff’s facilities and trademark could conceivably constitute a misrepresentation, plaintiff again has not averred a single fact that could support a claim for damages. Noon, 556 Pa. at id. Without a listing agreement or some vested interest in a commission, there is no causal nexus between the use of plaintiff’s facilities and trade dress and potentially hundreds of thousands of dollars in commissions.

2. Defendants did not breach a fiduciary duty or usurp a business opportunity.

Several of plaintiff’s usurpation of a business opportunity claims could be construed as breach of fiduciary duty, notwithstanding its pleading to the contrary. Accordingly the two causes of action will be disposed of together.

To survive summary judgment on breach of fiduciary duty, plaintiff must aver sufficient evidence to support the following elements: (1) defendants owed MRG a recognized fiduciary duty, (2) defendants breached that duty and (3) thereby caused damages. Reading Radio, Inc. v. Fink, 8333 A.2d 199 (Pa. Super. 2003). Similarly, an agent usurps a business opportunity if “he breaches his duty not to compete with his principal concerning the subject matter of his agency...” Levy and Surrick v. Surrick, 362 Pa. Super. 510, 524 (1987).

Plaintiff has failed to aver facts that would show any breach of duty caused plaintiff damages of the type complained of. Defendants had no duty to sell or lease their companies’ properties through MRG’s brokerage. In the same vein, defendants were not in competition with MRG when they sold or leased these properties. Defendants’ only contact with plaintiffs market, the market of real estate brokerage, was as a potential client who ultimately found brokerage services unnecessary. Therefore, the fact that plaintiff would have been richer, had defendants chosen to use his brokerage services, does not constitute damages for either breach of fiduciary duty or usurpation of a business opportunity.

3. Defendants did not convert Plaintiffs property.

To survive summary judgment, plaintiff must aver sufficient facts to show that there was: (1) an unlawful deprivation, (2) with the chattel of plaintiff and (3) [plaintiff] had actual or constructive possession over said chattel. McKeeman v. Corestates Bank, N.A. 2000 Pa. Super 117 (Pa. Super. Ct. 2000); Eisenhauer v. Clocktower Ass’n, 582 A.2d 33, 36 (1990). Commissions and money derived during the course of an agency can be a chattel. E.g., Ins. Adjustment Bureau, Inc. v. Allsate Ins. Co., 860 A.2d 1038, 1043 (Pa. Super. 2004).

To make out a cause of action for conversion under an agency theoiy however, plaintiffs must aver facts that would show that the commissions were obtained within the scope of defendants’ agency. Defendants were not working as agents of MRG, but as agents of their respective companies, when they purchased and leased their companies’ properties. To the extent that they utilized MRG’s facilities to effectuate their goals, that could be unjust enrichment, not conversion. Kribbs v. Jackson, 129 A.2d 490, 618 (1957). Accordingly, as with all the previous tort causes of action, plaintiff failed to show damages for the actual harm caused.

4. Defendants were unjustly enriched, but Plaintiff failed to show an accurate means of calculating damages.

To survive summary judgment for unjust enrichment, plaintiff must show: “(1) MRG conferred benefit defendants, (2) Defendants appreciated such benefits and (3) acceptance & retention of such benefits under circumstances that it would be inequitable for defendants to retain the benefit without payment of value.” Northeast Fence and Iron Works, Inc. v. Murphy Ouigley Co., 933 A.2d 664, 667 (Pa. Super. 2007) (citing Lackner v. Glosser, 892 A.2d 21, 34 (Pa. Super. 2006).

It is clear that plaintiff conferred a value on defendants who were allowed to use MRG’s facilities and trade dress. Defendants appreciated this value as it furthered their separate business ventures without the ordinary start-up costs. However, plaintiff failed to aver sufficient facts to support its unjust enrichment cause of action because the only damages relate to commissions, not the “value” of the benefit conferred-the use of facilities and trade dress.

5. Defendants did not commit civil conspiracy because there is no independent tortious cause of action averred.

With respect to plaintiffs civil conspiracy cause of action, plaintiff were required to aver facts for each of the following: (1) a combination of two or more persons acting with a common purpose, to do an unlawful act or to do a lawful act by unlawful means or for an unlawful purpose, (2) an overt act in furtherance, and (3) damages.” Goldstein v. Phillip Morris, 854 A.2d 585, 590 (Pa. Super. 2004).

Here, there is no question of material fact with respect to any of the above elements. First, defendants did not conspire to commit any unlawful act (see supra). Second, given plaintiff’s failure to show the first element, there of course can be no overt act in furtherance. Finally, plaintiff’s failed to show damages since their expert only testified to commission fees. Here, plaintiff was not owed commissions.

V. CONCLUSION

Defendants did not breach any duty owed to plaintiff when they purchased and leased properties without paying a commission to plaintiff because plaintiff had no legal interest in the receipt of a commission. Defendants did breach paragraph 5(g) of the agreement when they used plaintiffs trade dress in commerce, however, plaintiff has offered no [sic “on” in original opinion] evidence on the element of damages.

Plaintiff’s arguments to the contrary are unpersuasive; they merely attempt [sic “attempts” in original opinion] to re-cast an unjust enrichment claim as many other causes of action. Nonetheless, plaintiff failed to provide a single fact from which a fact finder could measure damages under an unjust enrichment claim. Accordingly, “[t]he court cannot allow the jury to speculate” as to an appropriate amount of damages, if any, “without any evidence upon which to base its decision.” Wallace, 2011 Phila. Ct. Com. Pl. LEXIS 374.

      . This opinion addresses defendants’ summary judgment motion, because in ruling that there is no issue of material fact as to all of plaintiff’s claims, plaintiff’s motion for partial summary judgment thereby becomes moot. Furthermore, both parties’ arguments in their motions in opposition predominantly track their affirmative arguments requesting summary judgment. Accordingly, in addition to plaintiffs arguments being moot, it would also be duplicative to address them.

      . Count I, breach of contract, is brought against Davin Lamm and count II, breach of contract, is brought against Webber.

      . Count III, fraud, is brought against Davin Lamm and Webber.

      . Count IV, civil conspiracy, is brought against Davin Lamm, We - ber, Deep Sea-Gp, LLC, d/ba Deep Sea Assoc., LP, Ferry Development General, LLC, d/ba/ Ferry Development, LP, Insite realty Advisors, LLC, Parliament Consulting, Lamm Realty Group, LLC and Harvey Lamm.

      . Count V, unjust enrichment, is brought against the same listed defendants in n3.

      . Count VI, usurpation of a business opportunity, is brought against the same listed defendants in n3.

      . Count VII, conversion, is brought against Davin Lamm and We - ber.

      . The only connection the other captioned defendants have to MRG, in relation to this lawsuit, is through either Davin Lamm and/or Webber. Accordingly, the relationship which this lawsuit is premised on began with Davin Lamm and Webber.

      . MRG has not plead a third-party beneficiary claim and perhaps for good reason. At least with respect to the record, there are insufficient facts to give rise to an inference that MRG would be an intended third-party beneficiary.

      . There is no evidence ofrecordto refute Webber andDavin Lamm’s assertion that the only consideration Webber received for his marketing efforts on behalf of Davin Lamm’s business’ properties was experience and rapport.

      . There is no written agreement between Webber and MRG. Both parties agree that MRG and Webber were under an oral agreement that was the same or materially the same as the written agreement between Davin Lamm and MRG. For the purposes of summary judgment this Court assumes this to be true.

      . It is disputed whether Mr. Mahoney, MRG’s owner, was aware of the extent of defendants’ use. However, since MRG was unable to prove damages, infra, whether or not he consented to said use is of little importance.

      . On occasion, mail sent to MRG’s address in the name of one of the defendant companies was given to Daven Lamm and/or Webber by the administrative assistant, Karen Santoro.

      . The second question posed, at least as answered by attorney He - ler, opined on Mr. Heller’s analysis of real estate law. Stating what the law is and what the law is not is exclusively in the province of the court. It is than the court’s duty to explain the law and its relevance to the jury, so that it may analyze the facts in accord therewith. Accordingly, Mr. Heller’s opinion as to the relevant law is not helpful to the trier of fact, since they would be informed on applicable law by this court prior to deliberation.

