author: MINORA, J.,

text:
    Santarelli v. National Book Company Inc.

      C.P. of Lackawanna County,
    no. 96 CIV 988.

      Peter G. Loftus, for plaintiff.

      Howard A. Rothenberg, for defendant.
    February 18, 1999
   MINORA, J.,

This action comes before the court by way of two individual defendants’ motion for partial summary judgment. In the current case, plaintiff identified five defendants, of which three are corporations and the remaining two are individuals. Plaintiff’s complaint against the above five defendants alleges three counts: (1) sex discrimination in employment; (2) age discrimination in employment; and (3) violation of the Equal Pay Act. Plaintiff, an adult female, alleges that while she was employed by defendant corporations, said corporations and the two individual defendants, acting in their capacity as managerial and/or supervisory personnel, discriminated against her based on her age and sex.

Instantly, the two individual defendants, who acted as plaintiff’s manager and/or supervisor, maintain that they may not be sued either in their individual or official capacities. Conversely, plaintiff opposes this motion and alleges under the Pennsylvania Human Relations Act (PHRA) that both individual defendants can be held liable based on their positions. An argument was held before this court on November 19,1998, and the parties have briefed their respective positions. This memorandum and order follow.

FACTS

Joan J. Santarelli, plaintiff, was bom on July 20, 1942 and at the time of commencement of this action was 53 years old. On or about September 9, 1991, plaintiff was hired on a temporary basis by the defendant corporations. In her complaint, plaintiff has identified the following three corporations as defendants: (1) National Book Company Inc., as a subsidiary of Thames & Hudson; (2) W.W. Norton & Co. Inc., owner of National; and (3) Thames & Hudson Inc., as the parent company of National.

Subsequently, plaintiff agreed to stipulate to the dismissal of T & H as a defendant. The basis for plaintiff’s stipulation was that plaintiff did not contest T & H’s assertion that the only affiliation T & H had with National was a buyer/seller relationship. Furthermore, T & H stated that they are customers of National and not their parent company. In light of this assertion, plaintiff realized that T & H, as a customer and not a parent company, could not be held liable in this present case. Due to this stipulation, this court will not further address T & H as defendants. However, both National and Norton continue to be defendants.

Additionally, plaintiff lists the following two individual defendants: (1) Michael Charnogursky; and (2) John Errico. Plaintiff avers that Charnogursky and Errico are supervisors of both National and Norton, and their positions enable them to hire and fire employees and to develop policy and procedure for said corporations.

Plaintiff avers that she was informed that if she worked eight hours a day for one year, she would become a full-time employee. Nonetheless, plaintiff alleges that in her eleventh month of employment, Charnogursky and Errico notified her that she would not be placed on full-time status. Plaintiff contends that Charnogursky and Errico explained the reason that she was ineligible for a full-time position was because she had a relative, Carol Jacobino, her husband’s cousin, employed by the corporations. Plaintiff acknowledges that in or about 1983, National adopted a policy wherein an applicant would not be considered for full-time positions if he/she had a relative working for the company. Despite the above-cited policy, plaintiff maintains that National has numerous exceptions that apply to this policy. For example, plaintiff’s complaint identifies such exceptions as: (1) relatives working for the company prior to the adoption of the policy; (2) individuals who became related while employed by the company; and (3) one individual who the company “inadvertently hired on a permanent basis, in 1988, because it was not known that he had a relative employed by National.” Additionally, plaintiff names eight other employees in permanent positions hired by National who do not fit within any of the policy exceptions.

In addition, plaintiff alleges that temporary male employees were given back pay in a labor dispute; however, plaintiff received nothing. Plaintiff also contends that several male employees and other employees under the age of 40 were hired on a full-time basis. Conversely, plaintiff avers that two women under the age of 40, who had worked 40 hours a week for one year, have not been hired as full-time employees. Plaintiff alleges that she is being discriminated against because of her age and sex, and has been denied full-time employment benefits, seniority, vacation, equal pay and advancement on a continual day-to-day basis.

On February 22, 1996, plaintiff filed a complaint in this matter. Defendants on May 1, 1996 filed an answer denying the allegations of the complaint and raised, as new matter, the fact that the individual defendants (Chamogursky and Errico) could not be responsible as supervisors or management. In addition, defendant T & H denied that it was in any way related to defendant National. On May 29, 1996, plaintiff responded with an answer to the new matter. On November 25, 1998, defendants (Chamogursky, Errico and T & H) filed a supplemental brief .in support motion for partial summary judgment. Therefore, this matter is now ripe for decision.

DISCUSSION

The Pennsylvania Superior Court has held that the relevant elements necessary to permit summary judgment are as follows: “First, the pleadings, depositions, answers to interrogatories, admissions on file, together with any affidavits, must demonstrate that there exists no genuine issue of fact. Second, the moving party must be entitled to judgment as a matter of law.” Janson v. Cozen and O’Connor, 450 Pa. Super. 415, 423, 676 A.2d 242, 246 (1996).

The court must also examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Summary judgment is appropriate only in those cases which are free from doubt. Pennsylvania State University v. University of Orthopedics, 706 A.2d 863, 867 (Pa. Super. 1998).

Effective July 1, 1996, Rules of Civil Procedure 1035.1 through 1035.5 governing summary judgment replaced former Rule 1035. The essence of the revision set forth in Rule 1035.2 is that the motion for summary judgment now encompasses two concepts: first, the absence of a dispute as to any material fact set forth in Pennsylvania State University, supra, and second, the absence of evidence sufficient to permit a jury to find a fact essential to a cause of action or a defense. Rule 1035.2 is explicit in authorizing a motion based upon a record, which is insufficient to sustain a prima facie case, which in a jury trial would require the issues to be submitted to a jury.

Applying these Rules of Civil Procedure to the case at bar, we shall proceed to the plaintiff’s motion for partial summary judgment.

The only issue currently before this court is whether or not the individual defendants (Charnogursky and Errico) can be held liable under the PHRA in their individual or official capacity in managerial and/or supervisory positions.

In making a decision on this issue, Charnogursky and Errico assert that courts look to the interpretation of title VII of the Civil Rights Act of 1964 as amended in 1991 when analyzing the PHRA. By following title VII, Charnogursky and Errico contend that courts have concluded that there can be no personal liability for supervisors or management. Likewise, Charnogursky and Errico maintain that because courts follow title VII’s analysis when interpreting the PHRA, it also does not allow individual liability to extend to managers and/or supervisors.

Conversely, plaintiff alleges that Charnogursky and Errico’s argument is based on the 1991 amendment to the Civil Rights Act of 1964. Further, plaintiff avers that the Pennsylvania Legislature has not followed the amendment and, subsequently, the PHRA in the terms and conditions for discrimination, follows the original title VII and Age Discrimination in Employment Act (ADEA) interpretations. Plaintiff concludes that under the original title VII and ADEA, individual managers and/or supervisors could be held liable and, therefore, claims based on PHRA also should hold these individuals liable.

Pennsylvania law provides that when “interpreting the PHRA, Pennsylvania courts may look to federal court decisions interpreting title VII . . . .” Hoy v. Angelone, 456 Pa. Super. 596, 605, 691 A.2d 476, 480 (1997). Likewise, Pennsylvania courts may also consider federal interpretation of the ADEA in deciding claims under the PHRA. Kelly v. Drexel University, 94 F.3d 102, 105 (3d Cir. 1996). Although Pennsylvania courts may follow federal courts’ interpretation of title VII when deciding PHRA claims, this is not mandatory. Specifically, the Pennsylvania Commonwealth Court has held that “the U.S. Supreme Court’s construction of title VII does not require our court to construe the Pennsylvania Human Relations Act in the same fashion.” Harrisburg School District v. Commonwealth, Pennsylvania Human Relations Commission, 77 Pa. Commw. 594, 599, 466 A.2d 760, 763 (1983).

In making our decision in the case at bar, we note that Pennsylvania law has not yet resolved this issue. Therefore, we will begin our analysis by examining whether an individual may be held liable under either title VII or the ADEA. We are mindful that federal courts’ interpretations of the above two statutes are not binding on this court; instead we merely seek guidance in their respective analysis.

