author: WETTICK, J.,

text:
    Henry v. PNC Bank National Assoc.

      C.P. of Allegheny County,
    No. GD-10-022974.

      James M. Pietz, for plaintiff.

      Darryl J. May, MariahM. Murphy and Marcel S. Pratt, for defendant.
    January 31, 2012
   WETTICK, J.,

The preliminary objections of PNC Bank seeking dismissal of each of the six counts within plaintiff’s amended class action complaint are the subject of this opinion and order of court.

Plaintiff, Candace H. Henry, is a former customer of PNC who was provided with a checking account and debit card. She alleges that she was the victim of a practice in which PNC maximized overdraft charges (1) by waiting until the end of a business day to determine whether the account balance in a customer’s checking account was sufficient to cover all debit transactions from the end of the prior business day to the end of the current business day and (2) by using a high-to-low posting where there were multiple transactions within this period thereby maximizing the overdraft fees whenever the total charges against the account at the end of the business day exceeded the account balance.

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

If the account was posted in chronological order, the customer would be charged for one overdraft. If the account was posted from lowest to highest at the end of the business day, the customer would be charged for one overdraft. However, if the account was posted from highest to lowest at the end of the business day, the customer would be charged for four overdrafts. Under this third scenario, PNC would be assessing overdraft charges on four transactions for which the actual funds in the customer’s account were sufficient at the time of each transaction to cover the debits submitted for payment.

The situation is exacerbated when numerous debit card transactions occur on Saturday through Monday. PNC treats this three-day period as one business day. Consequently, if the total transaction amount for this three-day period exceeds the balance of the account as of 11:59 P.M. on Monday, the number of defaults will be based on the posting of all debits submitted over the three-day period in highest to lowest order.

In plaintiff’s first amended class action complaint, plaintiff describes three overdraft incidents:

Incident 1 — At the close of business on May 19,2010, plaintiff had an account balance of $160.34. On May 20, 2010, PNC posted three charges to plaintiff’s account: a check for $160.00 and two debit card transactions, one for $8.05 and the other for $5.93. PNC approved the two debit card transactions before it received the check. However, at the end of the business day, PNC posted the check for $160 before posting the $8.05 and $5.93 debits. The result was that plaintiff’s account was charged overdraft fees totaling $72.00 for $13.98 in overdrafts. If PNC had deducted the debit charges when it received notice of them and in chronological order, plaintiff would have been charged only one overdraft fee when the $160.00 check was posted (¶¶ 39-41, plaintiff’s amended complaint).

Incident 2-At the end of the day on May 20, 2010, plaintiff had a balance of-$13.64 in her checking account. However, in the early hours of May 21, 2010, PNC received a direct deposit into plaintiff’s account in the amount of $641.55. It received that money before the opening of the business day on May 21, 2010. Had her account been credited with those funds at the time PNC received them, the account balance would have been $627.91 before any additional transactions could be posted to her account. However, PNC deducted a debit card transaction before crediting plaintiff’s account for the direct deposit, resulting in another overdraft fee (¶42, plaintiff’s amended complaint).

Incident 3-On June 11, 2010, plaintiff began the day with a balance of $84.23. During the day, she deposited $320.00 in her account resulting in over $400.00 in available funds in the account on that date. However, plaintiff incurred four overdraft fees totaling $144.00 on $336.68 in total charges. But for PNC’s resequencing and delayed deposits policies, plaintiff would have incurred fewer or no overdraft fees on that day (¶43, plaintiff’s amended complaint).

Each of the counts in plaintiff’s six-count complaint is based, wholly or partially, on PNC’s practice of posting all debit transactions only at the end of the business day and processing them from the highest to lowest amount, thereby maximizing the number of overdraft fees charged to the customer.

I now consider PNC’s preliminary objections to each of plaintiff’s six causes of action.

I. BREACH OF CONTRACT AND THE DUTY OF GOOD FAITH AND FAIR DEALINGS

I initially begin with plaintiff’s third cause of action based on allegations that PNC has breached its contractual obligations to plaintiff by posting debits only at the end of the business day in high-to-low order.

PNC contends that this cause of action must be dismissed because plaintiff executed writings which authorized the posting of all debit transactions at the end of a business day, using a high-to-low posting sequence. In support of this contention, PNC primarily relies on three writings, herein designated as Writings A, B, and C.

WRITING A

PNC relies on the first page of the twenty-seven-page, single-spaced (and not indexed) Account Agreement for Personal Checking, Savings and Money Market Accounts (“Account Agreement”), Exhibit 1 to plaintiff’s amended complaint, which directs the customer to refer to the following:

You should also refer to certain other documents for terms and conditions relating to your Account, including PNC Bank’s:
(i) Consumer Schedule of Service Charges and Fees;
(ii) Funds Availability Policy;
(iii) Substitute Check Policy Disclosure;
(iv) Consumer Electronic Funds Transfer Disclosure Statement; and,
(v) PNC Bank Online Banking and Bill Pay, Online Banking Transfer Funds and PNC Payment Services, and/or Online Bill Pay Services Agreement for Information concerning the use of these services (if you have selected any of these services);
(vi) Overdraft Protection Agreement; and
(vii) The PNC Financial Services Group, Inc. Consumer Information Privacy Principles.

WRITING B

PNC relies on the following three paragraphs of the Account Agreement at pages 3 and 4 under the heading Withdrawals:

Paragraph 3
Your account may be debited on the day an item is presented by electronic or other means, or at an earlier time based on notification received by us that an item drawn on vour account has been deposited for collection in another financial institution. We are required to permit a withdrawal only if you have sufficient available funds in your Account to cover the whole amount of the withdrawal. A determination of your account balance for purposes of making a decision to dishonor an item for insufficiency of available funds may be made at any time between the receipt of such presentment or notice and the time of payment or return of the item or debit, and no more than one such determination need be made.
Paragraph 4
Effective September 19, 2008, in determining whether you have sufficient funds in your account to cover a withdrawal. PNC Bank will consider: fit the deposits and withdrawals posted that day to vour account, and (2) all pending electronic transactions for which PNC has received notice, even if those transactions have not been presented to PNC for payment. Such transactions include (but are not limited to) purchases, transfers or withdrawals made with your Check Card or Banking Card, merchant payment authorizations, online transfers of funds, telephone transfers, and any other electronic transactions or transfers. We may conclusively rely on notice of electronic transactions in determining whether you have sufficient funds in vour account to cover a withdrawal even if the notice incorrectly describes the transaction. This could result in an overdraft if sufficient funds are not available in vour account to cover all withdrawals. We will not be responsible for damages or wrongful dishonor if any item is not paid because of insufficient funds resulting from this method of determining whether you have sufficient funds to cover a withdrawal. In addition, funds you may have deposited may not be immediately available under our Funds Availability Policy. Please review our Funds Availability Policy for more information.
Paragraph 5
Checks, debits such as ATM withdrawals, debit card transactions, preauthorized automatic debits, telephone-initiated transfers, other electronic transfers, other types of debits or other withdrawal orders that exceed the available balance in vour account (that create an overdraft) are subject to a service charge. If there are sufficient funds to cover some but not all of vour withdrawal orders, we will exercise our discretion (I) in paying some but not all of the items, and (II) to pay the items in any order. In exercising that discretion to pay in any order, we do not necessarily process items in the order in which we receive them. Our general practice is to post withdrawals from vour account in order of the largest-to-smallest dollar item: in other words, beginning with the largest dollar item. then the next-largest dollar item, and so on until we reach the last, smallest-dollar item. The order in which we process these withdrawals may affect the total amount of overdraft fees charged to vour Account. If, in our sole discretion, we choose to allow withdrawals for which there are not sufficient available funds, you agree to repay us immediately the amount of the funds advanced to you. We may also assess your Account a service charge. At no time shall we be required to allow you to overdraw your Account even if we have allowed such activity on one or more prior occasions. We reserve the right to refuse to cash or to impose a charge on anyone who asks us to cash a check that you have written. Even if your check is otherwise properly payable, we will not be liable to you for dishonor of your check, or otherwise, as a result of such refusal.

(The court’s underlining.)

WRITING C

PNC refers to page 1 of the Consumer Funds Availability Policy, which reads under the heading Determining Availability of a Deposit as follows:

Determining Availability of a Deposit
We determine availability by counting the number of business days from the business day of your deposit. Every day except Saturday, Sunday and a federal holiday is a business day.
If you make a deposit through one of our branch tellers, ATM, or by mail before our cut-off time, we will consider that day to be the day of your deposit. However, if you make a deposit after our cut-off time or on a day that is not a business day, we will consider the deposit as being made on the next business day that we are open. Our cut-off time for branches will not be earlier than 2:00 p.m., but may vary by branch. The cut-off time for PNC Bank ATMs will be no earlier than 12:00 noon, but may vary by location. The cut-off time for non-PNC Bank ATMs is 3:00 p.m. Deposits made through our night depository after 6:00 a.m. may be processed on the next business day.
Availability varies depending on the type of deposit and is explained below.
Checks drawn on banks located outside of the United States are not subject to this availability policy. Please inquire regarding availability at the time you make such deposits.

PNC’s supplemental memorandum, Ex. F at 1.