      . With respect to paragraph 5(g), which prohibits the use of MRG’s “trade dress”, the court finds that there is sufficient evidence to show defendants breached this provision by misappropriating some or all of MRG’s trade-dress. Nevertheless, plaintiffs failed to aver any facts relating to damages for this breach.

      . “Associate and broker agree to perform their business in acco - dance with [RELRA].”

      . Under §455.606a(b)(l) of RELRA, a real estate broker is “...not entitled to recover a fee, commission or other valuable consideration in the absence of...a signed agreement” setting forth the “...nature of the service and the fee to be charged...” by the broker.

      . For purposes of this opinion, the court assumes, but does not d - cide, that most or all of these causes of action would also fail under the “gist of the action doctrine”.

      . The court treats the fraud claim as a breach of fiduciary duty claim as well.


source: Caselaw Access Project

author: DINUBILE, S.J.,

license: Public Domain

text:
    Wolf v. Kotsopoulos

      Jay M. Borowsky and Marc Vogin, for plaintiff

      Eric S. Carroll, for defendant
    February 26, 2013
   DINUBILE, S.J.,

This is an appeal by the plaintiff, Arleen Wolf (hereinafter referred to as “plaintiff’) from a denial of post trial motions on December 17, 2012 and entry of judgment in favor of defendant, George Kotsopoulos (hereinafter referred to as “defendant”). Although the finding in favor of defendant and against plaintiff was announced at the conclusion of the trial held on October 18, 2012, no formal decision was entered until the filing of the findings of fact and conclusion of law on October 24, 2012. See, findings of fact and conclusions of law as well as this court’s order denying post trial motions, which are made part of this record.

At first blush, this case appears to be a simple demand for payment on a note to secure a mortgage. Since the obligor failed to pay, it would appear that the obligee on the note should recover. The particular facts of this case dictate otherwise. The note in question was signed by the defendant on January 9, 2003 in favor of the plaintiff, purportedly to secure a mortgage on the second floor duplex located at 33 IB South 41st Street Brigantine, New Jersey (hereinafter referred to as “property” or “premises”). The face amount of the note was for $131,000.00, payable in 30 years at an annual interest rate of 6%. Monthly payments of $784.41 had been made by an entity known as Wolf Properties until March of 2011. Thereafter, no further payments were made. Plaintiff then sued defendant for the balance due of $114,867.28. As stated, this court found in favor of the defendant holding that by virtue of the sale of his interest in the property in April 2004, his obligation under the note was extinguished.

The facts and circumstances surrounding the background, execution, and payment of the note are far from simplistic. Before his death in October 2006, Edward Wolf, the plaintiff’s husband, was an attorney who practiced law as a partner in a law firm in which his son, Michael Wolf, was a member and later a partner. Michael Wolf was also the stepson of the plaintiff. Over the course of the years, in addition to practicing law together, father and son also entered into a real estate enterprise venture in which properties were purchased, rehabilitated, rented, and sold. After Edward Wolf’s death, litigation arose in this court in 2008. The case came before the Honorable Albert W. Sheppard of the commerce court division in 2010. The suit, simplistically put, involved the plaintiff, both individually and as the co-executor of her deceased husband’s estate against the interests of her step-son, Michael Wolf. Plaintiff’s position in this earlier suit was that she and the estate possessed an interest in all of these properties that comprised the real estate venture. To the contrary, Michael Wolf asserted that there existed a joint tenancy with right of survivorship between him and his father; therefore, upon his father’s death, the properties passed to him. Judge Sheppard, by his findings in August of 2010, determined that the overwhelming maj ority of the real estate (24 of 27 properties) passed to Michael Wolf as a joint tenant with right of survivorship, denying plaintiff and the estate any interest therein. The remaining properties were awarded, along with certain monetary adjustments, to plaintiff and the estate. See Judge Albert W. Sheppard’s finding and opinion dated August 16, 2010, as well as his supplemental order and opinion dated January 24, 2011, which are made part of the record.

With this background in mind, the court’s factual determination in favor of defendant can be discerned more readily. The defendant, who is also an attorney, and Michael Wolf were close friends. Michael Wolf owned a home in Brigantine, NJ across the street from the property. The premises was a duplex in which the defendant owned the street level unit. It was proposed sometime in 2002 that the defendant, together with Michael Wolf, purchase the upstairs unit. The defendant was actively involved with a real estate title group. Title insurance had been purchased for some of the properties by the Wolf real estate venture through the group. Financing for the purchase of this property was firstobtainedthroughthedefendant’scontacts; shortly thereafter, the property was refinanced though Roxborough - Manayunk Bank (hereinafter referred to as “RMB”). RMB had financed many of the Wolf properties. About five or six months after the refinancing, in January of 2003, Mr. Wolf brought in his father to become a co-owner of the property. The father and son were to own 2/3 of the Property, and the defendant was to own 1/3. Edward Wolf also agreed to pay off the mortgage and include this Property as part of the Wolf real estate holdings. Since the defendant was receiving the benefit from the satisfaction of the RMB mortgage, Edward Wolf and his son had the defendant execute the note in question on January 9,2003. The obligee on the note was not Edward Wolf, however, but rather his wife, the plaintiff. She, over the years, had participated in the Wolf real estate venture with her husband and stepson. The check to pay off the mortgage to RMB in the amount of $131,000.00 was drawn on a joint account of the plaintiff and her husband on the same date as the execution of the note on January 9, 2003. She knew nothing of the existence of this particular note until some years later and never saw the original, obtaining a copy for the first time in 2006.

In April of 2004, defendant transferred his interest in the property to Michael Wolf and his father for the sum of $31,000.00, representing defendant’s 1/3 equity interest in the property. The money was paid to defendant by the real estate enterprise though a check paid to the enterprise from the plaintiff and Edward Wolf’s joint account. At the time of the transfer, defendant received the original note from Edward and Michael Wolf. Since his obligation on the note was fulfilled, he destroyed it.

Plaintiff argues that defendant is obligated to pay the balance owed on the note because the two checks issued on plaintiff’s joint account with her husband, Edward Wolf, namely the January 2003 check of $131,000.00 and the $31,000.00 check issued at the time of the transfer of defendant’s interest in April 2004, supports this contention. It is asserted that the January 2003 sum of $131,000.00 paid off the RMB mortgage evidencing plaintiff’s consideration as an obligee on the note in question. This court disagrees with that contention. The transfer of defendant’s interest in the property terminated his obligation under the note. It must be first noted that Judge Sheppard, in his opinion of August 2010, made reference in a footnote that defendant had transferred his interest in the property to the Wolf partnership. Judge Sheppard’s opinion of August 16,2010, in the case of the Estate of Edward Wolf and Arlene Wolf v. Michael Wolf, April Term 2008, No. 03880, previously cited, is incorporated by reference into this court’s finding. See, particularly, footnote 1 on page 3 of Judge Sheppard’s opinion, dated August 16, 2010.

This court concludes that the property was part of the Wolf real estate enterprise, which passed to Michael Wolf at his father’s death. The two checks were issued on behalf of her husband and the Wolf enterprise. Therefore, the enterprise owned the properly, and not plaintiff. The sale of the defendant’s interest in April 2004, coupled with the turning over of the original note by Michael Wolf to defendant, supports the finding that the latter’s obligation under the note was terminated. The following facts also support this court’s findings:

1. Plaintiff had no knowledge of the note’s existence until years after it was executed.
2. The check to satisfy the RMB mortgage came from a joint account of plaintiff and her husband, which was issued without her knowledge.
3. The $31,000.00 check of April 2004 went through the enterprise to pay defendant for his interest in the Property.
4. Michael Wolf is presently the sole owner of the Property.
5. Payments on the note, beginning in February 2003 until March 2011 were never paid by defendant, but rather by the Wolf enterprise through Michael Wolf’s wife, Debbie Wolf. Consequently, this court finds in favor of defendant, George Kotsopoulos and against plaintiff, Arleen Wolf.

Plaintiff’s counsel, in post trial motions, essentially asserts that this court should reverse its fact findings to the benefit of the plaintiff. It is argued that the $131,000.00 check to pay off the mortgage on the property in question in January of 2003 and the $31,000.00 sum to pay the defendant for his equity in the property in April of 2004, came from plaintiff’s joint account with her now-deceased husband, supports the fact that she is the intended oblige on the note. This court has rejected this contention as evidenced by its findings of fact and conclusions of law of October 24, 2012. This court will not reverse these findings. See, Levitt v. Patrick, 976 A.2d 581 (Pa. Super. 2009).