Under the ADEA, an employee may not be shielded from individual liability as an employer’s agent in all circumstances, but an employee is shielded with respect to personnel decisions of plainly delegable character. Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510 (4th Cir. 1994). In addition, the Birkbeck court held that the “ADEA limits civil liability to the employer and ... an employee, is not a proper defendant.” Id. Despite the Birkbeck court’s finding, other federal courts have found individual liability under the ADEA. House v. Cannon Mills Co., 713 F. Supp. 159, 160-62 (M.D.N.C. 1988). This court has found that federal courts have differing opinions as to whether or not an individual can be held liable under the ADEA, and, therefore, we find no guidance in relying on the ADEA’s analysis in the present case.

We now turn our attention to federal analysis of individual liability under title VII. Here, we find that the law is clear and that the Third Circuit has held that individual employees cannot be held liable under title VII. Dici v. Commonwealth of Pennsylvania, 91 F.3d 542, 552 (3d Cir. 1996). In addition, the United States District Court for the Eastern District of Pennsylvania has stated that the “relief granted under title VII is against the employer, not individual employees whose actions constituted a violation of the Act.” Goodwin v. Seven Up Bottling Co. of Philadelphia, 1996 W.L. 601683, *3 (E.D. Pa. 1996). The Goodwin court relied on the Did court cited above, when making its determination that the plaintiff as a matter of law failed to state a title VII claim, thereby dismissing the individual defendants. Id. Based on the aforementioned cases, we conclude that there is no individual liability under title VII. Despite our holding, we must now address the issue of individual liability under the PHRA.

To begin our analysis, we look to the pertinent part of the PHRA which makes it unlawful “[f]or any person, employer, employment agency or labor organization or employe, to aid, abet, incite, compel or coerce” in certain discriminatory practices. 43 P.S. §955(d). (emphasis added) Those discriminatory practices specifically identified in this statute include both age and sex. 43 P.S. §955(a). The definitional section of the PHRA defines the term “person” as including “one or more individuals,” as well as any owner, manager, salesman or employee. 43 P.S. §954(a).

As previously stated, the court believes this is a case of first impression in Pennsylvania; however, this court has found two recent federal cases on point. Both cases were decided by the United States District Court for the Eastern District of Pennsylvania. First, in July of 1998, this district court stated that “title VII, the ADA, ADEA and PHRA are all to be interpreted consistently with one another such that individual employees are not to be held liable under these Acts unless a supervisory employee can be shown to have aided and abetted the employer’s discriminatory actions in violation of the PHRA.” Cohen v. Temple Physicians Inc., 11 F. Supp.2d 733, 737 (E.D. Pa. 1998). Second, as recent as October of 1998, this same court maintained that “the PHRA differs from title VII,” because under the PHRA §955(e) “an individual supervisory employee can be held liable under an aiding and abetting/accomplice liability theory ... for his own direct acts of discrimination or for his failure to take action to prevent further discrimination by an employee under supervision.” Davis v. Levy, Angstreich, Finney, Baldante, 20 F. Supp.2d 885, 887 (E.D. Pa. 1998).

The Cohen court dismissed the individual defendants because it concluded that the plaintiff’s complaint was devoid of any allegations that these defendants aided, abetted, incited, compelled or coerced to discriminate against the plaintiff. Cohen, supra at 737. Similarly, the Davis court focused its attention on the aforementioned factors in determining whether to dismiss the complaint against the individual defendants. Davis, supra at 887. However, the Davis court denied the individual defendants’ motion to dismiss the PHRA claim by concluding that the plaintiff sufficiently pled that these defendants “aided, abetted, incited, compelled and coerced unlawful and intentional discrimination against the plaintiff.” Id.

This court finds guidance from the various federal courts analysis of the PHRA and we agree that the PHRA §955(e) is designed to hold individuals liable for a violation of this Act. We also concur that in order to hold an individual liable, the plaintiff’s complaint must allege that the defendant aided, abetted, incited, compelled or coerced a discriminatory practice. Upon thorough review of plaintiff’s complaint, we find no allegation that defendants Errico and Charnogursky in any way aided, abetted, incited, compelled or coerced the alleged discrimination against plaintiff. Therefore, defendants Errico and Charnogursky’s motion for partial summary judgment is granted, but we will allow plaintiff 20 days to amend her complaint or proceed in the alternative without said claim against Errico and Charnogursky.

The basis for our decision to permit plaintiff to amend her complaint is that, as noted above, this is a case of first impression. We find that it would be inequitable to dismiss plaintiff’s claim based on this heretofore unadjudicated matter without allowing the opportunity for an appropriate amendment by plaintiff if she deems the amendment applicable. Allowing an amendment would not unduly prejudice Errico and Charnogursky. In making our determination, we seek guidance from the Pennsylvania Rules of Civil Procedure which states in pertinent part as follows: “[A] party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading.” Pa.R.C.P. 1033. (emphasis added) Additionally, “[T]he rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable.” Pa.R.C.P. 126. (emphasis added)

“With these two rules serving as our focal point, we have examined the relevant case law. It is well-settled that the decision to grant or deny permission to amend a pleading is a matter of judicial discretion.” Gutierrez v. Pennsylvania Gas & Water Co., 352 Pa. Super. 282, 285-86, 507 A.2d 1230, 1232 (1986). “Amendments should be allowed with great liberality at any stage of the case unless they violate the law or prejudice of the opposing party.” Id. Moreover, a “court may, on its own motion, permit or require amendment of a complaint or other pleading.” Sullivan v. Allegheny Ford Truck Sales, 283 Pa. Super. 351, 358, 423 A.2d 1292, 1295 (1980).

We are bound by the Pennsylvania Supreme Court’s holding that when an “appellants’ proposed amendment does not change the original cause of action, but rather merely amplifies it, the amendment would not result in any prejudice to appellee.” Connor v. Allegheny General Hospital, 501 Pa. 306, 310, 461 A.2d 600, 602 (1983). Additionally, the Pennsylvania Supreme Court maintained that it is an abuse of discretion for a trial court to refuse a party to amend their complaint when such an amendment would not prejudice the opposing party. Id. While we raise the issue of amendment sua sponte, we find these principles of law to be applicable in the interest of justice.

Therefore, we find that the appropriate amendment to plaintiff’s complaint would not change their original cause of action, but merely amplify it, and, as such, we are allowing plaintiff the opportunity to amend said complaint if she so chooses. An appropriate order follows.

ORDER

And now, to wit February 18, 1999, it is hereby ordered that the individual defendants Michael Charnogursky and John Errico’s motion for partial summary judgment is hereby granted with the provision that plaintiff is allowed 20 days to amend her complaint or in the alternative proceed without a claim against Charnogursky and Errico. The parties are to proceed in a manner consistent with this opinion and order.


source: Caselaw Access Project

author: CONWAY, J.,

license: Public Domain

text:
    Fasig v. Security-Connecticut Life Ins. Co.

      C.P. of Wayne County,
    no. 176-Civil-1998.

      Mark R. Zimmer, for plaintiff.

      Arthur H. Rainey, for defendant Security Connecticut Life Ins. Co.

      Richard K. Hodges, for defendants Paciotti Ins. Inc. and Virgil Paciotti, individually.
    March 8, 1999
   CONWAY, J.,

Presently before the court are the defendants’ motions for summary judgment. Pa.R.C.P. 1035.2 states:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law

“(1) 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

“(2) 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.”

The standards applicable to any motion for summary judgment are:

(1) When ruling on a motion for summary judgment, a court must accept as true all well-pleaded facts and consider any admissions of record, but must resolve any doubts as to the existence of a genuine issue of a material fact against the moving party. Kotwasinski v. Rasner, 436 Pa. 32, 258 A.2d 865 (1969); Prince v. Pavoni, 225 Pa. Super. 286, 302 A. 2d 452 (1973); Schacter v. Albert, 212 Pa. Super. 58, 239 A.2d 841(1968). We must view the record in the light most favorable to the non-moving party and give the non-moving party the benefit of all reasonable inferences. Schacter v. Albert, supra. The burden is on the non-moving party to show the existence of a genuine issue of material fact. He is not required to prove the fact itself. Prince v. Pavoni, supra. Penn Center House Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989).

The court’s analysis of the motions will utilize these standards. All references to a transcript pertain to the deposition testimony of the plaintiff on February 5, 1999.