PNC primarily relies on the underlined provisions in the fifth paragraph of Writing B under Withdrawals, which states that debits exceeding the available balance in the account are subject to a service charge. If there are sufficient funds to cover some but not all of the withdrawal orders, it is the general practice of PNC to post withdrawals in order of the largest-to-smallest dollar “item.” The order in which PNC processes these withdrawals may affect the total amount of overdraft fees.

This provision does not authorize PNC to post withdrawals only at the end of the day; it never mentions when withdrawals will be posted. Thus, even assuming that a customer can find his or her way to paragraph 5 under Withdrawals of the Account Agreement, this paragraph does not say when PNC processes withdrawals. If the customer purchases with a debit card two items totaling $37.10 and $11.56 at a time when the customer has $300.00 in his or her checking account, nothing in paragraph 5 suggests that these purchases will not be posted until the end of the business day (which would be the end of Monday for debit card purchases made on Saturday, Sunday, and Monday).

PNC also relies on the underlined provisions in paragraph 4 of Writing B. However, nothing in this writing suggests that transactions will not be posted until the end of a business day.

Even assuming that paragraphs 3 through 5 could be read to provide for deposits and withdrawals to be posted at the end of the day, nothing within paragraphs 3 through 5 suggests that a day means a business day. I find no merit to PNC’s contentions that the customer was informed that a day means a business day because Writing A refers the customer to a document titled Funds Availability Policy, and Writing C, the first page of the Consumer Funds Availability Policy, advises the customer that the term day means business day.

The heading of this provision is Determining Availability of a Deposit, thus, no customer would look to this provision for information about overdraft fees. Furthermore, this provision covers only the availability of deposited funds.

PNC argues that this provision’s reference to a definition of a business day should be used in defining the term day in paragraphs 3 and 4 of Writing B. This makes no sense because there is nothing to suggest that there is a connection between the provisions in a writing titled Funds Availability Policy and the provisions in a writing titled Account Agreement governing overdraft policies. Furthermore, since the use of the term business day refers to every day except Saturday, Sunday, and a federal holiday, the use of the term day elsewhere suggests that PNC is not referring to a business day when it uses the term day.

Plaintiff is not claiming that she did not know that overdraft fees would be charged if her debits exceeded the amount of funds in her checking account. Flowever, she correctly contends that she never knew of, and never agreed to, PNC’s use of any specific method for calculating overdraft fees because, as I have already ruled, (1) the Account Agreement does not adequately explain that PNC would post all debit transactions at the end of a business day, using a high-to-low posting sequence and (2) PNC does not claim that the Account Agreement describes any other method of calculating overdraft fees.

Every contract imposes upon each party a duty of good faith and fair dealing in its performance. John B. Conomos, Inc. v. Sun Co., Inc., 831 A.2d 696,705-06 (Pa. Super. 2003). There is no breach of this implied covenant where a party to a contract has done what the provisions of the contract expressly give it the right to do. However, where, as in this case, the manner of performance is not specifically prescribed, a party exercising its discretion is subject to an implied obligation of good faith and fair dealing.

In the present case, the agreement between PNC and plaintiff does not expressly permit PNC to impose overdraft fees by posting all debits at the end of a business day, using a high-to-low posting. Furthermore, this is not the only method for imposing overdraft fees that would have been available to PNC. Consequently, plaintiff may base a breach of contract action on allegations that PNC’s use of this method of calculating overdraft fees constituted a breach of the implied covenant of fair dealing and good faith.

SUMMARY

Where an agreement between the bank and the customer authorizes the bank to impose overdraft fees and where the agreement does not fully explain to the customer how such fees will be imposed, the bank’s selection of a method for imposing overdraft fees is governed by the obligations imposed under the implied covenant of fair dealing and good faith. As with any other express or implied covenant, the implied covenant of fair dealing and good faith may be enforced through a breach of contract action.

II. VIOLATION OF THE PENNSYLVANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW

In Count I, plaintiff alleges that PNC’s practice of posting all debit transactions at the end of a business day, using a high-to-low posting, constitutes a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“Consumer Protection Law”), 73 P.S. §§201-1 et seq. In its preliminary objections, PNC seeks dismissal on two grounds: it contends (1) the disclosures set forth at pages 4-7 of this opinion undermine any claim under the Consumer Protection Law because this disclosure adequately informed plaintiff of the very practices she claims were concealed and (2) claims based on the Consumer Protection Law are barred by the gist of the action doctrine.

I find no merit to the first ground because my ruling in Section I of this opinion concludes that the language did not adequately explain the manner in which debit transactions and deposits are posted.

As to the second ground, PNC has not cited any case law holding that the gist of the action doctrine applies to claims based on the Consumer Protection Law. Clearly, the doctrine will not defeat Consumer Protection Law claims that arise solely from a contractual relationship between the parties when the success of the Consumer Protection Law claim is dependent upon the success of a breach of contract claim. See, e.g., 73 P.S. §201-2(4)(xiv) (failure to comply with the terms of a written guarantee or warranty). Also, the doctrine will not bar recovery for the breach of a duty grounded in contract law as modified by the Consumer Protection Law. See, e.g., 73 P.S. §201-2(4)(v) (representing that goods or services have characteristics, uses, or benefits they do not have) and 73 P.S. §201-2(4) (xvi) (making repairs or improvements of an inferior nature to that agreed to in writing).

Furthermore, the gist of the action doctrine cannot defeat a claim under the catchall provision of the Consumer Protection Law (73 P.S. §201-2(4)(xxi) (engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or misunderstanding)). The puipose of the Consumer Protection Law is to provide additional protections to consumers beyond those provided by contract law, and a common law doctrine cannot be applied to reduce the remedies authorized by legislation. For example, a contractor installing the roof on a consumer’s home may have made representations upon which the consumer relied that, in a contract action, are barred by the parol evidence rule; or the consumer may have included in the contract a limitation of damages provision which precludes the consumer, the victim of fraudulent conduct, from recovering the full amount of his or her actual losses. The purpose of the catchall provision is to provide remedies in consumer transactions that contract law will not provide. Such remedies include the award of counsel fees and actual losses which may be tripled at the discretion of the court.

III. COMMON LAW UNCONSCIONABILITY

I am sustaining PNC’s preliminary objections seeking dismissal of plaintiff’s cause of action based on common law unconscionability. Under Pennsylvania case law, a finding that a provision within a contract (or the entire contract) is unconscionable will bar the party enforcing the provision (or the entire contract). However, there is no Pennsylvania case law permitting a party to pursue a separate cause of action on the ground that the other party is enforcing an unconscionable provision in the parties’ agreement. See Salley v. Option One Mortgage Corp., 592 Pa. 323, 331, 925 A.2d 115, 119 (2007), where the court described the doctrine of unconscionability as a statutory and a common law defense to the enforcement of an allegedly unfair contract or contractual provision.

In the present case, unconscionability would come into play if PNC had clearly defined the term business day, and had clearly informed the customer that it posted all debit transactions at the end of a business day using a high-to-low posting sequence. Under these circumstances, in her breach of contract count, plaintiff would seek a ruling that the contractual provision permitting a high-to-low posting at the end of a business day should not be enforced against her on the ground of unconscionability.

Plaintiff contends that a court should recognize a cause of action for common law unconscionability in this rare situation in which the bank holds plaintiff’s money based on its unconscionable practices. Otherwise, according to plaintiff, there is no remedy.

This contention is without merit. If PNC had provided adequate notice ofthe use of a high-to-low posting sequence at the end of the business day, a customer may pursue a claim for breach of contract to recover overdraft fees in which the court is requested to rule that the contractual provisions upon which the bank relies to support its taking of plaintiffs funds is unconscionable and unenforceable.

IV. CONVERSION

Plaintiff bases her conversion cause of action on allegations that, by improperly withdrawing overdraft fees from plaintiff’s account, PNC has interfered with plaintiff’s use of funds in her account without plaintiff’s consent and without lawful justification.

PNC contends that this cause of action is barred by the gist of the action doctrine.

In Reardon v. Allegheny College, 926 A.2d 477, 486-87 (Pa. Super. 2007), the scope of the gist of the action was described as follows:

The gist of the action doctrine acts to foreclose tort claims: 1) arising solely from the contractual relationship between the parties; 2) when the alleged duties breached were grounded in the contract itself; 3) where any liability stems from the contract; and 4) when the tort claim essentially duplicates the breach of contract claim or where the success of the tort claim is dependent on the success of the breach of contract claim. The critical conceptual distinction between a breach of contract claim and a tort claim is that the former arises out of “breaches of duties imposed by mutual consensus agreements between particular individuals, ” while the latter arises out of “breaches of duties imposed by law as a matter of social policy. ” (emphasis added.) (citations omitted.)

The relationship between plaintiff and PNC was contractual. Plaintiff does not question PNC’s right under the contractual relationship to withdraw overdraft fees from plaintiff’s account when there has been an overdraft. The dispute is over whether the Account Agreement permitted PNC to calculate overdraft fees by posting all debit transactions at the end of a business day using a high-to-low posting sequence. The success of a conversion action would depend upon whether PNC was obligated to calculate overdraft fees through a method different from the method it had used in calculating plaintiff’s overdraft fees.