It is further argued that the Wolfs had no authority to extinguish the debt to plaintiff because there was no evidence presented that they were the plaintiff’s agents. This contention misconstrues this court’s findings. This court does not assert that they were ever plaintiff’s agents, but rather were acting on their own behalf in engaging in the real estate venture. When the mortgage was paid off, and defendant’s interest in the property was purchased, the Wolfs were acting solely for themselves and not for the plaintiff. Therefore, they have every right to extinguish defendant’s obligation on the note in question.


author: PANEPINTO, J.,

text:
    Parr v. Ford Motor Co.

      Richard C. Angino, for plaintiffs

      Kristen E. Dennison, Thomas M. Hinchey, William J. Conroy and Tiffany M. Alexander, for defendants Ford Motor Company, McCafferty Ford Company, McCafferty Ford of Mechanicsburg, Inc. and McCafferty Ford Sales, Inc.

      Keisha A. Parker, for defendant Ford Motor Company
    March 1, 2013
   PANEPINTO, J.,

Plaintiffs/appellants appeal this court’s order of August 30,2012, which denied plaintiffs motion for post-trial relief and entered judgment in favor of defendants and against plaintiffs.

PROCEDURAL AND FACTUAL BACKGROUND

This crashworthiness action arises out of a two car motor vehicle accident that occurred on July 21, 2009. Plaintiffs were occupants of a 2001 Ford Excursion vehicle that was struck by another vehicle causing it to strike a guardrail and subsequently roll over down a steep embankment. At the time of the accident, Joseph Parr was operating the subject vehicle and his wife, April Parr and daughter, Samantha Parr were occupants of the vehicle. Both April Parr and Samantha Parr were injured. April Parr sustained the more serious injury, namely, a spinal cord injury which resulted in quadriplegia.

Plaintiffs filed suit against defendants alleging, inter alia, that the roof and restraint system of the 2001 Ford Excursion were defectively designed. More specifically, plaintiffs contended that plaintiff, April Parr’s spinal injuries resulted from a roof crush. Of significance is the fact that following the accident, the subject vehicle was destroyed, prior to any expert being able to examine or inspect the vehicle.

Trial began in this matter on March 3, 2012 and concluded on March 23, 2012 with a jury verdict in favor óf defendants, finding that plaintiffs failed to prove that defendants were liable under both strict products liability and negligence theories. Plaintiffs timely filed post-trial motions for a new trial, which were denied by this court pursuant to an order dated August 30,2012. On September 10,2012, plaintiffs appealed the order of this court denying their post-trial motions. On September 19,2012 this court entered an order pursuant to PA R.C.P. 1925(b) requiring plaintiffs to file a concise statement of errors complained of on appeal. Plaintiffs timely filed their 1925(b) statement and this opinion follows.

ALLEGATIONS OF ERROR

Plaintiffs’ Rule 1925(b) statement raises the following four (4) issues on appeal:

1. The trial court committed an error of law and/ or abused its discretion when it denied plaintiffs’/ appellants’ motion in limine No. 1 to preclude defendants/appellees from presenting evidence of their “diving,” “torso augmentation,” theory, which was discredited and superseded by the National Highway Traffic Safety Administration (NHTSA)’s Final Rule dated May 12, 2009.
2. The trial court committed an error of law and/ or abused its discretion when it granted defendants’/ appellees’ motion in limine No. 3 to preclude references to NHTSA standards and rulemaking documents dated 2001 to present, on the basis that the subject vehicle was originally manufactured and sold in 2011 (sic).
3. The trial court committed an error of law and/ or abused its discretion when it granted defendants’/ appellees’ motion in limine No. 9 and altogether precluded plaintiffs/appellants from offering statistical evidence prepared by NHTSA, The Insurance Institute for Highway safety (IIHS), the fatal accident reporting system, 10and/or (sic) the national automotive sampling system as to rollover fatalities involving the subject vehicle and comparable vehicles on the basis that plaintiffs/appellees (sic) were unable to prove that the statistics derived from other rollover accidents that were virtually identical to the one in the instant accident.
4. The trial court committed an error of law and/ or abused its discretion when it denied plaintiffs’/ appellants’ motion in limine to preclude defendants/ appellees from (a) presenting — and consequently filling the record with— evidence that the subject vehicle was not preserved; and (b) seeking a spoliation charge when the defendants/appellees suffered no prejudice resulting from the vehicle’s destruction.

DISCUSSION

Appellants first argue that this court erred in denying their motion in limine no. 1 which sought to preclude appellees from introducing at trial any evidence of their ‘diving’ or torso augmentation theory. Appellants also had an opportunity to argue their motion in limine no.l before this court prior to trial. This pre-trial motion no. 1 had contended that appellant, April Parr’s quadriplegic injuries had to have been caused by a roof crush and not by ‘diving.’Appellees had argued that April Parr’s injuries resulted from ‘torso augmentation’ or ‘diving’ which occurred when April Parr’s torso, loading her neck as her head, which was against the roof of the vehicle due to centrifugal force generated in the rollover accident, at the moment the roof struck the ground. Appellees contented that automobile roofs do not significantly deform or crush in rollover accidents until after the occupants have already ‘dived’ into the roofs and incurred their injuries. Appellants contended that the National Highway Safety Administration’s (NHTSA) engineers and statisticians had discredited appellees’ ‘diving’ theory as to the cause of April Parr’s injuries.

Accordingly, appellants contended at trial that this trial court should give deference to NHSTA as an administrative body and therefore preclude appellees from introducing at trial any evidence of ‘diving’ to support their defense of this product liability causes of action brought against them by appellees. However, upon review of the documentation provided to the court to support their motion, notably, the 2009 amendment to the FMVSS (Federal Motor Vehicle Safety Standard) although suggestive of appellants’ argument, failed to convince this court that either of their arguments were meritorious. First, although the 2009 amendment did cite statistical studies which found a correlation between roof crush and injury in rollover accidents, appellants’ contention that the NHTSA amendment conclusively determined that a causal relationship existed between roof crush and head and neck injury in rollover accidents, to the exclusion of torso augmentation, was not proven. Although a correlation was shown it did not provide, as appellants’

were arguing, evidence showing that it was conclusive. As such, this court determined that appellants’ contention was without merit and denied their pre-trial motion which sought to preclude appellees from presenting evidence that ‘diving’ or torso augmentation caused plaintiff, April Parr’s injuries. Both appellees and appellants presented extensive expert testimony during trial on the subject of ‘roof crush’ vs. ‘diving’ as a cause of appellant, April Parr’s injuries. In the end, the jury concluded that Ms. Parr’s injuries resulted from ‘diving’ not ‘roof crush’ and found for the appellees.

Appellants next argue that this court erred in granting appellee’s motion in limine no. 3 which sought to preclude any references during trial to NHTSA standards and rulemaking documents dated 2001 to the present, on the basis that the subject vehicle was originally manufactured and sold in 2001. Both parties had an opportunity to argue this motion in limine before this court prior to trial. Pennsylvania law requires that a plaintiff prove that an allegedly defective vehicle was defective at the time of manufacture. Duchess v. Langston Corporation, 769 A.2d 1131, 1142 (Pa. 2001). However appellants sought to introduce NHTSA standards and rulemaking subsequent to the year the subject vehicle was manufactured. It was this court’s determination that the relevant time frame for assessing the design and/or defectiveness of the subject 2001 Ford Excursion was up to and including the year it was manufactured, 2001. The standards that were in place at that time (2001) were what was relevant to appellants’ causes of action against the appellee, Ford Motor Company. At trial, appellees were permitted and did introduce evidence of NHTS A standards that existed up to the year 2001. This court found appellants’ contention that they should have been permitted to introduce NHTS A standards and rulemaking subsequesnt to the year 2001 without merit and accordingly granted appelles’ pretrial motion precluding such evidence.