In the spring of 1985, Charles Fasig met with Virgil Paciotti Jr. to discuss purchasing a life insurance policy. Paciotti and his agency were licensed and authorized to conduct business in Pennsylvania. They held themselves out and represented themselves to be specialists and experts in the field of life insurance. Fasig told Paciotti that he wished to purchase life insurance in the amount of $100,000. The payment of the premium would be in one lump sum. The policy would be fully paid upon the date of issuance of the policy. Paciotti agreed and contracted to obtain insurance based upon Fasig’s request.

On May 23, 1985, Paciotti obtained a policy issued by defendant Security-Connecticut to plaintiff. Plaintiff paid the one-time premium in the amount of $9,000 when the actual physical delivery of the policy took place on June 7, 1985.

When the policy was delivered, Paciotti told Fasig that the policy he was buying was a fully paid life insurance policy and that Fasig would be covered for the rest of his life. Mr. Fasig was alarmed by information showing that the $9,000 premium was only “guaranteed” to pay for the policy for a period of 12 years. He discussed it with Paciotti at that time. (N.T. 55-58, 117-18.) Paciotti told plaintiff that he could ignore this information because it “did not pertain” to him. Plaintiff relied on these assurances and was thereby led to believe that the policy satisfied all of his requirements as previously agreed to by Paciotti.

In May of 1997, plaintiff received a document from Security-Connecticut which indicated that the coverage contained in his life insurance policy would only remain in force until May 23, 2002 (based on current interest, cost of insurance rates and expense charges) or November 23, 2004 (based on current interest, cost of insurance rates and expense charges). Plaintiff contacted Security-Connecticut at that time and was advised that in order to maintain coverage until age 69, he would need to pay a single premium payment of $5,000. If he wished to maintain coverage until age 73, he would need to make a single premium payment of $10,000. Because of plaintiff’s reliance on the assurances given him by Paciotti at the time of the purchase of the life insurance policy, he did not discover that there were assertions to the contrary contained within the policy.

Since the issuance of the policy, plaintiff has become uninsurable because of various medical conditions, including hypertension, anxiety and a rare lung disease known as langerlaus cell granulomatosis.

The motion for summary judgment filed by Security-Connecticut Life Insurance Co. is addressed to Count IV of the complaint, because that count contains the only claim alleged against the defendant company. The motion for summary judgment filed by Paciotti Insurance Inc. and Virgil Paciotti Jr., individually, pertains to the remainder of the complaint.

Specifically, plaintiff’s Count I against Virgil Paciotti Jr., individually, alleges a breach of contract in that Virgil Paciotti Jr. failed to procure a policy of life insurance with a benefit of $100,000 in exchange for a one-time payment of a premium in the amount of $9,000; Count II alleges the liability of Paciotti Insurance Agency Inc. premised on the doctrine of respondeat superior and predicated upon the breach of contract allegedly committed by Virgil Paciotti Jr.; and

Count III of plaintiff’s complaint alleges a cause of action sounding in negligence against defendants Paciotti predicated on their breach of duty to exercise reasonable skill, care and diligence in procuring the insurance coverage for the one-time premium payment of $9,000, as defendants allegedly assured plaintiff they would obtain.

The first issue is whether or not the defendants are entitled to summary judgment because of the alleged expiration of the statutes of limitation concerning plaintiff’s causes of action in breach of contract and negligence. Both motions espouse this argument based upon the applicable statute of limitations.

Pursuant to 42 Pa.C.S. §5524, the statute of limitations regarding a cause of action in negligence is two years. The court finds a very recent decision by the Pennsylvania Supreme Court controlling as to this issue. The relevant language is:

“ ‘[T]he statute of limitations begins to run as soon as the right to . .. maintain a suit arises; lack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations.’ . . . The statute of limitations requires aggrieved individuals to bring their claims within a certain time of the injury, so that the passage of time does not damage the defendant’s ability to adequately defend against claims made. As we have noted elsewhere, the statute of limitations ‘supplies] the place of evidence lost or impaired by lapse of time, by raising a presumption which renders proof unnecessary . . . .’

“The ‘discovery rule,’ so-called, is an exception to the requirement that a complaining party must file suit within the statutory period. The discovery rule provides that where the existence of the injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the prescribed statutory period, the limitations period does not begin to run until the discovery of the injury is reasonably possible. . . .

“As we have stated before, the rule is an equitable one, which excludes the period of time during which the injured party is reasonably unaware that an injury has been sustained so that people in that class have essentially the same rights as those who suffer an immediately ascertainable injury.... Although the purpose of this rule is ‘to mitigate, in worthy cases, the harshness of an absolute and rigid period of limitations,’ it is also true that the rule ‘cannot be applied so loosely as to nullify the purpose for which a statute of limitations exists.’ . . .

“The party seeking to invoke the discovery rule bears the burden of establishing the inability to know of the injury despite the exercise of reasonable diligence. . . . The standard of reasonable diligence is objective, not subjective. It is not a standard of reasonable diligence unique to a particular plaintiff, but instead, a standard of reasonable diligence as applied, to a ‘reasonable, person.’ ” Dalrymple v. Brown, 549 Pa. 217, 224, 701 A.2d 164, 167 (1997). (citations omitted) (emphasis in original)

An examination of the record in the light most favorable to the plaintiff reveals that he failed to exercise reasonable diligence, and his failure to do so bars his cause of action in negligence. The court’s review of the record revealed:

(a) In 1976, the plaintiff started a home construction business. (N.T. 145);
(b) The plaintiff said the following about the contract used in his business: “I know it back and forth.” (N.T. 16);
(c) The plaintiff testified to the following about the contracts utilized in his business:
“A. My construction contracts?
“Q. Your construction contracts. And sometimes purchasers would mark those, their lawyers or they would mark them up themselves, right?
“A. They would change it.
“Q. They would change it. Before they, before you sent them a contract, you already had some sort of oral negotiations with these people; is that right; you had already talked to them about the deal?
“A. Yeah.
“Q. You already had an idea in your head of what the deal was, right?
“A. Yes. They normally took the specifications and the contract with them.
“Q. Okay. If they sent the contract back marked up, why was it important for you to go through it?
“A. To see if there was any changes.
“Q. Okay. Why would the changes be important?
“A. Because some people lie like hell and cheat like hell.” (N.T. 104-105);

(d) The plaintiff indicated he was experienced regarding investments and life insurance and understood the risks. (N.T. 17, 25-28);

(e) The policy states on its cover in bold, capital letters, Important — Read Your Policy Carefully (exhibit A at 1);

(f) The plaintiff testified he put the policy in the safety deposit box and did not read it until he received a letter from defendant company informing him his policy was going to expire. (N.T. 64, 65);

(g) The defendant company mailed the plaintiff annual reports (exhibit F) from 1986-1996 which the plaintiff placed in the trash. (N.T. 113);

(h) These annual reports each contained an explanation of guaranteed and current interest rates. (N.T., exhibits 3-15); and

(i) The annual report dated March 25,1987 contained an additional notice bearing even date indicating maturity of the policy and the guaranteed rate and applicable current rate of interest, the former indicating expiry of the policy 24 years, 11 months under current assumptions and 10 years three months under guaranteed assumptions, if no further premiums were to be paid. (N.T., exhibit 2.)

Clearly, the plaintiff failed to exercise reasonable diligence. If the plaintiff had exercised even a small degree of effort, the exact nature of his policy would have been apparent.

The statute of limitations for causes of action sounding in contract breach is four years. 42 Pa.C.S. §5525. The plaintiff must exercise reasonable diligence. Romeo & Sons Inc. v. Yezbak & Son Inc., 539 Pa. 390, 394, 652 A.2d 830, 832 (1995). Since the court has concluded the plaintiff failed to exercise reasonable diligence, his cause of action for breach of contract cannot proceed.

All defendants have also raised an issue pertaining to the economic loss doctrine. “The general rule of law is that economic losses may not be recovered in tort (negligence) absent physical injury or property damage.” Spivack v. Berks Ridge Corp. Inc., 402 Pa. Super. 73, 78, 586 A.2d 402, 405 (1990). (citations omitted) In other words, “[pjurely economical loss, when not accompanied with or occasioned by injury, is considered beyond the scope of recovery even if a direct result of the negligent act.” Margolis v. Jackson, 375 Pa. Super. 182, 185, 543 A.2d 1238, 1240 (1988). (citations omitted) By denying the preliminary objections in the case sub judice, the court allowed the plaintiff the opportunity to overcome this doctrine.