I agree with PNC that the gist of the action doctrine bars plaintiff’s conversion claim. Plaintiff voluntarily deposited money with PNC with the understanding that the rights and obligations of the parties concerning this money would be governed by the Account Agreement. Thus, because liability stems from the alleged breach of implied contractual duties, the success of the tort claim is dependent on the success of the breach of contract claim.

V. UNJUST ENRICHMENT

The fifth count of plaintiff’s complaint sets forth an unjust enrichment claim based on allegations that PNC unjustly received benefits in the form of excessive and unnecessary overdraft fees, and that it would be inequitable for PNC to retain these fees.

I am sustaining PNC’s preliminary objections in the nature of a demurrer as to this cause of action. Plaintiff and PNC maintain a contractual relationship. The doctrine of unjust enrichment is inapplicable where the relationship between the parties is founded upon a contract; it applies only where there is no contract. Wilson Area Sch. Dist. v. Skepton, 586 Pa. 513, 520, 895 A.2d 1250, 1254 (2006).

VI. RELIEF PURSUANT TO DECLARATORY JUDGMENTS ACT

Plaintiff alleges that PNC continues to post all debit transactions at the end of a business day, using a high-to-low posting sequence. Consequently, I am overruling PNC’s preliminary objections as to Count VI.

VII. INDISPENSABLE PARTY

In its preliminary objections, PNC contends that the complaint is procedurally deficient because it fails to name an indispensable party, the joint account holder.

Plaintiff alleges that the checking account that serves as the basis for Candace Henry’s cause of action was an account held jointly with her husband, David A. Henry. PNC correctly states that when a husband and a wife own a joint bank account, they hold the account as tenants by the entireties. PNC next contends that when property is owned by a husband and wife as tenants by the entireties, both are indispensable parties to any action involving the joint bank account.

The case law does not support PNC’s contention that plaintiff’s husband must be joined. In Miller v. Benjamin Coal Co., 625 A.2d 66 (Pa. Super. 1993), a truck owned by a husband and wife was damaged in a traffic accident. The husband sued the other driver to recover the full amount of the property damage. The trial court denied the other driver’s request for a directed verdict on the ground that the wife was an indispensable party who had not been joined, and a verdict was entered in favor of the husband.

On appeal, the Pennsylvania Superior Court rejected the other driver’s contention that the wife was an indispensable party. The court stated:

[wjhere a marriage continues to exist, however, we perceive no reason for holding that one spouse cannot act as agent for the entireties estate in bringing an action to recover damages for injury to the entireties property so long as the action benefits both spouses and there is no evidence rebutting the presumption of authority to act

Id. at 68.

VIII. OTHER LITIGATION

I will briefly discuss litigation in other courts addressing claims of bank customers arising out of the practice of other banks of calculating overdraft fees in generally the same manner as PNC. I have not relied on these cases for several reasons:

My rulings are based on my reading of the specific language used in the PNC documents. Differences in language can result in different outcomes.

Pennsylvania case law is well settled as to the applicability of the implied covenant of good faith and fair dealing, the uses of the unconscionability doctrine and the gist of the action doctrine.

There are differences between the Pennsylvania Consumer Protection Law and the consumer protection laws of other jurisdictions that may produce different results in litigation challenging overdraft fees.

PNC relies on Hassler v. Sovereign Bank, 644 F.Supp.2d 509 (D.N.J. 2009), a class action in which the plaintiff challenged Sovereign Bank’s practice of processing its customers’ debit transactions by using a high-to-low sequence instead of processing these transactions in the order in which the transactions occurred.

The plaintiff raised three claims: breach of contract based on a breach of the covenant of good faith and fair dealing; unjust enrichment; and violation of a New Jersey consumer protection law. These claims were dismissed pursuant to a motion to dismiss filed by the bank.

The basis for the dismissal was the trial judge’s finding that the account agreement expressly provided, in clear language that included the use of bold print, that Sovereign posts payment transactions each business day in descending order, starting with the largest. The court stated that it would be difficult for Sovereign to disclose its practice in clearer or more understandable terms. Id. at 515.

The other three cases of which I am aware are relied on by plaintiff.

In Gutierrez v. Wells Fargo Bank, 730 F.Supp.2d 1080-82 (N.D. Cal. 2010), consumers brought a class action against Wells Fargo based on a high-to-low sequencing practice that transformed one overdraft into as many as ten overdrafts — ten being the voluntary limit the bank had imposed.

Following a bench trial, the court issued an injunction, ordering Wells Fargo to cease its practice of posting debit card transactions from high to low, and awarded restitution of close to $203 million to restore to the class overdraft fees wrongfully extracted by Wells Fargo. Id. at 1140.

The trial judge made the following findings:

The bank’s disclosures did not articulate that the bank had already adopted a high-to-low practice; the disclosures upon which the bank relied were buried in a single-spaced writing of over sixty pages in tiny, ten-point font; no reasonable depositor could be expected to read the entire agreement or locate the disclosure; the length and complexity of the agreement made it completely unrealistic to assume that many consumers would actually read those lengthy documents; if consumers read the agreement, few would actually understand the posting process because it was not clearly explained; when a customer complained about overdraft fees, Wells Fargo would send a response letter containing straightforward language explaining the actual posting order used by the bank, which further amplified the great lengths the bank undertook to burry the words deep in a lengthy fine-print document and to ensure the words selected were too vague to warn the depositor. Id. at 1113-15.

The court considered the California Business and Professions Code which prohibits business acts or practices that are unlawful, unfair, or fraudulent and ruled this legislation bars a bank from using an established practice of maximizing the number of returned checks for the sole purpose of increasing the amount of check fees — it has a duty to act in good faith. Id. at 1121, 1127.

The court said that where the contract confers on one party discretionary power of protecting the rights of the other, there is a duty imposed to exercise that discretion in good faith in accordance with fair dealings. Express grants of discretion are subject to the reasonable expectations of the parties. Customers do not reasonably expect that they will have to pay up to ten overdraft fees when only one would ordinarily be incurred. Id. at 1122.

According to the court, to establish liability under the fraud provisions of the California Business and Professional Code, it is necessary only to show that members of the public are likely to be deceived. Unlike common law fraud, it is not necessary for the plaintiff to prove a fraudulent deception. The question is what would be the likely effect of such a practice on a reasonable consumer. Id. at 1126-27.

In the next case, In re Checking Account Overdraft Litigation, 694 F.Supp.2d 1302 (S.D. Fla. 2010), the plaintiffs were current or former checking account customers of several banks who sought to recover (for themselves and all other customers similarly situated) excessive overdraft fees charged to their accounts on debit card transactions. The common nucleus of fact concerned the banks’ practice of reordering debits from the plaintiffs’ accounts and posting any charges from the largest to the smallest, thus, maximizing overdraft fee revenue. Id. at 1307.

The plaintiffs filed breach of contract claims alleging breach of the implied covenants of good faith and fair dealing. The defendants sought dismissal on the ground that the implied covenant cannot vary express contractual terms. The plaintiffs5 response, with which the court agreed, was that they were not seeking to vary the language of the contract but, rather, to have the express contractual terms carried out in good faith. The plaintiffs’ claim was simply that the ordering of debit transactions must be carried out in a manner consistent with the covenant of good faith and fair dealing. When a party is given discretion to act under a contract, discretion must be exercised in good faith. Id. at 1314-15.

The complaints included a count for unconscionability based on the reordering of the debit postings in bad faith so as to maximize the number of overdraft charges. The banks contendedthatunconscionability is not an affirmative cause of action; rather, case law empowers a court addressing allegations of unconscionability to do no more than refuse enforcement of the unconscionable section or sections of the contract. The plaintiffs contended that courts can utilize equitable powers to issue a declaratory decree that the contractual terms and practices are unconscionable and to award damages for the bank’s past enforcement of the terms. Id. at 1318.

The court agreed with the plaintiffs, stating that if the overdraft provisions are found to be unconscionable, the court retains authority and discretion to fashion appropriate equitable relief. This cause of action should be recognized where the customer never had the opportunity to raise unconscionability as a defense for withholding payment; the only opportunity to raise unconscionability is through a lawsuit filed by the customer after payment has been made. Id. at 1318-19.

The court permitted an unjust enrichment claim to be raised contingent upon a finding that an express contract does not exist. Id. at 1321-22.

The court permitted the plaintiffs to pursue the tort of conversion. The court stated that the plaintiffs unquestionably had the right to possess the funds in their bank accounts upon demand to the bank, and the plaintiffs were deprived of that right because the defendant wrongfully took the funds. A conversion action may be based on this interference with the plaintiffs’ property interest in the funds. Id. at 1322-23.

In White v. Wachovia Bank, 563 F.Supp.2d 1358, 1360-61 (N.D. Ga. 2008), the plaintiffs opened a joint checking account with Wachovia and executed a standard deposit agreement. The plaintiffs alleged that Wachovia routinely enforces a policy whereby charges are posted in the order of largest to the smallest amounts, even where larger charges are received days after smaller charges.

The plaintiffs raised a breach of contract claim based on the implied covenant of good faith. The court allowed this claim to proceed because the language of the agreement did not, by its express terms, grant the bank absolute or uncontrolled discretion in exercising its contractual rights. Id. at 1363-66.