Appellants next argue that this court erred in granting appellee’s motion in limine no. 9 which sought to preclude any references during trial to statistical evidence of other dissimilar accidents. Both parties had an opportunity to argue this motion in limine before this court prior to trial. Appellants contend that this court committed an error of law and/or abused its discretion when it granted appellees motion in limine no. 9. According to appellants, this court “altogether precluded plaintiffs/appellants from offering statistical evidence prepared by NHTSA, The Insurance Institute for Highway Safety (IIHS), the fatal accident reporting system, and/or the national automotive sampling system as to rollover fatalities involving the subject vehicle and comparable vehicles on the basis that appellees were unable to prove that the statistics derived from other rollover accidents that were virtually identical to the one in the instant accident.”

As appellants acknowledge, it was their burden, as the proponent of this evidence, to establish, to the court’s satisfaction, the similarity between other accidents and the subject accident before this evidence could have been admitted for any purpose. Hutchinson v Penske Truck Leasing Co., 876 A. 2d 978 (Pa. Super. 2005). During argument before this court, appellants failed to show the required similarity between the subject accident and those contained within the statistical compilations. Notably, the IIHS reports, unlike the subject accident, involved fatalities. Appellants could not establish that the facts surrounding the accidents that comprised the statistical analysis they wished to introduce before the jury were substantially similar to those in the subject accident. As it was appellants’ burden, this court found that they had not met their burden and granted appellees’ motion to preclude the statistical evidence.

Finally, appellants argue that this court erred when it denied their motion in limine which sought to preclude appellees from (1) referencing or introducing evidence during trial that the subject vehicle was not preserved and (2) seeking a spoliation charge when, as appellants contended, no prejudice resulted from the subject vehicle’s destruction. Both parties had an opportunity to argue this motion in limine before this court prior to trial.

This court initially deferred ruling on the motion. However, prior to making a decision this court did permit appellee, Ford, to introduce facts about the unavailability of the vehicle and its impact on the experts’ investigation into the cause of the accident and the injuries sustained by the occupants. As such, appellants’ counsel during cross-examination of appellees’ experts called into question their opinions and conclusions, based upon the fact that the subject vehicle was not available for them to examine and inspect.

Further, at trial the parties stipulated as to the facts surrounding the unavailability of the vehicle. Notably, appellants stipulated that two weeks after the accident and after hiring counsel, they released the vehicle to their insurance company who in turn sold the vehicle which was then destroyed. Appellants further stipulated that they did not attempt to locate the vehicle until after it had been destroyed and that appellees were not notified of legal action until after the vehicle was disposed.

In light of the above stipulation and arguments and briefs of counsel, this court denied appellants’ pre-trial motion to preclude and accordingly allowed the jury to make whatever conclusions it deemed proper. Accordingly, this court gave a permissive adverse inference instruction to the jury, instructing that it could, but was not required to, draw a negative inference against appellants from the destruction and thus absence of the subject vehicle. Clearly appellants, despite their hiring of counsel and their knowledge of their pursuit of a legal action resulting from the accident, transferred the subject vehicle out of their possession resulting in it being subsequently destroyed, thereby preventing appellees from having the vehicle inspected so as to properly defend themselves from appellants’ allegations.

CONCLUSION

For all of the above reasons, this court’s order of August 30, 2012 denying appellants post-trial motion for a new trial should be affirmed.


author: MAZZONI, J.,

text:
    Eisbacher v. Davidson

      C.P. of Lakhawama County,
    No. 2010 CIV 5348.

      Michael J. Pisanchyn, for plaintiff

      Daniel E. Cummins, for defendant Davidson; Cynthia E. Banks, for defendant Geico Indemnity Co.
    March 15, 2013
   MAZZONI, J.,

I. INTRODUCTION

What is before this court is plaintiff Jessica Eisbacher’s (“Eisbacher”) motion for post-trial relief. For reasons articulated herein, said motion is hereby denied.

Defendant Richard J. Davidson (“Davidson”) had filed a “conditional motion for post-trial relief’ and accompanying brief, to which defendant Geico Indemnity Co. (“Geico”) filed joinder submissions. The conditional motions request that the issues referenced therein are to be raised “only in the event that plaintiff is granted a new trial.” In that plaintiff’s motion for post-trial relief is hereby denied, the issue(s) raised in defendants Davidson and Geico’s conditional post-trial motion is now rendered moot.

II. PROCEDURAL HISTORY

On August 2, 2010, plaintiff Jessica Eisbacher, through Attorney Michael J. Pisanchyn, Jr., filed a civil complaint against defendants Richard J. Davidson and Geico Indemnity Co. The complaint relates to a two vehicle collision, which occurred on October 31, 2008 at the intersection of Pittston Avenue and Hickory Street in Scranton, County of Lackawanna. At the time of this collision, this intersection was controlled by a traffic light.

The complaint contains a “negligence” count (count one) against defendant Davidson and a “breach of contract” claim (count two) against Geico for underinsurance motorist benefits. Defendant Geico was plaintiff Eisbacher’s underinsurance motorist carrier.

Prior to trial, defendant Davidson filed a motion to bifurcate trial, requesting the bifurcation of the negligence claim asserted against defendant Davidson from the breach of contract claim asserted against the UIM carrier Geico. By order dated May 22, 2012, this court adopted the stipulation of the parties which provided, in part, that (a) Geico would not participate in the trial and (b) Geico agrees to pay any verdict in excess of defendant Davidson’s automobile insurance policy limits, up to Geico’s underinsurance motorist limits.

This case was originally scheduled for trial on May 29, 2012. At the pre-trial conference on April 25,2012, it was discovered that plaintiff’s counsel Pisanchyn intended to call additional witnesses that were not specifically listed on the parties’ joint pre-trial submission. To avoid any prejudice to defendant and to avoid imposition of a preclusion sanction against plaintiff, this court, with some degree of reluctance, continued the trial to October 1, 2012. (See transcript of proceedings of May 22, 2012 and court order of May 22, 2012).

The case proceeded to trial on October 1, 2012. At all times relevant thereto, plaintiff claimed that she had the green light as she proceeded into the subject intersection. (N.T. 10-3-12 at 17). Conversely, defendant Davidson, called as on cross, claimed that he did not run the red light and, the last time he looked, the light was green. On further cross examination, defendant Davidson noted that the light could have possibly turned red when he was under it. (N.T. 10-2-12 at 251, 254-55).

The case concluded on October 5, 2012. The jury concluded that both plaintiff and defendant were negligent. The jury, however, found plaintiff Eisbacher to be 60% negligent, thereby precluding any recovery.

On October 15, 2012, plaintiff Eisbacher through counsel filed a timely post-trial motion pursuant to Pa.R.C.P. 227.1. In this motion and in the accompanying brief, plaintiff Eisbacher raised the following challenges:

A. Plaintiff was improperly precluded from introducing critical evidence for impeachment purposes under Pa.R.E. 804(b)(3);
B. Plaintiff was prejudice by the conduct of the trial court;
C. The jury was improperly instructed on contributory negligence.

After a thorough review of the record, plaintiff’s counsel Pisanchyn’s challenges are totally unsupported and constitute a desperate attempt to seek a reversal at all costs. Plaintiff’s motion and brief in support thereof are replete with factual misrepresentations, as will be noted herein. These misrepresentations appear to be intentional in nature with a corresponding purpose to distort the facts and to mislead the reader.

10. In sum, there was no evidence presented that the plaintiff was not exercising ordinary care to keep a proper lookout.
In accordance with the law on intersectional collisions, the issue of proper care when entering the subject intersection was a factual issue to be resolved by the jury. Because of the fact that a “weight of the evidence” claim was not specifically identified in plaintiff’s motion and not specifically addressed in plaintiff’s brief, this issue is hereby considered waived.

Plaintiff’s counsel Pisanchyn’s attack on the conduct and integrity of the court simply reflects an advocate who is argumentative and reluctant to accept the court’s ruling. “A trial court’s rulings on evidentiary questions are controlled by the discretion of the trial court and [an appellate] [c]ourt will reverse only for clear abuse of that discretion.” Commonwealth v. Foy, 612 A.2d 1349, 1351 (Pa. 1992), citing Commonwealth v. Dollman, 541 A.2d 319(Pa. 1988); Commonwealth v. Cargo, 444 A.2d 639 (Pa. 1982). “Admission of rebuttal evidence is a matter within the sound discretion of the trial court.” Commonwealth v. Jones, 610 A.2d 931, 943 (Pa. 1992), citing Commonwealth v. Miller, 417 A.2d 128, 136 (Pa. 1980). “An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence or the record.” Commonwealth v. Kubiac, 550 A.2d 219, 223 (Pa. 1988), app. denied, 563 A.2d 496 (Pa. 1989). An abuse of discretion may result where the trial court improperly weighed the probative value of evidence admitted against its potential for prejudicing the defendant. See Commonwealth v. Wharton, 607 A.2d 710, 719 (Pa. 1992).