However, the review of the record, especially the plaintiff’s deposition, revealed that the plaintiff’s negligence claims are barred by this doctrine. The plaintiff has suffered strictly economic loss as a result of the defendants’ alleged conduct.

The final issue concerns the plaintiff’s misrepresentation and estoppel claims against the defendant company. The court finds the misrepresentation claims barred by the two-year statute of limitations of 42 Pa.C.S. §5524. The court finds the estoppel claims barred by the four-year statute of limitations of 42 Pa.C.S. §5525(8).

Further, these misrepresentations and estoppel claims allege he relied upon oral statements by the defendant, Paciotti. (Paragraph 27 of the complaint.) To support a claim for either intentional misrepresentation or negligent misrepresentation, there must be justifiable reliance on the misrepresentation. Gibbs v. Ernst, 538 Pa. 193, 207, 210, 647 A.2d 882, 889, 890 (1994). And, as this court stated in its opinion in the case sub judice of December 10, 1998, a claim for estoppel requires an examination of the plaintiff’s reasonable expectation. Straup v. Times Herald, 283 Pa. Super. 58, 71, 423 A.2d 713, 720 (1980).

At the time the December 10, 1998 opinion was issued, it was unclear what the reasonable expectation of the plaintiff was. Therefore, the court denied the defendants’ preliminary objections. However, the court’s examination of the record reveals that it was not reasonable for the plaintiff to rely on defendant Paciotti’s alleged misrepresentations and ignore the overwhelming amount of contradictory information which was supplied to him.

Regarding the final issue of the plaintiff’s negligent conduct, the court finds that the comparative negligence statute, 42 Pa.C.S. §7102, is not applicable. Instead, the doctrine of contributory negligence is applicable. Although the court agrees with the plaintiff’s position that courts should find contributory negligence on the part of a plaintiff only in cases so clear that there is no room for fair and sensible men to differ on their conclusions from the available date. Just v. Sons of Italy Hall, 240 Pa. Super. 416, 368 A.2d 308 (1976). Fair and sensible men would not differ as to the instant plaintiff’s conduct. It is unnecessary to once again recite the specific grounds of the plaintiff’s contributory negligence. Clearly, the plaintiff’s conduct was a substantial factor in bringing about his alleged harm.

Based on the foregoing, the court enters the following:

ORDER

And now, to wit, March 8, 1999, it is hereby ordered that the motion for summary judgment filed by the defendant, Security-Connecticut Life Insurance Company, is granted.

It is further ordered that the motion for summary judgment filed by the defendants, Paciotti Insurance Inc. and Virgil Paciotti Jr., individually, are granted.

It is also ordered that the complaint filed by the plaintiff, Charles H. Fasig, be dismissed with prejudice.


author: REIBMAN, J.,

text:
    Stefanou v. Pearce
    C.P. of Lehigh County,
    no. 97-C-0707.

      Richard H. Pepper, for plaintiff.

      Timothy T Stevens, for defendant.

      June 7, 1999
   REIBMAN, J.,

Before the court is the motion for summary judgment on behalf of defendant, John T. Pearce, and Patricia L. Stefanou’s opposition thereto.

Patricia L. Stefanou instituted this personal injury action seeking both economic and noneconomic damages after the vehicle she was driving was rear-ended by John T. Pearce’s vehicle on April 1, 1995 in Allentown, Lehigh County. Defendant moves for summary judgment on the ground that plaintiff’s claim for non-economic damages is barred under section 1705 of the Motor Vehicle Financial Responsibility Law because she has not suffered a “serious injury.”

“Summary judgment is properly entered where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law.” Smitley v. Holiday Rambler Corp., 707 A.2d 520, 525 (Pa. Super. 1998). The burden rests squarely on the moving party to prove that no genuine issue of material fact exists. Id. However, an adverse party is required to identify in the response to the summary judgment motion “evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.” Eaddy v. Hamaty, 694 A.2d 639, 643 (Pa. Super. 1997) (citing Pa.R.C.P. 1035.3).

In reviewing a motion for summary judgment, the record is examined in the light most favorable to the non-moving party and all doubts are to be resolved against the moving party. Long v. Yingling, 700 A.2d 508, 512 (Pa. Super. 1997). Moreover, summary judgment should be granted only in cases that are free and clear from doubt. Hoffman v. Brandywine Hospital, 443 Pa. Super. 245, 250, 661 A.2d 397, 399 (1995).

It is undisputed that at the time of the accident plaintiff was covered under an automobile insurance policy issued by Erie Insurance Group. It is also undisputed that under this policy, plaintiff selected a limited tort option pursuant to section 1705 of the MVFRL. Section 1705 states in pertinent part that: “[ejach person who elects the limited tort alternative remains eligible to seek compensation for economic loss sustained in a motor vehicle accident as the consequence of the fault of another person pursuant to applicable law. Unless the injury sustained is a serious injury, each person who is bound by the limited tort election shall be precluded from maintaining an action for any noneconomic loss. . . .”

Section 1702 of the MVFRL defines “serious injury” as “a personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.” Consequently, because plaintiff selected the limited tort option, plaintiff is required to establish that she sustained a “serious injury” before she can recover for noneconomic losses.

The Pennsylvania Supreme Court recently declared that the ultimate determination of whether a plaintiff has suffered a “serious injury” should be made by the jury in all but the clearest of cases. Washington v. Baxter, 553 Pa. 434, 446, 719 A.2d 733, 740 (1998). In Wash ington, the court was faced with a plaintiff who had selected a limited tort option who was seeking non-economic damages for alleged injuries he suffered to his right foot following an automobile accident. In addressing whether or not plaintiff had a “serious injury,” the court adopted the definition of “serious impairment of body function” set forth in the seminal case of Di-Franco v. Pickard, ATI Mich. 32, 37, 398 N.W.2d 896, 900 (1986) which states that:

“The ‘serious impairment of body function’ threshold contains two inquiries:
“(a) What body function, if any, was impaired because of injuries sustained in a motor vehicle accident?
“(b) Was the impairment of the body function serious? The focus of these inquiries is not on the injuries themselves, but on how the injuries affected a particular body function. Generally, medical testimony will be needed to establish the existence, extent, and permanency of the impairment.... In determining whether the impairment was serious, several factors should be considered: the extent of the impairment, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors. An impairment need not be permanent to be serious.” Washington, 553 Pa. at 447, 719 A.2d at 740.

The court applied this definition to the record before it and found summary judgment was proper because it was clear that plaintiff failed to adduce sufficient evidence that he suffered a “serious injury.” The court stated:

“[Cjlearly, it is insufficient for appellant to show that there has been some injury — no matter how minor — in order to avoid the entry of summary judgment against him. Were we to fail to require appellant to adduce evidence that not only was there an injury, but that it was also serious, before allowing him to present his case to the jury, we would make a mockery out of the summary judgment standard. Although appellant has introduced evidence that there is some type of arthritis or coalition in his foot, he has failed to show that this injury has had such an impact on him so that it constitutes a serious injury.” Washington, 553 Pa. at 449, 719 A.2d at 741.

Even viewing the evidence in the light most favorable to plaintiff as the non-moving party, it is clear that reasonable minds could not differ that plaintiff’s injury was not serious and, therefore, summary judgment is proper. Plaintiff did not lose consciousness or suffer any lacerations, abrasions or contusions as a result of the accident. Several hours after the accident, she presented to an area emergency room with complaints of tightness in her back and neck, a strange sensation in her fourth and fifth fingers and an inability to write. X-rays were taken of plaintiff’s neck and back. An emergency room physician rendered a diagnosis of moderate cervical strain, herniated disc, and noted traces of degenerative disc disease.

Plaintiff was later seen by her family physician who confirmed the earlier diagnosis and referred plaintiff to a neurosurgeon, Gerald M. Zurpruk M.D. Dr. Zurpruk performed anterior cervical disc extension at C5-6 on October 9, 1995. Plaintiff was discharged that same day, placed on bed rest for three weeks and underwent physical therapy.