The court also ruled that the complaint set forth a plausible claim under a Georgia consumer protection law. The court concluded that if the plaintiffs’ allegations are true — that Wachovia charges consumers for insufficient funds in connection with transactions for which the account had sufficient funds — this practice comes within the provisions of the law forbidding any unfair or deceptive acts or practices in the conduct of consumer transactions. Id. at 1369-70.

The court permitted the conversion cause of action to go forward because of allegations that Wachovia imposed overdraft fees when there was, in fact, no overdraft, and, furthermore, refused to return the funds upon demand by the plaintiffs. Id. at 1371.

The court dismissed the unjust enrichment claim because there was a legal contract covering Wachovia’s posting of transactions and the imposition of overdraft fees.

The court dismissed the unconscionability claim stating that the plaintiffs’ argument in support of this claim is in tension with their argument, which the court found to be persuasive, that Wachovia breached its duty of good faith and fair dealing. Furthermore, because of Georgia legislation allowing items to be charged in any order, there cannot be substantive unconscionability.

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

ORDER OF COURT

On this January 31, 2012, upon consideration of defendant’s preliminary objections seeking dismissal of each count of plaintiff’s six-count amended complaint, it is ordered that plaintiff’s unconscionability, conversion, and unjust enrichment counts are dismissed and defendant’s preliminary objections are otherwise overruled.

      . Plaintiff alleges that a $36.00 fee is charged for each and every transaction that results in an overdraft for up to four overdrafts per day.

      . For a court to find a contractual provision unconscionable, it must determine the contractual provision unreasonably favors the drafter, and there was no meaningful choice on the part of the other party regarding acceptance of the provisions. Todd Heller, Inc. v. United Parcel Service, Inc., 754 A.2d 689, 700-01 (Pa. Super. 2000).

      . In this opinion, I am not considering whether there would be any merit to such an argument.

      . Plaintiff will not raise this defense in this case because of my ruling that there are no contractual provisions authorizing the use of high-to-low posting at the end of the business day.

      . The gist of the action doctrine applies to claims for conversion. Pittsburgh Constr Co. v. Griffith, 834 A.2d 572, 593 (Pa. Super. 2003); Chapski v. Moravian at Indep. Sq. Condominium Ass’n, 2 Pa. D.&C.5th 48, 55-56 (Phila. 2007); and Koken v. Commonwealth Prof’l Group, Inc., 2006 WL 334787, *1 (Phila. 2006).


source: Caselaw Access Project

author: COX, J.,

license: Public Domain

text:
    Navolio v. Lawrence County

      C.P. of Lawrence County,
    No. 10358 of 2010.

      Gianni Floro, for plaintiff.

      Philip J. Sbrolla and Carolyn C. Batz, for defendant
    February 9, 2012
   COX, J.,

Before the court for disposition is the motion for summary judgment filed by the defendant Lawrence County, which argues that it is protected from liability in the current case by government immunity as stated in 42 Pa.C.S.A. § 8541, et seq.

The decedent, Matthew A. Hamilton, was arrested by the New Castle Police Department on a bench warrant and incarcerated at Lawrence County Corrections on September 13, 2006. At that time, the decedent was under the influence of alcohol, Roxy codone, Fentanyl and Xanax. He was placed in the HB Block of the facility and he received medical treatment from the defendant PrimeCare Medical, Inc. (hereinafter “PrimeCare”) for detoxification from drug dependence. PrimeCare medicated the decedent by providing him with Vistaril and Bentyl, which had several possible side effects, such as dizziness, drowsiness, sleepiness, confusion, blurred vision, dry mouth, nausea or vomiting. He was also restricted to the bottom bunk of his cell for ten days during his detoxification. On S eptember 15, 2006, at approximately 8:30 p.m., PrimeCare administered the medications to the decedent, which required him to walk from his cell and down a flight of stairs to the central command area of the HB Block section of the jail. Several excerpts from the depositions of Lynn Sharp, a nurse employed by PrimeCare, were provided to this court. She testified it was common to mandate that inmates who were going through the detoxification process sleep on the bottom bunk, similar to the decedent, as they may have seizures or become dehydrated from a lack of food or water. She stated that the decedent received his treatment and began walking to his cell. She also recalled that the decedent was having a difficult time “detoxing”, but he ambulated without difficulty and was alert at the time he was there. It must be noted that he vomited twice between dinner and his encounter with Ms. Sharp. Captain Shawn Cama, an employee of Lawrence County Corrections, explained that the decedent reached the top of the stairs, took a few steps, turned around and walked back toward the stairs. Once he reached the stairs, the decedent grabbed the railing, turned around, leaned against the hand rail and fell backwards. He landed on the concrete floor feet first and tumbled backwards striking his head. Captain Cama insisted that the decedent “jumped” over the railing and the fall was not accidental. Conversely, the plaintiff presented the Mahoning County Coroner’s Report, which indicated that Captain Cama informed Thomas Pappas, the investigator from the Mahoning County Coroner’s Office, that the decedent fell over the railing. The plaintiff has also supplied the opinion of Cyril H. Wecht, M.D., J.D., who stated that the decedent’s death may have been attributed to the medications he received and the facility’s failure to employ adequate safety measures for possible adverse drug reactions. It must be noted that the plaintiff has presented the court with a copy of the 2006 International Building Code, which mandates that a “guard” shall be constructed along the open sides of any mezzanine, which must create a protective barrier of not less than 42 inches measured vertically from the edge of the tread, adjacent walking surface or adjacent seatboard. In addition, handrails of a height not less than 34 inches nor more than 38 inches must be installed on stairways. The plaintiff alleges that the railings on the stairway in the current matter were only 32 inches high.

Upon suffering the injury, the decedent’s detainer was lifted and he was transported to Jameson Memorial Hospital by paramedics. The decedent was then transported by STAT MedEvac helicopter to St. Elizabeth’s Health Center where it was diagnosed that he suffered bilateral frontal hemorrhagic contusions, a right subdural hematoma, a right frontal subarachnoid hemorrhage, a midline shift to the left, fractures of the left temporal, occipital and parietal bones and a fracture of the right temporal. He remained in a comatose state until he died at 7:20 p.m. on September 25, 2006.

Based upon those facts, the plaintiff Brenda Navolio filed suit in United States District Court for the Western District of Pennsylvania against the defendants Lawrence County and PrimeCare arguing that the defendants violated 42 U.S.C. 1983, et. seq., and they were negligent by failing to implement proper protocols for transporting inmates who were experiencing side effects from medical treatments and the railing in question was of inadequate height to properly protect the decedent from injury. On February 9, 2010, the Honorable Terrence F. McVerry granted summary judgment in favor of the defendants on all of the plaintiff’s federal claims and declined to render a decision on the state law claims. The plaintiff then filed a Praecipe To Transfer Case Purusant To 42 Pa.C.S.A. § 5103 to transfer the negligence claim to state court on March 9, 2010, and filed a notice of appeal of Judge McVerry’s rulings on March 19, 2010. The parties agreed to stay the state court proceedings until the outcome of the federal appeal was decided. On Januaiy 19, 2011, the Third Circuit Court of Appeals affirmed Judge McVerry’s decision.

Now, Lawrence County has filed a motion for summary judgment claiming that the Political Subdivision Tort Claims Act, 42 Pa.C.S.A. § 8541, et seq., grants it immunity in the current matter and none of the eight enumerated exceptions to the same apply. More specifically, Lawrence County contends that the real property exception in 42 Pa.C.S.A. § 8542(b)(3) does not apply to situations in which an inmate is injured while incarcerated.

The purpose of the Summary Judgment Rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after the relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). The mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for a trial. The summary judgment rule exists to dispense with a trial of the case or, in some matters, issues in a case, where a party lacks the beginnings of evidence to establish or contest a material issue. Ertel v. Patriot-News Company, 544 Pa. 93, 674 A.2d 1038 (1996). Any party may move for summary judgment in whole or in part as a matter of law whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report or if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa.R.C.P. No. 1035.2.

Summary judgment may be granted only in cases where it is clear and free from doubt that there is no genuine issue as to any material fact and that the moving party is entitled to a summary judgment as a matter of law. Kafando v. Erie Ceramic Arts Co., 764 A.2d 59, 61 (Pa. Super. 2000) (citing Rush v. Philadelphia Newspapers, Inc., 732 A.2d 648, 650-651 (Pa. Super. 1999)). The moving party bears the burden of proving the non-existence of any genuine issue of material fact. Id. A material fact, for summary judgment purposes, is one that directly affects the outcome of the case. Gerrow v. Shincor Silicones, Inc., 756 A.2d 697 (Pa. Super. 2000). The non-moving party bears a clear duty to respond to a motion for summary judgment under Pa.R.C.P. No. 1035.3(a). The non-moving party must adduce sufficient evidence on issues essential to his case on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ertel, 544 Pa. 93, 674 A.2d 1038. The non-moving party must demonstrate that there is a genuine issue for trial and may not rest on averments in its pleadings. DeSantis v. Frick Company, 745 A.2d 624 (Pa. Super. 1999).

When determining whether to grant a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 752 A.2d 339 (2000). Summary judgment is proper only when the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. P.J.S. v. Pennsylvania State Ethics Comm’n., 555 Pa. 149, 153, 723 A.2d 174, 175 (1999). The trial court must confine its inquiry when confronted with a motion for summary judgment to questions of whether material factual disputes exist. Township of Bensalem v. Moore, 152 Pa. Cmwlth. 540, 620 A.2d 76 (1993). It is not the function of the court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Pennsylvania Securities Commission, 143 Pa. Cmwlth. 494, 579 A.2d 1358 (1990).