III. DISCUSSION

A. WHETHER PLAINTIFF WAS IMPROPERLY PRECLUDED FROM INTRODUCING CRITICAL EVIDENCE FOR IMPEACHMENT PURPOSES UNDER Pa.R.E. 804(d)(3).

Plaintiff alleges that this court precluded plaintiff’s counsel from using a recorded statement made by defendant Davidson to his insurance adjuster. (See plaintiff’s motion ¶5). The court agrees with plaintiff counsel’s recitation of legal authority on the subject, but disagrees with plaintiff’s counsel Pisanchyn’s recitation of the facts. In his motion and brief, plaintiff’s counsel Michael J. Pisanchyn deliberately failed to recite how this issue was raised and how it was resolved without resulting prejudice to the plaintiff.

On the eve of trial, plaintiff’s counsel Pisanchyn forwarded a subpoena to Ms. Hope Rose, a State Farm adjuster who resided some distance from Scranton, Pennsylvania (Concordville, PA). Ms. Rose was another witness who was not disclosed on the Joint Pre-Trial submission. Sometime after the subject accident, more specifically on November 28, 2008, Ms. Rose had a telephonic discussion with defendant Davidson, her insured. As a result of this discussion, Ms. Rose recorded, in the form a log entry, what defendant Davidson told her.

On September 28, 2012, this court received from attorney Jordan D. Koko, attorney for Ms. Rose, a motion to quash plaintiff’s subpoena to attend and testify. In addition to stating the entire historical background regarding Ms. Rose’s anticipated testimony, this motion stated that on Wednesday, September 26,2012, plaintiff’s counsel faxed a subpoena to Ms. Rose, instructing her to appear for trial on October 1, 2012. This subpoena allegedly failed to comply with the requirement of Pa.R.C.P. 234.2, relating to proper service and payment of witness attendance fees. As noted in the motion, counsel for Ms. Rose informed the court that he was not available for a court appearance on October 2 and October 3, 2012 and that Ms. Rose had a pre-planned vacation scheduled for October 4th through October 9, 2012. Upon receipt of this motion, this court scheduled an argument on the motion to quash for Monday October 1, 2012, prior to trial commencing. Prior to the argument, the parties entered into a stipulation, which reads as follows:

STIPULATION OF THE PARTIES

The parties, by and through their respective representative counsel, hereby agree as follows:

1. The Parties agree that the adjuster notes are authenticated and will be allowed to be used at the time of trial.
2. The Parties agree that the jury may be advised that these notes were made contemporaneously with any statements taken and taken on behalf of and for the benefit of the defendant.
3. The Parties agree as has been advised by adjuster’s attorney that if the adjuster were to be asked “if she recalls anything further other than what is stated in the notes (sic) she would state “I do not recall” to all of those questions.
4. The Parties specifically agree to a reading and/or referencing of note 106 as to the statements contained in exhibit 1 of this stipulation. Any use of the remaining notes would be subject to admissibility pursuant to Pa.R.E.
5. The notes other than note 106 are stipulated authentic and their admissibility shall be governed by the applicable Pennsylvania Rules of Evidence.
6. Obviously, any wording in reference to insurance would not come before the jury should the court rule that it cannot.
7. It is further agreed by the parties that the Notice to Attend directed to Hope Rose is hereby withdrawn, and that she need not attend the trial of this matter.

(See stipulation filed of record on October 2, 2012) (emphasis added).

In conformity with the stipulation and without obj ection, the court instructed the jury as follows:

Okay, ladies and gentlemen, in my conversations with the attorneys, the attorneys indicate they have a stipulation. A stipulation is nothing more than an agreement. And the stipulation involves an individual by the name of Hope Rose. And in lieu of having Hope Rose come here and testify, the parties have agreed to go ahead and read into the record as evidence a statement that Hope Rose took of the defendant in this case.
Now, Hope Rose was an individual who was acting on behalf of the defendant and then had an occasion to take a statement from the defendant. This was a telephonic conversation, a telephonic statement that was taken on November 28 of 2008.
And the statement reads as follows, this is the defendant’s statement: Mr. Davidson, the defendant in this case, believed that he had a green light. He admits that he had sun glaring at him. He confirmed that he was rotated and spun around and collided with a Mr. Russel.

(See N.T. 10-2-12 at 245-46) (emphasis added).

As articulated above, plaintiff counsel Pisanchyn’s posture of this issue in his brief is nothing short of a deliberate attempt to misrepresent the development of this issue and how it was ultimately resolved. Plaintiff’s counsel Michael J. Pisanchyn claims that this court precluded him from using the statement for impeachment purposes when the record shows that he entered into a stipulation, the relevant portions of which were read to the jury without objection. Plaintiff’s counsel used the stipulation in cross-examining the defendant and further referenced the stipulation in his closing. (N.T. 10-2-12 at 259-60 and N.T. 10-4-12 at 64).

Counsel’s framing of this issue and request for relief thereon are based on a complete fabrication of the facts without any concern for the details of record.

B. WHETHER PLAINTIFF WAS PREJUDICE BY THE CONDUCT OF THE TRIAL court.

Plaintiff’s attorney Michael J. Pisanchyn alleges that the court’s conduct and demeanor created an unfavorable impression of plaintiff, her witnesses, and/or plaintiff’s counsel. Attorney Pisanchyn identifies the following instances:

1. Lucille Eisbacher’s Testimony.

Plaintiff’s attorney directs his first challenge concerning the court’s conduct to Lucille Eisbacher’s testimony. Lucille Eisbacher is the mother of plaintiff. Plaintiff’s counsel Pisanchyn stated that this was one instance in which he was admonished by the court within the hearing of the jury. Once again, plaintiff’s counsel fails to recite the full context of the development of this matter and has failed to lodge an objection on the record.

Lucille Eisbacher was called to the stand to tell the jury how she found out about the subject car collision. She testified that she received a call and was then asked what was related to her. Defense counsel objected. The objection was sustained and the court, at sidebar, asked plaintiff’s counsel to provide the court with a proffer of her anticipated testimony. The court permitted plaintiff’s counsel to relate to the jury that Lucille Eisbacher received a call informing her that her daughter was in an accident and, as a result thereof, Lucille Eisbacher proceeded to the scene. The court specifically told plaintiff’s counsel that any information about someone running the red light was impermissible as hearsay. Despite this court’s directive, the following testimony was elicited and the following sidebar was recorded:

Q. Ma’am, did you receive any information as a result of the telephone call that your husband received?
A. Yes.
Q. And what was related to you? What was the information you received?
A. The information we received was that someone had run a light and there was a collision.
MR. CUMMINS: Your Honor, object.
THE court: Sidebar. Sidebar.
I’m going to direct the jury to exclude the nature of that statement, those statements that was (sic) just proffered by the witness.
Sidebar.
(The following discussion was held at sidebar:)
THE COURT: Now we previously had a sidebar here in relationship to Dan Cummins’ objection. After asking counsel for a proffer, I permitted counsel simply to go ahead and extract from this witness that she received the call and that as a result of that call she was proceeding to an accident scene. There was an accident involving her daughter, and she was proceeding to the accident scene. That was the extent of this court’s directive. And this witness in response to this question had went ahead and went beyond the four comers of this court’s directive.
MR. PISANCHYN: Just so that I can be heard. The issue is, is that this is clearly not hearsay. The fact is that it’s not for the truth of the matter arrested. The fact is that she received this information and then she goes to the scene.
MR. CUMMINS: Your Honor -
MR. PISANCHYN: Without that information --
THE COURT: I know, keep it down.
MR. PISANCHYN: What’s the point unless she knows she hears it.
THE COURT: The point is that she related hearsay evidence on the very nature, the very issue that we’re here for today. That’s it. Go back and ask the rest of the questions.
(In open court as follows.)
THE COURT: The court had sustained the objection of defense counsel. And I want to make one explanation só you understand where we’re going with the objection and with the witness’ testimony. What she had indicated as to the subject matter of what she just testified to is hearsay. It’s coming from another source. It’s not coming from the parties. And hearsay generally is not permitted and that’s why I sustained the objection. So that’s the whole subject of the discussion that I had with counsel.
Okay. Go ahead.