According to the record, the procedure performed by Dr. Zurprulc corrected plaintiff’s herniated disc and plaintiff was discharged from physical therapy after five months. Thereafter, plaintiff began to complain of general aches and pains, headaches, and dizziness. Plaintiff was diagnosed with myofascitis and fibromyalgia.

Plaintiff admits she was not disfigured from the accident. Rather, she contends her injury is serious because she has chronic pain throughout her body which has affected her daily life both at work and at home. However, the record indicates that the injury plaintiff suffered from the accident, the herniated disc, has been corrected and that plaintiff’s current medical complaints are the result of degenerative disc disease which predated the accident as opposed to being the result of the accident. For example, an orthopedic surgeon, Eugene I. Disalvo M.D. opined, to a reasonable degree of medical certainty:

“It is my opinion that [plaintiff’s] present symptoms are a result of degenerative joint and disc disease which antedated the motor vehicle accident on April 1, 1995, and of the fibromyalgia syndrome which is not the result of trauma.

“I do not believe she requires any further treatment as a result of the motor vehicle accident in question although she may require further treatment for the degenerative joint and disc disease and for the fibromyalgia.” See Dr. Disalvo’s report of September 22, 1998 at pp. 4-5.

Further, Richard A. Close M.D. opined, to a reasonable degree of medical certainty:

“In conclusion, the [plaintiff] suffered a herniated disc as the result of her April 1, 1995 MVA. This was surgically corrected and she recovered from this as of February of 1996. Her present problems are as the result of her ongoing degenerative arthritis and her myofascitis, neither of which are related to the alleged MVA.” See Dr. Close’s report of December 5, 1998 at p. 3.

Finally, plaintiff’s own treating physiatrist, Raymond Bruno D.O., opined that plaintiff’s myofascitis is not related to the accident.

In response, plaintiff contends her subjective complaints establish she suffered a serious injury. In addition, plaintiff submitted several letters from various physicians which indicate that plaintiff’s current complaints are the result of the accident and do not predate the accident as defendant suggests.

First, plaintiff’s subjective complaints are insufficient to survive a motion for summary judgment. Plaintiff’s contentions involve issues concerning medical diagnosis and causal connections which clearly require more than just plaintiff’s testimony — they require expert confirmation. Where a cause of a plaintiff’s injury lies beyond the knowledge or expertise of the average layperson, Pennsylvania law requires that the plaintiff present competent expert testimony, based on a reasonable degree of medical certainty. Mitzelfelt v. Kamrin, 526 Pa. 54, 62, 584 A.2d 888, 891 (1990). This principle is based upon the general acknowledgment that the complexities of the human body place questions as to the cause of pain or injury are beyond the knowledge of the average layman. Hamil v. Bashline, 481 Pa. 256, 266-67, 392 A.2d 1280, 1285 (1978).

Next, the letters plaintiff attached to her response to defendant’s motion for summary judgment cannot be considered. As noted by the court in Washington, supra, Pa.R.C.P. 1035, which governs motions for summary judgment, mandates that only competent evidence may be used when either moving for or refuting a motion for summary judgment. Washington, 553 Pa. at 437 n.4, 719 A.2d at 735 n.4. Further, competent evidence comes from depositions, answers to interrogatories, admissions on file and supporting affidavits. Pa.R.C.P. 76 defines an affidavit as: “a statement in writing of a fact or facts, signed by the person making it, that either (1) is sworn to or affirmed before an officer authorized by law to administer oaths, or before a particular officer or individual designated by law as one before whom it may be taken, and officially certified to in the case of an officer under seal of office, or (2) is unsworn and contains a statement that it is made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsifications to authorities; . . . .”

Plaintiff’s letters are not deposition testimony, answers to interrogatories or admissions on file. The letters cannot be considered supporting affidavits because they were neither sworn to nor did they contain a statement pursuant to 18 Pa.C.S. §4904. Moreover, only one of the eight letters contains a medical opinion to a reasonable degree of medical certainty and even this letter fails as an affidavit. Therefore, for the foregoing reasons, defendant’s motion for summary judgment is granted and plaintiff is barred from seeking noneconomic damages.

ORDER

And now, June 7, 1999, upon consideration of the motion for summary judgment on behalf of defendant, John T. Pearce, plaintiff’s opposition thereto, and after oral argument thereon, and for the reasons set forth in the accompanying opinion, it is ordered that said motion is granted.

It is further ordered that plaintiff is barred from seeking noneconomic damages.

      . The statutory language relating to the limited tort option was enacted as part of the 1990 omnibus amendments to the MVFRL. Act 6, 1990, Feb. 7, P.L., no. 6, 75 Pa.C.S. §1701 et seq.

      . The Washington court took an exhaustive look at the Superior Court’s decision of Dodson v. Elvey, 445 Pa. Super. 479, 665 A.2d 1223 (1995), and found that the Superior Court had misinterpreted the intent of the legislature and improperly required the trial judge to make, in all cases, the ultimate decision of whether a plaintiff had suffered a “serious injury.”

      . Myofascitis is defined as “[i]nflammation of a muscle and its facia (a fibrous membrane covering, supporting, and separating muscles).” Fibromyalgia or fibromyositis is defined as “[a] group of common nonspecific illnesses characterized by pain, tenderness, and stiffness of joints, capsules, and adjacent structures.” American Jurisprudence, Proof of Facts, Cyclopedic Medical Dictionary, 1171, 653, 670 (16th ed. 1981).

      . Plaintiff was on notice that her letters were incompetent evidence. However, plaintiff at no time rectified the flaws in her evidence. Had she taken such action, however, the court would be faced with a different situation and would have denied defendant’s motion based on the Supreme Court’s holding in Washington, supra.


author: REILLY, P.J.,

text:
    In re Estate of Frano

      C.P. of Clearfield County,
    no. 95-284.

      Toni M. Cherry, for co-executors.
    March 10, 1999
   REILLY, P.J.,

The above-captioned matter was initiated in this court by Eagle Environmental L.R on March 19, 1997, by the filing of a petition for order directing co-executors to convey real property pursuant to decedent’s contract. The dispute centers around a renewal of an option to purchase a parcel of real property owned by Mary Frano, decedent. The real property subject to the option agreement consists of approximately 148.79 acres located in Washington Township, Jefferson County, and partially in Sandy Township, Clearfield County.

The co-executors maintain that the option agreement was orally revised before the decedent’s death and Eagle failed to comply with the revision, thus eliminating their obligation to convey the property. Eagle contends that it is entitled to judgment in its favor because of the doctrine of res judicata and/or the co-executors have not carried their burden of proving that the written option agreement was orally modified.

Following argument and briefs thereon, this court does herein grant the motion of Eagle for judgment on the pleadings and for specific performance.

The written agreement which created the option for Eagle to purchase decedent’s real property was entered into on August 2, 1990. The original option agreement between Mary Frano and Eagle stated that, “[t]his agreement shall be binding upon the respective heirs, executors, administrators, successors and, to the extent assignable, on the assigns of the parties hereto, it being expressly understood that buyer shall have the right to transfer or assign this agreement....” Option agreement, paragraph 14, pp. 5-6. The option was not exercised by Eagle within the original period. Two subsequent written agreements extended the option periods. The addendum to the option agreement dated January 13, 1995 extended the option period to February 2, 1996 and provided an additional three-month extension if Eagle did not obtain the required permits to operate a sanitary landfill. Eagle had proposed developing a solid waste disposal facility and a rail transfer station on the property. On January 8, 1996, approximately eight months after Mary Frano’s death, Eagle attempted to exercise the option. The property was not conveyed due to the co-executors’ belief that Eagle had not taken the necessary steps concerning the surveys, property descriptions, subdivision application and deed preparation before the expiration of the option, and the co-executors sought judicial determination of their rights in Jefferson County.

Because the proceedings in Jefferson County are significant to this case, they will be discussed in detail. On August 8,1996, a complaint for declaratory judgment was filed in Jefferson County by the co-executors of the estate of Mary Frano, who are also the named individuals in the Clearfield County matter. Eagle Environmental L.P. and Washington Township were the named defendants in the declaratory judgment action. Thereafter, the co-executors filed to remove the case to the United States District Court for the Western District of Pennsylvania. In an order dated January 9,1997, the district court remanded the case to the Court of Common Pleas of Jefferson County.