Pursuant to the Political Subdivision Tort Claims Act, local agencies will not be held liable for any damages for inj uries to a person or property caused by any act of the local agency or its employee. 42 Pa.C.S.A. §8541. However, 42 Pa.C.S.A. §8542(b)(3) provides for an exception to that general rule for real property and is stated as follows:

(b) Acts which may impose liability. — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:
(3) Real property. — The care, custody or control of real property in the possession of the local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on the real property in the possession of the local agency. As used in this paragraph, “real property” shall not include:
(i) trees, traffic signs, lights and other traffic controls, street lights and street lighting systems;
(ii) facilities of steam, sewer, water, gas and electric systems owned by the local agency and located within rights-of-way;
(iii) streets; or
(iv) sidewalks.

The real property exception to government immunity includes articles of personal property affixed to the real property in a manner so as to become realty itself, which are otherwise known as fixtures. Davis v. Brennan, 698 A.2d 1382, 1383 (Pa. Cmwlth. 1997) (citing Kelly v. Curwensville Area High School, 141 Pa. Cmwlth. 449, 595 A.2d 787 (1991)). “Whether or not a chattel or article of personal property has become a fixture or realty necessarily involves factual considerations, i.e., the manner in which the chattel was physically attached or installed, the extent to which the chattel was physically attached or installed, the extent to which the chattel is essential to the permanent use of the building or other improvement, and the intent of the parties who attached or installed the chattel.” Id., 698 A.2d at 1384 (citing Noll v. Harrisburg Areas YMCA, 537 Pa. 274, 643 A.2d 81 (1994)). A chattel is deemed to be permanently attached when it is affixed by cement, plaster, nails, bolts or screws. Id. In Mellon v. City of Pittsburgh Zoo, 760 A.2d 921, 924 (Pa. Cmwlth. 2000), the court determined that a moving walkway which transports people up and down the hillside between the parking area and the main grounds of the Pittsburgh Zoo was included in the real property exception as it was permanently affixed to the real property. Conversely, a concert bleacher fails to invoke the real property exception to government immunity as there was no attachment of the bleacher to the real property on which it rested to classify it as a fixture. Blocker v. City of Philadelphia, 563 Pa. 559, 562-563, 763 A.2d 373, 375 (2000).

“The real property exception applies only to those cases where acts of the local agency or its employees make the property unsafe for the activities for which it is regularly used, for which it is intended to be used or for which it may reasonably be foreseen to be used.” Moles v. Borough of Norristown, 780 A.2d 787, 791 (Pa. Cmwlth. 2001) (citing Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987)). The real property exception may only be applied to cases where the harm was caused by the alleged artificial condition or defect of the land, not when that injury is facilitated by the acts of others. Mascaro, 514 Pa. at 363, 523 A.2d at 1124. “The real estate exception, however, has consistently been held to be unavailable to those whose claim of negligence consists of a failure to supervise the conduct of students or persons adequately.” Id., 514 Pa. at 362, 523 A.2d at 1124 (citations omitted).

Lawrence County cites to Harding v. Galyias, 117 Pa. Cmwlth. 371, 544 A.2d 1060 (1988), for the proposition that the real property exception does not apply to an alleged jail suicide committed by an inmate on municipal property. In that case, the decedents committed suicide shortly after being incarcerated in municipal jail by hanging themselves from the bars of the cell with their bootlaces. The appellants attempted to impose liability upon the city through the real property exception alleging that the city was negligent by maintaining jail cells with bars, lack of proper surveillance, lack of cells that were non-isolated or otherwise visible to jail guards and lack of barless cells or rooms for non-violent offenders.

The court explained, “While these cases do indicate that negligent design of a facility owned by a local agency might result in liability, that is not the only prerequisite which must be met to bring an action within the real property exception to governmental immunity.” Id., 117 Pa. Cmwlth. at 379, 544 A.2d at 1064. As such, the court noted that the injury for which the appellants sought damages were deaths as the result of suicide by hanging, which was brought about by the actions of the decedents themselves. Although, the condition of the jail made it easier for them to hang themselves, the condition of the jail facilities did not cause the death of the decedents. Id., 117 Pa. Cmwlth. at 380, 544 A.2d at 1065. For those reasons, the Harding court determined that the real property exception to government immunity did not apply. Id.

In the case sub judice, the plaintiff claims that the real property exception to government immunity applies to the current matter as the guard or railing on the stairway that was being traversed by the decedent was of insufficient height, which caused his accident. The decedent, Matthew A. Hamilton, was arrested by the New Castle Police on a bench warrant and was incarcerated in Lawrence County Corrections on September 13,2006, while he was under the influence of alcohol, Roxy codone, Fentanyl and Xanax. He was placed in the HB Block of the facility and he received medical treatment from the defendant, PrimeCare, who provided him with Vistaril and Bentyl for detoxification from drug dependence. Those medications had several possible side effects, such as dizziness, drowsiness, sleepiness, confusion, blurred vision, dry mouth, nausea or vomiting. He was also restricted to the bottom bunk of his cell for ten days during his detoxification. On September 15, 2006, at approximately 8:30 p.m., the decedent walked from his cell on HB block down a flight of stairs to the central command area of the HB Block section of the jail to receive his medications. Lynn Sharp, the nurse for PrimeCare who administered the drugs to the decedent, testified it was common to mandate that inmates who were going through the detoxification process sleep on the bottom bunk, similar to the decedent, as they may have seizures or become dehydrated from a lack of food or water. She explained that the defendant received his treatment and began walking to his cell. She also stated that the decedent was having a difficult time “detoxing,” but he ambulated without difficulty and was alert at the time he was there. It must be noted that he vomited twice between dinner and his encounter with Ms. Sharp. Captain Shawn Cama testified that the decedent reached the top of the stairs, took a few steps, turned around and walked back toward the stairs. Once he reached the stairs, the decedent grabbed the railing, turned around, leaned against the hand rail and fell backwards. He landed on the concrete floor feet first and tumbled backwards striking his head. Captain Cama was insistent that the decedent jumped over the railing and the fall was not accidental. To rebut the contention that the decedent jumped, the plaintiff presented the Mahoning County Coroner’s Report, which indicated Captain Cama informed Thomas Pappas, the investigator from the Mahoning County Coroner’s Office, that the decedent leaned against the railing and fell backwards. There is no indication in that report that the decedent “jumped.” Moreover, the plaintiff provided the court with the opinion of Cyril H. Wecht, M.D., J.D., who stated that the decedent’s death could have been attributed to the medications he received and the facility’s failure to employ adequate safety measures for possible adverse dmg reactions. Upon suffering the injury, the decedent was diagnosed with bilateral frontal hemorrhagic contusions, a right subdural hematoma, a right frontal subarachnoid hemorrhage, a midline shift to the left, fractures of the left temporal, occipital and parietal bones and a fracture of the right temporal. He remained in a comatose state until he died at 7:20 p.m. on September 25, 2006.

It appears that the plaintiff has provided the court with sufficient evidence to establish an issue of material fact regarding whether the decedent fell or jumped over the railing. The plaintiff also alleges that the railing in question was constructed 32 inches high in violation of the 2006 International Building Code. In support of that contention, the plaintiff has presented the court with a copy of the 2006 International Building Code, which mandates that a “guard” shall be constructed along the open sides of any mezzanine, which must create a protective barrier of not less than 42 inches measured vertically from the edge of the tread, adjacent walking surface or adjacent seatboard. In addition, handrails of a height not less than 34 inches nor more than 38 inches must be installed on stairways. According to the existing case law, the real property exception applies if the chattel in question is permanently affixed to the land and whether that chattel caused the harm suffered by the decedent. In this case, the plaintiff has presented facts, if believed to be true, set forth that the decedent climbed the stairs, reached the top, walked forward a couple of steps, retreated toward the stairs, leaned against the railing and fell over the side causing his fatal injuries. Moreover, the plaintiff contends that the railing, which she insists was constructed at a height of 32 inches, was not of sufficient height to meet the 2006 International Building Code. It is apparent that the stairs in question are permanently affixed to the real property. Moreover, if the Mahoning County Coroner’s Report and opinion of Dr. Wecht are viewed in a light most favorable to the plaintiff, there are sufficient circumstances to establish a question of material fact regarding whether the decedent jumped or fell over the railing. Unlike the Harding case, the plaintiff in this matter has provided facts to rebut the testimony that the decedent committed suicide by jumping over the ratling, In Harding, it was apparent the inmates committed suicide; however, in the current case, there is evidence that the decedent fell over the railing, which was erected at an inadequate height according to the 2006 International Building Code. Hence, the plaintiff has presented evidence to establish an issue of material fact regarding her contention that the railing was of insufficient height to adequately protect the decedent from injuring himself due to adverse reactions to Visatril and Bentyl, which were prescribed to alleviate the symptoms of the detoxification process. The plaintiff’s cause of action regarding the height of the railing is permitted to proceed to trial.