(N.T. 10-2-12 at 7-10) (emphasis added).

At the time of the aforementioned sidebar, the jury was a significant distance away from the attorneys and the court. Secondly, and as the above transcript reveals, the court was the one who directed plaintiff’s counsel Pisanchyn to “keep it down.” After defendant’s objection was sustained in part, plaintiff’s counsel continued to elicit testimony from the witness about someone running a red light.

Plaintiff’s counsel Pisanchyn, throughout his brief, makes general references to the court’s alleged “anger” and its objectionable “tone and demeanor.” The record on this issue simply speaks for itself. The record will reveal that an objection was raised and that the court sustained it in part, thereby providing plaintiff’s counsel with the permissible range of Lucille Eisbacher’s testimony. The record also reveals that the court’s directive was violated and the court proceeded to instruct the jury as to what had occurred concerning the nature of hearsay testimony. Lastly, and more importantly, plaintiff’s counsel failed to record an objection over the court’s ruling or the manner in which it was communicated.

In addition to the above, plaintiff’s attorney cites another instance involving Lucille Eisbacher’s testimony where he claims that the court’s conduct was improper. Prior to plaintiff’s redirect of Lucille Eisbacher, plaintiff’s counsel asked for a sidebar to relate to the court that he intended to ask Lucille Eisbacher why her daughter is not treating and why she is going to the gym. Defense counsel objected to any anticipated testimony from the witness that her daughter does not have any insurance.

At the outset of the sidebar, defense counsel cautioned plaintiff’s counsel Pisanchyn to “whisper” for fear that the jury would hear him. (N.T. 10-2-12 at 44). What had ensued was a rather lengthy sidebar, during which the jury was given a break. (N.T. 10-2-12 at 44-60). As noted in the record, this issue was raised the day before and the court asked the parties to provide the court with authority for their respective positions. (N.T. 10-2-12 at 44). The defense provided the court with authority upon which he relied. (N.T. 10-2-12 at 52-3). When asked about authority from the plaintiff, the following exchange took place:

THE COURT: Now, do you guys have a case to support your position that a witness can get up and say: I can’t afford it because I don’t have any insurance, auto or otherwise?
MR. YAZINSKI: Well, Judge, I don’t believe there’s a case that says you can’t say health insurance.
THE COURT: I’m just saying do you have a case to present to me that says that a witness can come up and say: I can’t afford it because I don’t have any insurance?
MR. YAZINSKI: Judge, I don’t have a case.

(N.T. 10-2-12 at 55-56).

The court ultimately sustained defense counsel’s objection as to any reference to the lack of insurance but permitted plaintiff’s counsel to proceed with the other proffered questions. (N.T. 10-2-12 at 56). Once again, plaintiff’s counsel in his brief recites a portion of the sidebar which of course is taken out of context. The entire sidebar is nothing more than a discussion between counsel and the court over an evidentiary issue. There are no instances during this sidebar where the court acted inappropriately, as argued by plaintiff’s counsel. This transcript speaks for itself. (N.T. 10-2-12 at 44-60).

2. Cross Examination of Defense Vocational Expert.

This challenge involves the court directing plaintiff’s counsel to let the witness finish his answer before he proceeded with the next question. It was the same directive that the court had given previously to defense counsel. After the court had advised counsel of same, counsel then proceeded to be argumentative. The transcript of proceedings reveals the following exchange between the court and plaintiff’s counsel Pisanchyn:

Q. And you would agree that you’re not even giving Miss Eisbacher the eight weeks of time that she was laid up in bed and couldn’t even get out of her room, and her mother had to shower her, but that wasn’t a wage loss, right, that wasn’t an impairment? You said no; right?
A. No, I said she has no loss of earning capacity - -
Q. Did she have a wage loss?
THE COURT: Mike, let him finish, all right?
MR. PISANCHYN: But my question was simply, did she have a wage loss?
THE COURT: I know that but he’s getting it out and you’re banging another question in. Okay? Just extend him the same respect, and I admonish defense counsel, let’s hold it, ask a question and let him answer.
MR. PISANCHYN: And I’m just - when I ask a yes or no, I would just hope that he can answer it with a yes orno.
THE COURT: We didn’t get down that road. Let’s just let him answer the question. That wasn’t a yes or no question. It was a question he was in the process of answering the question. I don’t want to jump in your case or Dan’s case, but the witness is trying to respond and you’re into your next question. Okay?
MR. PISANCHYN: Yes, Your Honor.
THE COURT: Okay. Go ahead, I don’t know what question you asked.
THE WITNESS: She may have had some - - I’m sorry.
THE COURT: Go ahead.
A. I think the answer is she may have some lost wages after the accident, but she has no loss of earning capacity, and I believe her earning capacity was clearly established before this accident in sedentary work. So the idea that she went back to Red Lobster was really medically contraindicated in light of what Dr. Olsen had said.

(N.T. 10-2-12 at 171-72).

As noted above, the court was simply directing counsel to provide the witness with an opportunity to fully answer a question, which he ultimately did. Furthermore and in contradiction to plaintiff’s baseless claim that the court was acting as an advocate, this court, as it always does, instructed the jury on the role of the court in the proceeding before them. This court instructed the jurors as follows:

Now, ladies and gentlemen, during the course of this case, I have not attempted to indicate any opinion on my part concerning the credibility of a particular witness or the weight of a certain type of evidence that was introduced, and I would not want you to think that I did. That is because it is for you and you alone to determine the credibility of each witness and the weight to be afforded to the evidence that has been introduced during the course of this trial. During the course of this trial, I ask very little questions but when I asked those questions it was only for purposes of my clarification not necessarily to go ahead and emphasize any preference that I may have in this case because I have no preference. I sit up here as I indicated to you the umpire behind the plate, I call balls and strikes. I have no dog in the fight. My job is to go ahead and provide the parties with a fair ability and a fair opportunity to try their case.

(N.T. 10-5-12 at 82).

Once again, plaintiff’s counsel Pisanchyn did not record an objection relating to this challenge.

3. The Philadelphia Query.

This issue was cited in plaintiff’s brief but not specifically raised in plaintiff’s motion and plaintiff’s counsel again failed to lodge an objection. At the conclusion of plaintiff’s counsel’s cross examination of the defense vocational expert, Dr. Jason Walker, plaintiff’s counsel Pisanchyn asked Dr. Walker a totally irrelevant question, which had impermissible overtones attached to it. The record reflects the following:

Q. Just for instance, you make $13,000 here today how many - -
A. No, I don’t make $13,000; the $13,000 goes to CEC Associates.
Q. How many $13,000 do you know would equal $750,000 dollars? You have to divide it?
A. I don’t know. I would have to divide it.
Q. And one last thing, do you know how to get back home to Philadelphia?
A. Yes.
Q. Okay, I just wanted to —
MR. PISANCHYN: Thank You.
THE COURT: What was the nature of that question?
MR. PISANCHYN: Well, I just thought he might need directions because he’s not from around here, Your Honor.
THE COURT: And you were going to help him out to get back to Philadelphia.
MR. PISANCHYN: Yes.
THE COURT: Okay.
Any redirect?

(N.T. 10-2-12 at 195) (emphasis added).

The court is cloaked with the authority to exercise reasonable control over the mode and order of interrogation as well as the presentation of evidence. Pa.R.E. 611(a). The aforementioned question as framed and propounded by plaintiff’s counsel Pisanchyn could only have served one of two purposes, either of which is not permissible. It was. either an indirect attempt to relate to the jury that the witness was not a local professional or an indirect attempt to demean the intelligence of the witness. In either case and as framed, the question was highly improper. Plaintiff’s counsel would prefer this court to sit there like a “potted plant” and permit, this rather embarrassing and senseless inquiry.

4. Displaying a Video Clip.

This challenge relates to plaintiff’s attorney’s attempt to show video clips of plaintiff’s physician to his vocational expert, Fran Terry, in rebuttal to the defense’s vocational testimony from Dr. Walker. (N.T. 10-3-12 at 168-76).