Meanwhile, preliminary objections were filed by the co-executors in this court. In an order filed May 5, 1997, the Clearfield County proceeding was stayed pending resolution of the Jefferson County case involving the same parties.

In the Jefferson County matter, the co-executors’ complaint requested that the court enter a declaratory judgment stating that the option agreements and subsequent revisions entered into by the parties were terminated. In their second amended complaint, the co-executors sought damages against Eagle for breach of contract. Eagle’s answer and counterclaim contained a prayer for specific performance of the option agreements. The Court of Common Pleas of Jefferson County, civil division, resolved the matter by granting Eagle’s preliminary objection for legal insufficiency (demurrer) and entering judgment for Eagle. Apparently, the co-executors did not appeal, and the parties resumed filing pleadings in the instant matter in March 1997.

The co-executors, who brought the declaratory judgment action in Jefferson County, are now arguing the civil division of that court lacked subject matter jurisdiction. As in the Jefferson County action, their arguments focus on alleged oral modifications and the claim that subdivision of the land will result in leaving them with a lot of substandard size under Washington Township ordinance no. 20.

The Probate, Estates and Fiduciaries Code, 20 Pa.C.S. §101 et seq., sets forth the jurisdiction of the orphans’ court division of the court of common pleas. Specifically, the orphans’ court division is vested with mandatory jurisdiction over matters concerning the administration and distribution of a decedent’s real property and specific performance of an agreement made by a decedent to purchase or sell real property. 20 Pa.C.S. §§711(1) and (13). Where the matter before the court raises substantial questions concerning matters enumerated in section 711 as well as matters not enumerated in that section, the court of common pleas may exercise jurisdiction through either its orphans’ court division or other appropriate division. 20 Pa.C.S. §712(3).

The divisions of the court of common pleas are administrative units and each unit possesses full jurisdiction of the whole court. 42 Pa.C.S. §952. In Baskin & Sears v. Edward J. Boyle Co., 506 Pa. 62, 483 A.2d 1365 (1984), the Supreme Court of the Commonwealth of Pennsylvania stated the following: “[ajbsent a general rule which allocates these matters to a particular division of the court, an administrative judge of one division does not have the authority to refuse to exercise jurisdiction over a matter which is properly before the court. Nor may section 712 reasonably be interpreted to create such authority. The commentary to section 712 indicates that subsection (3) was . . intended to avoid multiple actions in different divisions in a case involving two or more questions, one of which would ordinarily be decided by the orphans’ court division and the other by the trial or family division.’ ” Id. at 67, 483 A.2d at 1367.

The Declaratory Judgment Act, 42 Pa.C.S. §§7531-7541, is broad in scope and provides that the construction of documents, including written contracts, may be the proper subjects of an action for declaratory judgment. New London Oil Co. Inc. v. Ziegler, 336 Pa. Super. 380, 485 A.2d 1131 (1984). Further, “[cjourts of record, within their respective jurisdictions, shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.” 42 Pa.C.S. §7532.

The doctrine of res judicata operates to preclude future suits between the same parties on the same claims after a final judgment has been rendered by a court of competent jurisdiction on the merits. Dempsey v. Cessna Aircraft Co., 439 Pa. Super. 172, 653 A.2d 679 (1995). A conclusive judgment concerning the rights of the parties and their privies “constitutes a bar to a subsequent claim, demand or cause of action and issues determined therein.” Brandschain v. Lieberman, 320 Pa. Super. 10, 15, 466 A.2d 1035, 1038 (1983) (citing Lebeau v. Lebeau, 258 Pa. Super. 519, 525, 393, A.2d 480, 482 (1978)). The elements necessary to support a claim of res judicata include: (1) the identity of the cause of action; (2) the identity of the persons or parties to the action; (3) the identity of the quality or capacity of the parties sued or being sued; and (4) the identity of the thing sued upon. Id. After establishing the concurrence of these four elements, “it must be determined whether the ultimate and controlling issues have been decided in the prior proceeding.” Id.

“Dismissal of an action for failure to state a claim is a final judgment on the merits.” Brown v. Cooney, 296 Pa. Super. 117, 120, 442 A.2d 324, 326 (1982). If the effect of an order is to terminate the action between the parties “by so restricting the pleader with respect to further amendment of the pleading as to virtually put him out of court on the cause of action he seeks to litigate, it is a definitive and final order, and thus, appealable.” Freeze v. Donegal Mutual Insurance Co., 301 Pa. Super. 344, 349, 447 A.2d 999, 1002 (1982) (citing Hudock v. Donegal Mutual Insurance Co., 438 Pa. 272, 264 A.2d 668 (1970); Local No. 163, International Union of Brewery Workers v. Watkins, 417 Pa. 120, 207 A.2d 776 (1965); Sullivan v. Philadelphia, 378 Pa. 648, 107 A.2d 854 (1954)).

In summary, the civil division Court of Common Pleas in Jefferson County had jurisdiction over the declaratory judgment action between these parties. Furthermore, the order which sustained Eagle’s preliminary objections without leave to amend and entered judgment for the defendant, was a final order on the merits.

Review of the pleadings in the present matter reveals that the arguments concerning the alleged oral modifications addressing permits, surveys and subdivision approvals are the same issues that the co-executors presented to the court in Jefferson County. Therefore, this court is dealing with the same litigants and the same arguments which prompted the Jefferson County Court of Common Pleas to rule that the plaintiffs failed to state a cause of action upon which relief could be granted. In addition, this court is faced with the request that the co-executors be ordered to take all steps necessary to convey the optioned property to Eagle without further delay.

Eagle maintains that this court should direct the transfer of the optioned property pursuant to 20 Pa.C.S. §3390, which provides:

“Specific performance of contracts

“(a) Application to court. — If any person makes a legally binding agreement to purchase or sell real or personal estate and dies before its consummation, his personal representative shall have power to consummate it, but if he does not do so, the court, on the application of any party in interest and after such notice and with such security, if any, as it may direct, in its discretion, may order specific performance of the agreement if it would have been enforced specifically had the decedent not died.”

This court is guided by a number of well-established principles concerning requests for specific performance of a contractual obligation. “A decree of specific performance involves the exercise of the equity power and discretion of the court,” which must be exercised in accordance with accepted judicial guidelines. Wagner v. Estate of Rummel, 391 Pa. Super. 555, 561, 571 A.2d 1055, 1058 (1990) (citing Due v. Struckus, 345 Pa. 65, 26 A.2d 897 (1942) and DiPompeo v. Preston, 385 Pa. 512, 123 A.2d 671 (1956)). “A decree of specific performance of a contract is not a right, but is a matter of grace, and will not be granted unless the party seeking such relief is clearly entitled to it.” Wagner at 561, 571 A.2d at 1058 (citing Mrahunec v. Fausti, 385 Pa. 64, 121 A.2d 878 (1956)). Further, “[i]n decreeing or refusing to require specific performance of a contract to convey real property, a great deal depends upon the wise exercise of judicial discretion, in light of all circumstances appearing in the transaction.” Id. (citing Quarture v. C.P. Mayer Brick Co., 363 Pa. 349, 69 A.2d 422 (1949)). Specific performance will not be ordered if to do so would result in hardship or injustice to either of the parties. Wagner at 561, 571 A.2d at 1058. “Moreover, specific performance may only be granted where no adequate remedy at law exists.” Id. (citing Cimina v. Bronich, 517 Pa. 378, 537 A.2d 1355 (1988)).

The parties have had ample time and opportunity to clearly develop the factual underpinnings of this case. The co-executors have failed to sufficiently establish the existence of an oral modification to the option agreements and addendum, which is an issue that was previously litigated. In fashioning a just and proper order, this court has thoroughly examined the option agreement and the addendum, as well as the other documents submitted by the parties. This court is satisfied that specific performance is appropriate in this matter.

Wherefore, the court enters the following:

ORDER

Now, March 10, 1999, in accordance with the foregoing opinion, it is the order of this court that motion for judgment on the pleadings filed on behalf of Eagle Environmental L.P. shall be and is hereby granted and judgment entered in favor of said parties and against the co-executors of the estate of Mary Frano. It is the further order of this court that the request for specific performance filed on behalf of Eagle Environmental L.P. of the option agreement of February 22, 1993, and the addendum -thereto is granted.