Conversely, there is no exception that supports imposing liability upon Lawrence County regarding the lack of protocols for transporting inmates who were being treated with medications or for failing to monitor inmates who were being treated with medications. As a result, Lawrence County’s motion for summary judgment must be granted regarding the plaintiff’s negligence claims for the failure to properly supervise or protect the decedent, who was transported after being medicated.

For the reasons set forth in this opinion, Lawrence County’s motion for summary judgment is granted in part and denied in part. The motion is granted regarding the plaintiff’s negligence claims for the failure to properly supervise or protect the decedent, who was transported after being medicated. However, the motion for summary judgment is denied regarding the plaintiff’s cause of action regarding the inadequate height of the railing on the stairway.

ORDER OF COURT

Now this February 9, 2012, this case being before the court on October 31, 2011, for oral argument on the motion for summary judgment filed by the defendant Lawrence County, with the plaintiff Brenda S. Navolio, individually and as administratrix of the estate of Matthew Adam Hamilton, deceased, appearing through counsel, Gianni Floro, Esquire and the defendant Lawrence County appearing through counsel, Carolyn C. Batz, Esquire and after consideration of the arguments and briefs presented and submitted by counsel and a complete and thorough review of the applicable record, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

1. In accordance with the attached opinion, the motion for summary judgment is hereby granted as to any claims by the plaintiff against the defendant Lawrence County as to negligence for failure to properly supervise or transport the deceased, Matthew A. Hamilton.

2. In accordance with the attached opinion, the motion for summary judgment regarding the inadequate height of the railing is denied. The Prothonotary is directed to serve a copy of this order of court upon counsel of record, Gianni Floro, Esquire and Carolyn C. Batz, Esquire.

      . Inmates going through the detoxification process often suffer from a lack of appetite and fail to consume adequate supplies of food and liquids.


author: FORD, J.,

text:
    Mayo v. McIntyre

      C.P. of Lehigh County,
    No. 2010-C-1978.

      Mark Sigmon, for plaintiff.

      Michael P. McIntyre, pro se.
    January 18, 2012
   FORD, J.,

Before the court for disposition are two motions for sanctions filed by defendant, Michael R McIntyre, Esquire (McIntyre), who was sued in this legal malpractice case. In seeking sanctions, McIntyre asserts that counsel for plaintiffs, Mark S. Sigmon, Esquire (Sigmon), violated the terms of Pa.R.C.R 1023. 1 and Pa.R.C.P. 1042.3. For the reasons that follow, McIntyre is correct. Sigmon’s conduct in violating these rules makes the imposition of sanctions necessary and proper. Sigmon’s conduct was obdurate by him and vexatious to McIntyre.

Plaintiffs, William R. Mayo (Mayo) and his two corporations, William R. Mayo, Inc., and Mayo Motors, Inc. (corporate plaintiffs), negotiated a sale of one of Mayo’s car dealerships to another local car dealer. After the sale was completed, Mayo asserted that the settlement sheet did not accurately reflect the terms of the sale and that plaintiffs had been swindled out of $165,000. Thus, plaintiffs filed suits against the other car dealer and its corporate affiliates to recover the $165,000. McIntyre served as attorney for plaintiffs in those suits. On April 29, 2008, a jury returned a verdict in favor of plaintiffs and against the other car dealer and its affiliates for only $1,440.

Plaintiffs contended that the jury’s failure to award the full $165,000 resulted from legal malpractice on the part of McIntyre. Thus, plaintiffs began the case at hand by filing a praecipe for writ of summons against McIntyre on April 21, 2010. In response to McIntyre’s request, the Clerk of Judicial Records issued a rule on plaintiffs on May 7, 2010, to file a complaint.

On June 4, 2010, Sigmon presented a motion in court for leave to obtain pre-complaint discovery. Sigmon indicated that he needed pre-complaint discovery to investigate whether a case for legal malpractice could be made against McIntyre for not representing plaintiffs properly in their attempt to recover the $165,000. Specifically, Sigmon stated that he needed to take the depositions of seven individuals “to ascertain if there [were] facts” sufficient to enable him to prepare and file a certificate of merit in support of a legal malpractice complaint against McIntyre. He added:

And as I said, Judge, I can’t in addition actually file the complaint because I don’t want to file the complaint until I’m in a position to know as a lawyer doing a job for my client but also an officer of the court that it would have a meritorious claim of legal malpractice.

In the same proceeding on June 4, 2010, Sigmon presented a motion to extend the time for filing a complaint. In Paragraph 11 of that motion, Sigmon stated that the requested pre-complaint discovery “could result in the actual discontinuance of the case at bar (the present legal malpractice action), with prejudice, all depending upon what the depositions of the seven (7) persons set forth above reveal.” This same statement was made in Paragraph 14 of the motion for pre-complaint discovery.

On July 9, 2010,1 entered an order denying Sigmon’s request for pre-complaint discovery. In reaching this conclusion, I determined that plaintiffs lacked probable cause for a legal malpractice action against McIntyre. The full explanation for this ruling is contained in the explanatory footnote to the July 9 order. In the July 9 order, I additionally allowed plaintiffs 20 days to file a complaint. On this subject, I stated in the footnote to the order: “It is now the appropriate time to compel plaintiffs to file their complaint against defendant if they have sufficient facts to legitimately state a cause of action against defendant. ” (Emphasis added).

On August 2, 2010, Sigmon filed a complaint alleging legal malpractice and breach of contract (based on a legal malpractice theory) against McIntyre. McIntyre responded by filing preliminary objections to the complaint on August 27, 2010. By order dated December 23, 2010, I sustained in part and overruled in part the preliminary objections. I ordered that plaintiffs’ complaint be stricken because it lacked specific factual averments to support the malpractice claim. Also, Sigmon had no evidence of malpractice against McIntyre when Sigmon filed this complaint. It is admitted that Sigmon had the same knowledge about McIntyre’s representation of Mayo when he filed this complaint as he did on the day he requested pre-complaint discovery in court. I afforded plaintiffs the opportunity to get evidence and to file an amended complaint.

Sigmon filed an amended complaint on January 12, 2011. McIntyre responded by filing preliminary objections to the amended complaint on January 31,2011.1 conducted argument on the preliminary objections to the amended complaint on May 17, 2011. When Sigmon was making his argument in opposition to the second preliminary objections, the following exchange occurred:

The court: I have a question. Let me get my question out. I do remember. I’m not sure what proceeding, but you did stand right here (on June 4, 2010) and say that you don’t know what this set of witnesses is going to say. You would like to take discovery to find out what they’re going to say, and maybe once they say it, I (referring to Sigmon) wouldn’t have a case. Maybe whatever they have to say does give me (Sigmon) a case. You really gave me the impression from things said here, apparently on the record if I’m not mistaken, that you really didn’t have grounds for a legal malpractice case.
Now, if Mr. McIntyre is correct about judicial admissions, that’s an interesting argument. I don’t know the answer as I sit here. But assuming you’re stuck with what you said previously, do you have new evidence here? Do you have evidence here that you didn’t have before? Or are you trying to draw from things that you had; the same things that you had back then, you still have now and you tried to draw from those to draft these provisions in the complaint?
MR. SIGMON: Judge, I don’t have any new evidence yet. I’ll be blunt about it, Judge, and obviously there’s a record taken. I attempted to have discussions so I could have something else. I’ve basically been told, until there’s a deposition, I’m not going to be given any other information.
The court: Got it.
MR. SIGMON: And I won’t tell the court anything different.

On July 15, 2011, I entered an order sustaining McIntyre’s preliminary objections, striking plaintiffs’ amended complaint and dismissing this case in its entirety. In the opinion accompanying the order of July 15,1 explained that it was improper to permit plaintiffs to proceed with admittedly unfounded complaints contrary to the decisions of our appellate courts and rules of procedure. I further noted the unusual verification to the amended complaint signed by Sigmon. The verification read that the “Amended Complaint is legal in nature,” and counsel alone is “best qualified to execute the foregoing Amended Complaint.” I interpreted this to be a further acknowledgement that plaintiffs did not have the evidence needed to support their legal malpractice claim and the related breach of contract claim.

In essence, Sigmon sought pre-complaint discoveiy and then filed two successive complaints alleging malpractice against McIntyre when he had no evidence on any of those occasions to support a malpractice case.

In the first motion for sanctions which was filed on May 17, 2011, McIntyre asserts that Sigmon violated Pa.R.C.P. 1023.1 in two ways. First, McIntyre contends that Sigmon prepared, signed and filed plaintiffs’ complaint and amended complaint knowing that there existed no factual support for the generalized allegations of legal malpractice contained in those pleadings. Second, McIntyre asserts that Sigmon prepared, signed and filed the pleadings knowing that they included claims which were not recognized by any existing legal authority.

According to Pa.R.C.P. 1023.1,

(c) The signature of an attorney or pro se party constitutes a certificate that the signatory has read the pleading, motion, or other paper. By signing, filing, submitting, or later advocating such a document, the attorney or pro se party certifies that, to the best of that person’s knowledge, information and belief, formed after an inquiry reasonable under the circumstances,
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law,
(3) the factual allegations have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery;...

Furthermore, Pa.R.C.P. 1023.1(d) provides: “[i]f, after notice and a reasonable opportunity to respond, the court determines that subdivision (c) [of Pa.R.C.P. 1023.1] has been violated, the court may . .. impose an appropriate sanction upon any attorneys, law firms and parties that have violated subdivision (c) or are responsible for the violation.”