The defense lodged an objection to the video clips and the court requested an explanation because Dr. Olsen’s opinions were not referenced in Terry’s report. The matter quickly proceeded to a sidebar, where plaintiff’s counsel Pisanchyn objected to the court’s inquiry in front of the jury. (N.T. 10-3-12 at 170). Plaintiff’s counsel Pisanchyn claimed that he and defense counsel had an agreement to permit this testimony. This representation was initially denied by defense counsel. (N.T. 10-3-12 at 173). After a lengthy sidebar, Defense counsel retracted his objection. (N.T. 10-3-12 at 174). Based on defense counsel’s retraction and acknowledgment of an agreement, this court overruled defense counsel’s objection and permitted the showing of Dr. Olsen’s video clips. (N.T. 10-3-12 at 176).

Plaintiffs counsel took issue with the court’s inquiry after objection and in front of the jury. The record reflects that the exchange was nothing less than a professional exchange between counsel and the court over the admissibility of evidence. The court took issue at sidebar with plaintiff’s counsel Pisanchyn’s suggestion that the court was “contaminating” the jury over the inquiry. (N.T. 10-3-12 at 170).

The sidebar took some time because the court needed to sort out whether there existed an agreement and, if so, the nature thereof. The court was not specifically privy to the agreement which, at first was denounced. The transcript again speaks for itself as to whether this court’s inquiry “contaminated” this jury to the detriment of plaintiff’s case. It is apparent from plaintiff’s brief that any attempt by this court to address a defense objection in front of the jury is looked upon by plaintiff’s counsel as an attempt “to prejudice the jury in favor of the defense.” This bare accusation is not borne out in the record.

5. Independent witness.

Earlier in this proceeding, this court had sustained defense counsel’s objection to plaintiff counsel’s self-serving characterization of a witness as being an “independent witness.” In plaintiff counsel’s Pisanchyn’s cross examination of defendant Davidson, plaintiff’s counsel asked the following question which resulted in the following objection and ruling:

Q. You heard from a witness that we’re characterizing as independent because he said he doesn’t have a dog in the fight —
MR. CUMMINS: Objection, You Honor. Argumentative.
THE COURT: Michael, I indicated to you before I don’t want you to put characterizations on these people. It’s your assessment that it’s an independent witness. I had indicated that earlier so it’s a witness. Got it?
MR. PISANCHYN: I’ll move forward, Judge.
THE COURT: Good, that’s good.

(N.T. 10-2-12 at 262) (emphasis added).

Once again and after having the benefit of a prior ruling on this issue, plaintiff’s counsel Pisanchyn proceeded to place a self-serving characterization of a previous witness. This court sustained the objection and did remind counsel of the court’s prior ruling, all in front of the jury. This issue would not have been an issue but for plaintiff’s counsel Pisanchyn misstep. Plaintiff’s counsel seems to prefer that the court simply state its ruling and conduct any amplification thereof at sidebar. This would only lead to a fragmented and convoluted proceeding.

As in most of the other challenges in plaintiff’s post-trial submission, plaintiff’s counsel did not lodge an objection on the record.

6. The court and the Jury Foreman.

One of the most egregious, disparaging, and baseless attacks on the court’s integrity is plaintiff counsel Pisanchyn’s claims that the court had an alleged “personal relationship with the jury foreman” and that this alleged relationship prejudiced the jury against plaintiff. (See plaintiff’s motion t7(a) and brief in support thereof section B, last paragraph therein). This attack is simply a one line, one sentence challenge without any cite to the record.

The jury foreman was an individual by the name of Richard M. Mahon, whose deceased father was a tipstaff for a now-retired jurist in Lackawanna County. At the time of voir dire, the court had disclosed to the parties who the juror’s father was and that the court had known his father. Plaintiff counsel Pisanchyn’s representation that the court knew the juror is categorically untrue and the representation that the court had a personal relationship with him is also categorically untrue. After disclosing who the juror was, plaintiff nonetheless selected him as a juror.

In a desperate attempt to attain a reversal in this case, plaintiff’s counsel Pisanchyn has elected to resort to misrepresentations that have no foundation in the record or otherwise. The record is devoid of any such challenge and further devoid of any objection. The unavoidable inference that one may glean from this shallow and baseless representation is that the court had somehow manipulated the results of this case through a juror. This is an allegation that should not be overlooked and should not be considered lightly.

At argument on the post-trial motions, the court had inquired of plaintiff’s counsel as to. the existence of any evidence concerning the alleged personal relationship between the foreman and the court. Plaintiff’s counsel Pisanchyn had indicated that he had none. Plaintiff’s counsel had indicated to the court at argument that his conclusion that there existed a personal relationship was based upon the court’s knowledge and familiarity with the juror’s father and nothing more.

Lastly, the simple fact that the court knows a juror does not serve as a basis for reversible error. The role of the court is to provide the litigants with a fair and impartial opportunity to present their case within the parameters permitted by law and the Rules of Evidence. As it instructed the jury, this court had no interest in the outcome of the case, and the jury was well aware of same.

7. Court Acting as an Advocate.

As he has done throughout his motion and brief, plaintiff’s counsel pisanchyn makes a general accusation that the trial court “simply substituted itself through all hearings and at trial as counsel for defendant, advocating a defense position instead of simply ruling on the issues.” (See section B of plaintiff’s brief). Except for generally raising this baseless challenge, plaintiff’s counsel fails to cite to any portion of the record to support its position. This challenge appears as an issue under section B of the brief that is left totally untreated therein. In responding to this issue and without comprehensively reviewing every witness’s testimony and challenges thereto, this court will rely on the record and, more importantly, those portions of the record that plaintiff has cited for other issues.

C. WHETHER THE JURY WAS IMPROPERLY INSTRUCTED ON CONTRIBUTORY NEGLIGENCE.

In determining whether or not the court erred in its instructions, the scope of review is to determine whether the trial court committed clear abuse of discretion or error of law controlling the outcome of the case. Williams v. Philadelphia Transportation Co., 203 A.2d 665 (Pa. 1964); Stewart v. Motts, 654 A.2d 535 (Pa. 1995). Error in a charge is sufficient ground for a new trial, if the charge as a whole is inadequate or not clear or has a tendency to mislead or confuse rather than clarify a material issue. Glider v. Com. Dept. of Hwys., 255 A.2d 542, 547 (Pa. 1969). A charge will be found adequate unless “the issues are not made clear to the juiy or the juiy was palpably misled by what the trial judge said or unless there is an omission in the charge which amounts to fundamental error.” Voitasefski v. Pittsburgh Rys. Co., 69 A.2d 370, 373 (Pa. 1949); A reviewing court will not grant a new trial on the ground of inadequacy of the charge unless there is a prejudicial omission of something basic or fundamental. Sweeny v. Bonafiglia, 169 A.2d 292, 293 (Pa. 1961); Giorgianni v. DiSanzo, 140 A.2d 802, 805 (Pa. 1958). In reviewing a trial court’s charge to the jury, we must not take the challenged words or passage out of context of the whole of the charge, but must look to the charge in its entirety. McCay v. Philadelphia Electric Company, 291 A.2d 759, 763 (Pa. 1972).

In this challenge, plaintiff’s counsel argues that there was no factual support for the court to instruct the jury on plaintiff’s contributory negligence and on a motorist’s duty to keep a proper lookout while entering an intersection. Plaintiff claims that there was no evidence that plaintiff was negligent, no evidence of the speed limit in the area, and no evidence that plaintiff was exceeding the limit.

The record is silent as to any objection raised and preserved by plaintiff’s counsel as to the court’s charge. Secondly, and prior to the court’s concluding charge, the court inquired of counsel if there were any objections and attorney Pisanchyn stated that “the charge is acceptable, none, your Honor.” (N.T. 10-5-12 at 113). This objection is clearly waived. Pa.R.C.P. 227.1(b).

Notwithstanding plaintiff counsel’s obvious waiver of the issue, there existed a plethora of evidence which warranted the aforementioned instruction. Contrary to plaintiff’s counsel Pisanchyn baseless assertion that there was no evidence of the speed limit in the area, defendant Davidson testified that the speed limit was 25 MPH. (N.T. 10-2-12 at 268). Secondly, plaintiff’s so-called independent witness, Allen Leach, Jr., approximated plaintiff’s speed prior to entering the intersection to be 30-35 MPH. (N.T. 10-2-12 at 75). As indicated previously, both plaintiff and defendant each claim to have had the green light.