      . Subsequent to the execution of the option agreements, it was discovered that a portion of the property subject to the agreements was actually situated in Sandy Township. See the complaint and answer filed in the Jefferson County matter at Clearfield County Orphans’ Court book, vol. 0153 pp. 136, 195.

      . This language was also included in the February 22, 1993 agreement, and was not altered by the addendum of January 13, 1995. The option agreements and addendum are attached to preliminary objection raising pendency of prior action filed on behalf of the co-executors on May 1, 1997, and can be found at OC book, vol. 0153 pp. 144-69.

      . This action was brought in the Court of Common Pleas of Jefferson County, civil division, no. 580-1996.

      . The complaint can be found at vol. 0153 pp. 129-43 of the OC book and was attached to the co-executors’ preliminary objection raising pendency of prior action. See footnote 2.

      . Id. at vol. 0153 p. 190.

      . The second amended complaint was attached to Eagle’s motion for judgment on the pleadings.

      . Eagle’s amended answer, affirmative defenses and counterclaim is found at vol. 0153 pp. 191-204 attached to preliminary objection raising pendency of prior action filed May 1, 1997.

      . The Jefferson County order was filed on March 10, 1998. The order and the preliminary objections were made part of the record in Clearfield County as an attachment to the motion for judgment on the pleadings. The Honorable William L. Henry’s order states:
      “And now, March 9, 1998, after entertaining defendant’s preliminary objections, the court having heard the argument of counsel, and having considered the pleadings and all papers relevant thereto:
      “It is hereby ordered that defendant’s preliminary objection for legal insufficiency (demurrer) to the plaintiffs’ second amended complaint is sustained without leave to amend, and judgment for defendant shall enter, on the grounds that plaintiffs have twice previously amended their complaint, and plaintiffs have failed to state a cause of action upon which relief can be granted.” Id.

      . The subdivision regulations for Washington Township contained in ordinance no. 20 are attached to preliminary objection raising pendency of prior action and can be found at vol. 0153 pp. 170-89 of the orphans’ court book.


author: McVERRY, J.,

text:
    Kress v. Kress
    C.P. of Allegheny County,
    no. FD 95-11325.

      Richard K. Witchko, for plaintiff.

      Roslyn Berger, for defendant.
    February 11, 1999
   McVERRY, J.,

The parties are plaintiff, Frederick A. Kress (Father), and defendant, Kay M. Kress (Mother). Mother filed a complaint for support of herself and the parties’ two minor children, ages 16 and 11. (Tr. 4, 6.) The case was designated complex and heard by a hearing officer, who issued her hearing summary and recommendation on August 4, 1998. Father filed exceptions to the hearing officer’s recommendation. After argument on November 5,1998, this court issued a final order which dismissed all exceptions. Father filed a timely appeal and his matters complained of on appeal are discussed below.

1. DEPRECIATION DEDUCTIONS

Father contends that the hearing officer erred by “allowing items that were properly expensed from the 1997 tax return to be added back” to Father’s net earnings.

Father is a self-employed operator of an automobile service center known as Kress Service Center. (Tr. 32, 63.) Father is also a partner in a real estate business known as Kress Enterprises with his father. (Tr. 32-33.) In calculating Father’s net income, the hearing officer added back to Father’s earnings all of the business depreciation deductions ($19,037) reflected in the 1997 federal income tax return of Kress Service Center and one-half of the business depreciation deductions ($3,868) reflected in the 1997 federal income tax return of Kress Enterprises.

The Superior Court in Cunningham v. Cunningham, 378 Pa. Super. 280, 282, 548 A.2d 611, 613 (1988) held that depreciation deductions should be excluded from an individual’s gross income only where such deductions are reflective of an actual reduction in personal income of the person claiming the deductions. In other words, depreciation deductions should customarily be added back to net income because the party’s true cash flow includes the dollar amounts deducted for depreciation. In the present case, the hearing officer followed the holding of Cunningham, and found that the depreciation deductions claimed by Kress Service Center and one-half of the depreciation deductions claimed by Kress Enterprises should be added back to Father’s net income because Father’s actual cash flow included the amounts which had been deducted for depreciation on the 1997 federal income tax returns of the businesses.

The findings of the hearing officer regarding add-backs to net income were supported by Mother’s expert witness, Thomas Listwak C.P.A., who testified and submitted a report regarding Father’s net income in which he added back the business depreciation deductions. (Exhibit 6; Tr. 33.) Mr. Listwak testified that the depreciation deductions taken by both Kress Service Center (100 percent) and Kress Enterprises (50 percent) should be added back to Father’s income because those amounts represented additional disposable income available to Father. (Tr. 31, 33-34.)

The add-back of $19,037 to Father’s income represents the depreciation deductions taken for equipment, including an emissions analyzer, a truck and a tool box, used in the operation of Kress Service Center. (Tr. 34, 37.) Father argues that the add-back for the emissions analyzer was in error because $14,573 was actually expended for that equipment. However, the expenditure was not made by Father or Kress Service Center, but individually by Father’s father, Alfred Kress, an owner/partner who does not receive any financial distributions or profits from Kress Service Center. (Tr. 37-38, 50-51, 53, 78.) The testimony regarding the purchase of the emissions analyzer by Alfred Kress was unclear as he did not testify that the money was a loan, nor did he present any formal documentation to prove that the purchase was a loan to the business. (Tr. 50, 53.) Father’s accountant, Donald Farkas, testified that the purchase of the emissions analyzer by Alfred Kress was a loan (Tr. 83-85), although he also stated that he was only informed of a $14,000 note verbally, had never seen any written evidence of the note, did not know in fact whether a written note existed, and that “given the testimony of [Alfred] Kress [historically] being very generous to [Father],... he probably wants the [money] back because of the divorce.” (Tr. 85.) After hearing the foregoing testimony, the hearing officer concluded, “[The] fact that [neither Father nor Kress Service Center] didn’t have to advance the cash has no bearing on whether ‘paper expense’ should be added back — in fact, more reason to add back.” (Hearing summary at 2.)

The hearing officer’s determination regarding the remaining depreciation deductions taken by Father through Kress Service Center is supported by the testimony of the accountant witnesses of both parties. Mr. Farkas conceded that the depreciation taken by Father represented a “non-cash deduction” which corroborated the testimony of Mr. Listwak that Father’s depreciation deductions actually represent cash flow to Father. (Tr. 81-82.) Mr. Farkas also testified that his client, Father, took more money from the business than was reported as income on his 1997 tax return. (Tr. 81.) He explained that Father could do this “by having money left over from the previous year and depreciation” and by having personal expenses paid by Kress Service Center. (Tr. 81-82.) The hearing officer’s add-back of $3,868 to Father’s income which represented 50 percent of the real estate depreciation deductions taken by Kress Enterprises was clearly appropriate. (Exhibit 2.) Depreciation deductions for real estate are added back to a person’s income because real estate is an asset which generally appreciates, and therefore the cost of the real estate may be fully recovered upon resale. Labar v. Labar, 434 Pa. Super. 612, 620, 644 A.2d 777, 781 (1994). The Labar court explained that “taking a depreciation expense against [real estate] creates somewhat of a financial fiction by improperly deflating net income of the business.” Id.

Based upon the testimony and evidence presented at the hearing, as well as the applicable case law, this court finds that the hearing officer acted properly in having added back to Father’s net income the business depreciation deductions of Kress Service Center and Kress Enterprises.

2. CASH INCOME

Father claims that the hearing officer erred by imputing cash income to him. Upon review of the record, this court has determined that the hearing officer’s assignment of cash income to Father was appropriate in view of Father’s testimony of having had unreported cash income from repairing automobiles prior to the parties’ separation. (Tr. 70-71.) In addition, the current bank records of Father reflected no evidence of cash withdrawals, nor any checks made payable to cash or to Father directly (Tr. 35) which substantiated Mother’s testimony that Father received cash income from the business during the marriage. (Tr. 6, 12.) Mother explained that Father would often give her cash for spending money and that he paid for their entertainment in cash. (Tr. 6, 21-22, 70.) At the time of the hearing, Father continued to periodically provide cash to the parties’ children. (Tr. 27.)

Mr. Listwak testified that he added back $200 per week, or $10,400 annually as unreported cash allegedly received by Father. (Tr. 34.) Mr. Listwak based this figure on the cash nature of the business of Kress Service Center, as well as Father’s failure to demonstrate any withdrawals of cash from his personal bank accounts through MAC transactions or checks made payable to cash or to himself for cash. (Tr. 34-35.)