Sigmon and McIntyre disagreed over the legality of several of the claims contained in plaintiffs’ complaint and amended complaint. These disagreements were analyzed by the court in both the preliminary objections to the complaint and the preliminary objections to the amended complaint. The legal issues raised in addressing the objections to these claims were complex and were open to reasonable differences of opinion. Thus, I conclude that Sigmon’s arguments in support of the legality of the claims in the pleadings were non-frivolous. Thus, Sigmon did not violate Pa.R.C.P. 1023.1(c)(2).

On the other hand, Sigmon did violate Pa.R.C.P. 1023.1(c)(3) by submitting a complaint and an amended complaint without evidentiary support. In his written request for discovery and in court on June 4,2010, Sigmon volunteered that he was unable to file a complaint without pre-complaint discoveiy because he did not have any facts supporting a claim for legal malpractice against McIntyre. Yet, after I denied the request for pre-complaint discovery, Sigmon filed a complaint and then an amended complaint alleging malpractice. At the May 17, 2011, argument on McIntyre’s preliminary objections to the amended complaint, Sigmon admitted that he had obtained no additional evidence since his court appearance on June 4, 2010. Thus, Sigmon effectively acknowledged that he prepared, signed, and filed a complaint and an amended complaint claiming legal malpractice when he was unaware if there was factual support for those claims. These actions by Sigmon violate Pa.R.C.P. 1023.1(c)(3) and justify the imposition of sanctions pursuant to Pa.R.C.P. 1023.1(d).

This case should have ended when the court denied pre-complaint discoveiy since Sigmon had not otherwise uncovered any evidence of malpractice against McIntyre. It did not end there. Instead, Sigmon prolonged the case by filing a complaint and then an amended complaint. These necessitated the continuation of a defense by McIntyre and caused the unjustified lingering of the malpractice lawsuit for months with consumption of a considerable amount of court time.

In McIntyre’s second motion for sanctions, which was filed on September 19, 2011, he alleges that Sigmon violated Pa.R.C.P. 1042.3 by signing and filing a frivolous certificate of merit to support this malpractice action. McIntyre is correct in this contention.

In a professional negligence case, such as a legal malpractice action,

the attorney for the plaintiff. .. shall file ... a certificate of merit signed by the attorney or party that [states that]...
(1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm,....

Pa.R.C.P. 1042.3(a)(1).

Furthermore,

[a] court may impose appropriate sanctions ... if the court determines that an attorney violated Rule 1042.3(a)(1). . . by improperly certifying that an appropriate licensed professional has supplied a written statement....

Pa.R.C.P. 1042.8(b).

On September 22, 2010, Sigmon filed a certificate of merit. In the certificate, Sigmon indicated that “[a]n appropriate licensed professional” supplied a statement that there was a basis to conclude that McIntyre had committed legal malpractice. However, the “appropriate licensed professional” who prepared the statement was Sigmon’s law partner, William R Exaros, Esquire (Exaros). The statement prepared by Exaros contained general allegations of malpractice nearly identical to the general averments contained in plaintiffs’ complaint and amended complaint.

Neither Sigmon nor Exaros had knowledge of facts to support a malpractice claim against McIntyre. Therefore, it was wrong for Sigmon to request that Exaros prepare the statement alleging malpractice and it was wrong for Exaros to prepare the statement. Moreover, Sigmon and Exaros engaged in a self-serving conflict of interest. In Parkway Corporation v. Edelstein, 861 A.2d 264 (Pa. Super. 2004), the Superior Court commented that it would be improper for plaintiff’s counsel in a legal malpractice action to submit a certificate of merit based on a statement prepared by an attorney from plaintiff’s counsel’s firm. The court noted that the attorney preparing the statement would have “a vested interest in presenting the [malpractice] case as positively as possible,” making the attorney’s credibility “inherently suspect” and precluding him as an “appropriate licensed professional” for purposes of Pa.R.C.P. 1042.3. Id. at 267.

Because Sigmon willfully violated both Pa.R.C.P. 1023.1(c)(2) and Pa.R.C.P. 1042.3, I turn to the issue of the proper sanctions to impose. A list of potential sanctions is provided at Pa.R.C.P. 1023.4, including appropriate non-monetary sanctions, monetary penalty to the court and payment of a damaged party’s legal fees and costs. Pa.R.C.P. 1023.4(a)(2). Furthermore,

[t]he court has significant discretion in determining what sanctions, if any, should be imposed for a violation, subject to the principle that the sanctions should not be more severe than reasonably necessary to deter repetition of the conduct by the offending person or comparable conduct by similarly situated persons.

Explanatory comment to Pa.R.C.P. 1023.1.

With these considerations in mind, I have imposed sanctions on Sigmon which serve several purposes. They impress upon Sigmon that his insensitive and vexatious conduct have adverse consequences. McIntyre will be compensated for his extensive time and considerable trouble in having to defend what need not have been defended. Finally, by compelling Sigmon to return fees collected for any work done by him after the case should have ended, Sigmon will realize no financial benefit from his misconduct.


author: NEALON, J.,

text:
    Millan v. Pennsylvania American Water Co.

      C.P. of Lackawanna County,
    No. 03 CV 4332.

      Lawrence Spegar, for plaintiffs.

      John P. Finnerty, for defendant.
    January 26, 2012
   NEALON, J.,

Plaintiffs have filed a motion for leave to amend the complaint to include a claim for punitive damages. The parties’ submissions reflect that plaintiffs commenced this civil action on October 21,2003 as a result of a fall which allegedly occurred on October 23, 2001 in front of their residence in Dunmore. Plaintiff Ann Millan (“Millan”) contends that she tripped and fell on an elevated water shut-off valve owned and maintained by defendant Pennsylvania American Water Company (“PAWC”). Defendant Linde Enterprises, Inc., (“Linde”) reportedly performed construction work for PAWC in Millan’s neighborhood in June 2000 and allegedly installed blacktopt in a manner which permitted PAWC’s valve to protrude above the sidewalk level. (Docket Entry Nos. 5, 61,65).

Upon the filing of PAWC’s reply to Linde’s cross-claim on March 9, 2004, the pleadings in this matter were closed. (M, No. 12). On November 15,2007, a scheduling order was issued requiring all discovery to be completed by February 4, 2008, with Millan’s expert reports to be produced by February 4, 2008 and the defense expert reports to be served by March 4, 2008. {Id., No. 19). On September 12,2011, PAWC filed a certificate of readiness which had been served upon counsel for Millan and Linde on June 2, 2011. (Id., No. 47). By notice dated September 19, 2011, the court administrator assigned this case to the undersigned for trial, and a status conference was scheduled for October 6, 2011. On that date, an order was issued listing this matter for trial on January 30, 2012 and scheduling a final pre-trial conference on December 20, 2011. (Id, No. 49). Twenty days after the final pretrial conference and three weeks prior to the start of trial, Millan filed the instant motion seeking to amend the complaint under Pa. R.C.P. 1033 to include a claim for punitive damages. (Id., No. 64).

The gravamen of Millan’s motion is that two PAWC representatives testified during their discovery depositions in Kasteleba v. Pennsylvania American Water Company, No. 6572 of 2006 (Luzerne Co.) that box top water covers which are elevated one-half inch above the sidewalk create an unsafe condition for pedestrians. More specifically, Mr. Thomas Laird was deposed on October 28, 2008 and acknowledged that box top covers should be flush with the sidewalk and that a cover which is one-half inch above the sidewalk can create “an unsafe condition.” (Id., No. 64, Exhibit A, p. 51). On December 4, 2008, Mr. Eugene DiVizio of PAWC was deposed in Kasteleba and agreed with Mr. Laird’s testimony regarding the positioning of box top water covers. (Id., exhibit B, pp. 39-40). The depositions of Mr. Laird and Mr. DiVizio related to a fall which occurred in Luzerne County on July 22, 2006, almost five years after Millan’s fall. (Id., exhibit A, pp. 8-12).

Millan submits that the foregoing deposition testimony establishes PAWC’s “awareness of the tripping danger and hazard to the public” and proves that PAWC “acted recklessly and had a reckless indifference to the rights and safety of such persons, including the plaintiffs, Ann and Paul Millan.” (Id., ¶8). For that reason, Millan contends that she should be permitted to amend the complaint to include a claim for punitive damages based upon PAWC’s recklessly indifferent actions. (Id., ¶10). Millan has not submitted a brief in support of her request to amend the complaint pursuant to rule 1033.

In PAWC’s answer and brief in opposition to Millan’s motion, PAWC represents that Millan “has been in possession of the deposition transcripts of Mr. Laird and Mr. DiVizio from the Kasteleba litigation for several years, ” but did not seek to amend the complaint until three weeks prior to trial. (Id., No. 76, ¶3; No. 77, p. 2). PAWC further argues that any conduct related to a fall which occurred on July 22, 2006 cannot serve as a basis for establishing willful, wanton or outrageous conduct by PAWC on or before the date of Millan’s fall on October 23, 2001. (Id., No. 77, pp. 2-4). Additionally, PAWC maintains that since “the two (2) year statute of limitations regarding [Millan’s] claim has long expired, ” Millan cannot amend the complaint in 2012 “to add a claim for punitive damages based on alleged facts that [Millan] did not plead in [Millan’s] original complaint. (Id., p. 3).