Because this was an intersectional collision, one would expect conflicting versions. On cross examination, plaintiff Eisbacher was impeached with her deposition as to whether she maintained a proper lookout. In her deposition, she stated that she did not recall whether she looked either way as she approached the intersection. In fact, in her deposition, she stated that she looked straight ahead and never saw defendant’s vehicle until it was right in front of her. (N.T. 10-3-12 at 84-85). Accordingly, the issue as to whether the parties maintained the proper lookout was squarely before the jury.

Furthermore, the dynamics of the collision suggested that defendant’s vehicle was well into the intersection at the point of impact. Plaintiff testified that her vehicle contacted the passenger’s side of defendant’s vehicle. (N.T. 10-3-12 at 83). Defendant Davidson claimed that he was two-thirds of the way through the intersection when his vehicle was impacted. (N.T. 10-2-12 at 260). Defendant Davidson claims that plaintiff’s vehicle struck the rear quarter panel of his vehicle. (N.T. 10-3-12 at 271).

Once again, the dynamics of the collision, proper lookout, and contributory negligence of both plaintiff and defendant were contested issues of fact and were squarely before the jury for determination. Based on the evidence in this case as to the actions of the parties and the fact that there was a collision that occurred at a controlled intersection, the court instructed the jury on contributory negligence, (N.T. 10-5-12 at 94), and on a motorist’s duties while entering an intersection. (N.T. 10-5-12 at 102-04). Little v. Jarvis, 280 A.2d 617 (Pa. Super. 1971); Spraggins v. Shields, 456 A.2d 1000 (Pa. Super. 1983); Smith v. United News Co., 196 A.2d 302 (Pa. 1964).

IV. CONCLUSION

The court finds itself, for the first time, in an awkward position of defending itself from a totally baseless attack on its integrity in a rather lame attempt to seek a reversal.

For reasons that are specifically articulated herein, plaintiff’s post-trial motion is hereby denied.

ORDER

And now, March 15, 2013, upon consideration of plaintiff Jessica Eisbacher’s motion for post-trial relief and defendants’ Richard J. Davidson and Geico’s conditional motions for post-trial relief, briefs in support of and opposition thereto, as well as arguments of counsel, it is hereby ordered and decreed as follows:

1. Plaintiff Jessica Eisbacher’s motion for post-trial relief is hereby denied;

2. Defendants’ Richard J. Davidson and Geico’s conditional motions for post-trial relief are hereby rendered moot.

      . At the time of argument, plaintiff had not filed a responsive brief to defendants’ conditional post-trial motions. The plaintiff’s attorney was provided with an additional 10 days from the date of argument to file a responsive brief. No responsive brief was filed.

      . In addition to the late and untimely disclosure of fact witnesses identified by plaintiff’s counsel Pisanchyn on April 25,2012, plaintiff’s counsel Pisanchyn, in January 2012 and well after the case was certified for trial, produced a report from a vocational expert. Both of these untimely and late disclosures were the subject of defense counsel’s motions in limine requesting a preclusion sanction.

      . In her post-trial motion, plaintiff fails, in part, to specifically ide - tify grounds for relief and further fails to identify “how the grounds were asserted in pre-trial proceedings or at trial.” Pa.R.C.P. 227.1(b)(2). To the extent that paragraph 10 in plaintiff’s motion may raise a “weight of the evidence” claim, this rather vague assertion was not addressed as a specific issue in counsel’s brief in support thereof. Paragraph 10 of the motion states:

      . Attorney Douglass A. Yazinski is a member of the Pisanchyn Law Firm and was co-counsel for plaintiff.

      . The jury was previously informed that Dr. Walker had an office in Valley Forge, PA. (N.T. 10-2-12 at 147).

      . Defense counsel’s recitation of the events, as referenced in his brief, are accurate. (See defendant Davidson’s brief in opposition).

      . Specific references to plaintiff’s brief are precluded because the pages in plaintiff’s brief are not numbered.


author: SPRECHER, J.,

text:
    City of Reading v. lezzi
    C.P. of Berks County,
    No. 10-24010.

      Jason J. Leininger, for plaintiff

      John A. Fielding, III, for defendant
    February 6, 2013
   SPRECHER, J.,

Defendant appeals this court’s decision and verdict that entered judgment in favor of plaintiff and against defendant in the amount of $1,878.34 for recycling fees and trash fees due plaintiff for defendant’s property following a bench trial.

FACTS

On December 21, 2010, plaintiff, the City of Reading, filed a tax claim of $1,878.34 against defendant, Mark A. lezzi, for recycling and trash fees for the years 1999 through 2008. Defendant was the property owner of the subject property.

On July 11, 2011, defendant filed an affidavit of defense. This affidavit stated, inter alia, that he had utilized a private hauler to pick up trash from 1999 to 2005. In March 2007, defendant formed his own roll-off service and received approval from the Pennsylvania Department of Environmental Protection to collect and provide his own trash hauling service. He thereafter informed plaintiff’s Solid Waste Coordinator that he would no longer require plaintiff’s services since participation at that time was voluntary. Defendant claimed therefore that he owed no fees.

On June 21, 2011, plaintiff filed a writ of scire facias against defendant’s property. Subsequently the case was listed for trial, and this court held a bench trial. The following are the pertinent facts produced at the trial.

In response to proof provided by defendant that he had utilized a private trash hauler for the property, plaintiff agreed to remove all charges from defendant’s account relating to delinquent trash fees, including those for interest and attorney fees. Plaintiff sought to collect solely the delinquent recycling fees owed on the property. Per the plaintiff’s ordinance, recycling fees are mandatory. Plaintiff sought $1,405.17 in total fees.

Defendant’s defense to these fees is that he does not owe them because he is a self-employed hauler and removes his own recycling. This court denied defendant’s defense and entered judgment in favor of plaintiff and against defendant. Defendant filed the instant appeal.

ISSUES

Defendant raises the following issue in his concise statement of errors complained of on appeal:

1. This court committed an error of law in determining that plaintiff was permitted to assess a recycling fee against homeowners or private solid waste haulers under the Solid Waste Management Act and the Municipal Waste Planning, Recycling, and Waste ReductionAct, 35 P.S. §§6018.101 through 6018.1003 (SWMA) when SWMA has preempted the field of waste regulation and management and provides for no such fee.

DISCUSSION

This court first submits that defendant did not preserve any issues because he failed to file any post trial motions. No issues were preserved for appeal, where litigant failed to file post trial motion from adverse judgment in standard bench trial. Siegfried v. Borough of Wilson, 695 A.2d 892 (Pa. Cmwlth. 1997). Therefore, defendant’s appeal should be dismissed.

Assuming arguendo, that defendant has preserved the issue of plaintiff’s right to assess a recycling fee for an appeal, this court further submits that defendant’s complaint is without merit. Defendant relies on the case of Pennsylvania Independent Waste Haulers Association v. County of Northumberland, 885 A.2d 1106 (2005) for his position that S WMA has preempted the field of waste management and regulation and does7 not provide for such a fee by a municipality. This case held that the Municipal Waste Planning, Recycling, and Waste Reduction Act preempted municipal authorities from imposing their own administrative fees on waste haulers to help fund their recycling programs because the Act provided a comprehensive recycling plan that the legislature did not intend to be supplemented by municipal bodies. This Act therefore prevents plaintiff from imposing a fee on waste haulers. Defendant, however, is also the property owner; plaintiff is authorized to establish, impose, and collect reasonable fees and charges for the collection, removal and disposal of ashes, garbage, solid waste, other refuse materials, and recyclable materials upon private property; residents are required to pay the charges even if they do not generate any waste. Township of West Manchester v. Mayo, 746 A.2d 666 (Pa. Cmnwith. 2000).

For these reasons, this court found that plaintiff could collect a recycling fee from defendant and entered the aforesaid verdict. This court did not have the benefit of a transcript when it rendered the decision; thus, it entered judgment for the original claim amount instead of the reduced amount. Defendant did not file any post trial motions to allow this court to correct the amount of the verdict, so he has waived any complaint as to the amount.

In accordance with the foregoing opinion, this court submits that its verdict should be affirmed and the appeal denied.