Linde also opposes Millan’s motion to amend the complaint to include a claim for punitive damages. With respect to the deposition testimony of Mr. Laird and Mr. DiVizio, Linde likewise avers that Millan has possessed the “testimony of these witnesses and a videotape of the depositions for almost 2 years, ” but first sought to amend the complaint on January 9, 2012. (Id., No. 78, p. 3). Regardless of the timing of Millan’s proposed amendment, Linde posits that “even if everything plaintiffs aver is correct, it demonstrates not recklessness or reckless indifference on behalf of defendant Linde Enterprises, Inc.,” justifying a claim for punitive damages. (Id., p. 4).

Pennsylvania “case law makes it clear that punitive damages are an ‘extreme remedy’ available in only the most exceptional matter.” Phillips v. Cricket Lighters, 584 Pa. 179, 188, 883 A.2d 439, 445 (2005); Wagner v. Onofrey, 2006 WL 3704801 at * 3 (Lacka. Co. 2006). Punitive damages are designed to “heap an additional punishment on a defendant who is found to have acted in a fashion which is particularly egregious.” Phillips, supra, at 190, 883 A.2d at 446. When assessing the propriety of punitive damages, “the state of mind of the actor is vital” and “ [t]he act, or the failure to act, must be intentional, reckless or malicious.” Hutchison v. Luddy, 582 Pa. 114, 123, 870 A.2d 766, 771 (2005); Daniel v. Wyeth Pharmaceuticals, Inc., 15 A.3d 909, 929 (Pa. Super. 2011). In Pennsylvania, “a punitive damages claim must be supported by evidence sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that (2) [s]he acted, or failed to act, as the case may be, in conscious disregard of that risk.” Hutchison, supra, at 124, 870 A.2d at 772; Daniel, supra.

“[I]t has long been the law in Pennsylvania in ‘fall-down’ cases that the pedestrian has the burden of proving the existence of a defective condition and the knowledge, actual or constructive, of the real estate possessor of the condition prior to the accident.” Kardibin v. Associated Hardware, 284 Pa. Super. 586, 592, 426 A.2d 649, 652 (1981); Jones v. Giant Food Stores, LLC, 2011 WL 6003193 at * 3 (M.D. Pa. 2011). In proper circumstances, a plaintiff may attempt to prove the existence of a dangerous condition or the defendant’s notice of that condition through “other accident” evidence. See, Stormer v. Alberts Construction Company, 401 Pa. 461, 466, 165 A.2d 87, 89 (1960) (evidence of similar accidents may “be admissible to prove constructive notice of a defective or dangerous condition and the likelihood of injury.”); Hutchinson v. Penske Truck Leasing Company, 876 A.2d 978, 983 (Pa. Super. 2005) (“For ‘other accident’ evidence to be admissible, the plaintiff must first establish that there is a ‘substantial similarity of conditions’ between the other accidents and the accident that injured the plaintiff.”), aff’d, 592 Pa. 38, 922 A.2d 890 (2007); Vernon v. Stash, 367 Pa. Super. 36, 47, 532 A.2d 441, 446 (1987) (“evidence of prior accidents or occurrences is generally relevant to show the existence of a defect or dangerous condition or to demonstrate knowledge on the part of the defendant that the hazard existed.”). To be relevant and admissible, the “other accident” must have occurred prior to the incident at issue, must be sufficiently similar to the incident involving the plaintiff, and must have taken place under sufficiently similar circumstances. Valentine v. Acme Markets, Inc., 455 Pa. Super. 256, 266, 687 A.2d 1157, 1162 (1997); Walsh v. Generations Management Services, LLC, 2011 WL 1131485 at * 4 (Lacka. Co. 2011). Evidence of other incidents “that occur subsequent to that upon which the litigation is brought is not admissible to show knowledge of a condition prior to an [incident].” Hoffmaster v. County of Allegheny, 121 Pa. Cmwlth 266, 276-277, 550 A.2d 1023, 1028 (1988), app. denied, 522 Pa. 606, 562 A.2d 828 (1989); Walsh, supra at * 4-5 (sustaining objection to discovery request seeking information concerning falls which occurred after the date of the plaintiff’s fall and holding that “[subsequent falls cannot demonstrate prior notice or knowledge of a dangerous condition.”); Gurevitz v. Piczon, 42 D. & C. 4th 308, 324 (Lacka. Co. 1999) (“...any reference to Cornfield’s surgeries is not relevant to Gurevitz’s corporate liability claim since Cornfield’s operative procedures post date Gurevitz’s surgeries. How could CMC possibly have been expected to have had actual or constructive notice of a potential problem involving Dr. Piczon’s surgical abilities at the time of Gurevitz’s procedures on August 24, 1993 and November 18, 1993, based upon Cornfield’s spinal procedures that were later performed on February 10, 1994 and March 11, 1994?”).

To the extent that Mr. Laird, Mr. DiVizio or any other PAWC representative is designated as a managing agent of PAWC pursuant to Pa. R.C.P. 4007.1 (e) or 4020(a)(2), their testimony regarding the hazards presented by protruding water valves will be admissible as to the relevant standard of care, provided that those witnesses confirm that they held those opinions prior to the date of Millan’s fall on October 23, 2001. However, any reference to falls or other dangerous conditions which postdate October 23, 2001 will be precluded since they are not probative of the existence of an allegedly dangerous condition in front of Millan’s residence or PAWC’s actual or constructive notice of such a condition. See, Hoffmaster, supra; Walsh, supra; Gurevitz, supra. Consequently, the deposition testimony cited by Millan in support of Millan’s claim for punitive damages will not be admissible at trial to prove the occurrence of subsequent falls in different locations or PAWC’s actions with regard to those later falls.

Millan has not identified any deposition testimony or other evidence which suggests that PAWC or Linde had a subjective appreciation of the risk of harm to which Millan was allegedly exposed in front of her residence and that PAWC or Linde acted or failed to act in conscious disregard of that risk. But see, Hutchison, 582 Pa. at 124, 870 A.2d at 772. Proof of ordinary negligence, or even gross negligence, is insufficient to support a claim for punitive damages. Phillips, 584 Pa. at 189, 883 A.2d at 445. Absent some arguable proof of a subjective appreciation of Millan’s risk of harm and a conscious disregard of that risk by PAWC or Linde, Millan has not identified a factual or legal basis for granting Millan leave of court to amend the complaint to include a claim for punitive damages. See, Wagner, supra (denying request to amend negligence complaint to include claim for punitive damages shortly before trial).

In addition to lacking requisite factual support, Millan’s motion to amend is also untimely. Millan’s original complaint merely alleged ordinary negligence on the part of PAWC and Linde and charged them with failing to exercise reasonable care, failing to conduct periodic inspections, failing to post warning signs, and failing to employ prudent personnel. (Docket entry no. 5, ¶¶8-10). Millan does not aver recklessness in the complaint, nor does she allege facts remotely indicative of wanton, willful or reckless conduct. If a timely filed complaint contains allegations of deliberate and willful conduct, albeit without affirmatively demanding punitive damages, the plaintiff may thereafter amend the complaint to include a claim for punitive damages based upon the facts previously alleged in the complaint. See, Shanks v. Alderson, 399 Pa. Super. 485, 491, 582 A.2d 883, 886 (1990), app. denied, 528 Pa. 638, 598 A.2d 994 (1991). However, if the original complaint simply alleges negligence and the plaintiff later seeks to amend the complaint to aver reckless indifference and include a demand for punitive damages after the statute of limitations has expired, the requested amendment is time barred. See, Romah v. Hygienic Sanitation Company, 705 A.2d 841, 858-860 & n. 9 (Pa. Super. 1997) (if plaintiff seeks to amend negligence complaint to include claim for punitive damages based upon gross negligence, the amendment proposes a different theory or kind of negligence and must be filed within two years of discovery of the concealed gross negligence), aff’d, 558 Pa. 378, 737 A.2d 249 (1999); Willett v. Evergreen Homes, Inc., 407 Pa. Super. 141, 149-150, 595 A.2d 164, 168-169 (1991) (since original complaint alleged no more than ordinary negligence, proposed amendment to allege reckless indifference and to demand punitive damages was barred by two year statute of limitations), app. denied, 529 Pa. 623, 600 A.2d 539 (1991); Fasula v. Hijazi, 44 D. & C. 4th 553, 561 (Lacka. Co. 1999) (noting that plaintiff could not amend complaint to seek recovery of punitive damages more than two years beyond date of decedent’s death if averments of initial complaint merely alleged ordinary negligence). Since Millan’s fall occurred on October 23, 2001 and the complaint alleges ordinary negligence on the part of PAWC and Linde, her request to amend the complaint more than ten years after her fall to assert a claim for punitive damages is clearly time barred. See, Romah, supra; Willett, supra. Accordingly, for substantive and procedural reasons, Millan’s motion to amend will be denied.

And now, January 26, 2012, upon consideration of “plaintiffs’ motion for leave to amend complaint to include claim for punitive damages” and the defendants’ responses thereto, and based upon the reasoning set forth above, it is hereby ordered and decreed that “plaintiffs’ motion for leave to amend complaint to include claim for punitive damages” is denied.