The hearing officer rejected Mr. Listwak’s opinion that cash income of $200 per week or $10,400 per year should be imputed to Father. However, the hearing officer determined that “Husband acknowledged some unreported cash in earlier years but testimony does not support Wife’s figure. Instead, $2,000 [per year] is more reasonable.” (Hearing summary at 2.) This finding regarding cash income was properly within the discretion of the hearing officer and is adopted by this court.

3. THE FAIR MARKET RENTAL VALUE OF PROPERTY OCCUPIED SOLELY BY MOTHER

Father asserts that the hearing officer failed to add to Mother’s income one-half of the fair market rental value of the marital residence in which she and the children reside. Initially, it is noteworthy that Father did not raise this issue before the hearing officer. Moreover, he expressly agreed with counsel for Mother that her net income was $799 per month which consisted of $752 from employment and $37.21 from interest income. (Tr. 7, 88.)

Also the issue of potential credit to Father for Mother’s occupancy of the marital residence is more properly addressed at equitable distribution. See e.g., Trembach v. Trembach, 419 Pa. Super. 80, 615 A.2d 33 (1992). Case law reflects that rental value may be awarded at equitable distribution where one party has exclusive occupancy of the marital residence during the pendency of the divorce proceedings. Cohenour v. Cohenour, 696 A.2d 201 (Pa. Super. 1997). (emphasis added) Counsel cites no legal authority to support imputing rental income to an occupying spouse at a support hearing. The hearing officer and this court properly rejected Father’s argument that Mother’s income as calculated at the support hearing should have included one-half of the fair market rental value for her occupancy of the marital residence.

4. INCOME RECEIVED BY MOTHER FROM RENTAL PROPERTY

Father maintains that the hearing officer failed to attribute Mother with the $500 monthly rental income which she received from property owned by Father and his father, Alfred Kress.

The record is clear that Father and Alfred Kress are the owners of rental property located at 194 Butler Street. (Tr. 16, 29, 54, 57.) At the time of the hearing, Father collected the $500 monthly rental income from the Butler Street property, and deposited the money into Mother’s bank account. (Tr. 18, 75.) From this bank account, Mother paid $377.50 toward the parties’ second mortgage on the marital residence, which had been incurred to facilitate the purchase of the Butler Street rental property. (Tr. 16, 29, 57.) Mother also paid for the storage, water and rubbish expenses attendant to this rental property. (Tr. 19.) Given these facts, the monthly rental income received by Mother was offset by her payment of the mortgage and attendant expenses, such that the $500 deposited by Father in Mother’s account each month was not truly income to Mother.

Significantly, the hearing officer altered the parties’ arrangement regarding the Butler Street property by providing in her recommendation that Father “pay the $377.50 monthly mortgage on the marital residence from the $500 monthly rental income he receives.” (Recommendation and hearing summary at 1.) The hearing officer explained that she did not then impute the $500 monthly rental income to Father because he has “to pay the $377.50 mortgage with these funds. Any unused excess [to be] dealt with at equitable distribution.” (Recommendation and hearing summary at 2.)

Consistent with the above, the hearing officer and this court properly calculated Mother’s income exclusive of the rental receipts from the Butler Street property.

The order of this court of November 5, 1998 should be affirmed.

      . Kress Service Center is a partnership comprised of Father and his father, Alfred Kress. Although they are equal ownership partners, Father receives 100 percent of partnership distributions profits.

      . Kress Enterprises appears to be an equal ownership and distribution partnership. (Tr. 51.)

      . Mr. Listwak explained that Father’s business receipts were 20 percent credit card, such that the remaining 80 percent of business income would have to have been either by check or cash. (Tr. 35-36.)

      . Rental credit is not mandatory. Butler v. Butler, 423 Pa. Super. 530, 621 A.2d 659 (1993). The rental value may be adjusted to reflect the occupant’s share of the mortgage payments and related expenses, such as upkeep and maintenance. Hutnik v. Hutnik, 369 Pa. Super. 263, 535 A.2d 151 (1987).


author: DOERR, J.,

text:
    PennDOT v. Zanicky
    C.P. of Butler County,
    no. 98-40230.

      Jeffrey L. Giltenboth, for plaintiff.

      Richard E. Goldinger, for defendant.

      May 5, 1999
   DOERR, J.,

Before the court is Mr. Zanicky’s petition for leave to appeal suspension of operating privileges and for supersedeas.

BRIEF FACTUAL BACKGROUND

On January 17, 1996, Mr. Zanicky was charged with 34 counts of false application, 75 Pa.C.S. §7121, and four counts of altered documents, 75 Pa.C.S. §7122. Mr. Zanicky pleaded guilty to these charges on May 7, 1998 and he was convicted on June 11, 1998. Mr. Zanicky had no prior convictions for these offenses before entry of his plea.

The Department of Transportation sent Mr. Zanicky 38 separate notices dated July 6 and July 8, 1998, each one informing him that his operating privileges were suspended for a period of one year. The suspension would commence on July 26, 1998 and expire in the year 2037.

Mr. Zanicky argues that his operating privileges should not be suspended for the entire period of time but rather for a period of time that corresponds to one continuing episode. Mr. Zanicky further argues that a 38-year suspension is excessive and unjust civil penalty.

LEGAL ANALYSIS

Statutes such as sections 7121 and 7122 of the Vehicle Code “provide for enhanced penalties for individuals with a propensity to commit repeated offenses of the same type.” Compare Frontini v. PennDOT, 527 Pa. 448, 452, 593 A.2d 410, 412 (1991). “Recidivist statutes serve the legitimate public policy of segregating from society those persons with propensities to commit crime, who by their repeated criminal acts demonstrate their unwillingness or inability to be rehabilitated.” Id.

Viewing the provisions of sections 7121, 7122 and 1532A in terms of the Frontini analysis, the court finds that a person must have a prior “conviction” in order to be subject to the enforcement provisions. Until an offender has been convicted, the deterrent effect of the enforcement statute is not activated because only after the first conviction is the offender aware that further offending behavior will lead to more severe penalties.

In addition, the court finds that if the violations arise from one episode, i.e., the same actions on different days, and the offender has no prior convictions, multiple convictions arising from a single criminal episode are a first offense under sections 7121 and 7122. Compare PennDOT v. Hardy, 160 Pa. Commw. 427, 635 A.2d 230 (1993).

The court distinguishes the instant matter from the recent Commonwealth Court holding in Xenakis v. PennDOT, 702 A.2d 572 (Pa. Commw. 1997). Here, the licensee had no prior convictions. In addition, the second and subsequent offenses in Xenakis were characterized as an additional first offense and not as an enhanced term of suspension. The court also finds that the offenses in Xenakis were separate and distant and they did not constitute a single criminal episode.

The court concludes that the appropriate penalty for Mr. Zanicky’s conviction, albeit on 34 counts of false application and four counts of altered documents, was a suspension of one year for a single criminal episode for false application and one year for a single criminal episode of altered documents. Before this plea agreement, Mr. Zanicky had no previous convictions for purposes of sections 7121 and 7122. The intent of the state legislature to punish a true repeating offender would be frustrated if the offender received multiple suspensions without having an opportunity to change his offensive behavior.

ORDER

And now, May 5, 1999, it is hereby ordered and decreed, for the reasons stated in the foregoing memorandum opinion, that John Thomas Zanicky, as a result of his conviction on June 11, 1998 of 34 counts of false application and four counts of altered documents, shall receive a suspension of his operating privileges for a period of two years.


author: TURGEON, J.,

text:
    Vartan Enterprises Inc. v. Susquehanna Township

      C.P. of Dauphin County,
    no. 1497 S 1998.

      Thomas W. Scott, for plaintiffs.

      Robert G. Hanna Jr., for defendants.
    June 3, 1998
   TURGEON, J.,

Defendants seek a protective order precluding plaintiffs from pursuing precomplaint discovery. Plaintiffs Vartan Enterprises Inc. and Vartan Supply Company commenced this current action April 9, 1998 by issuance of a writ of summons on defendants Susquehanna Township, its Board of Commissioners, in both their individual and official capacities, and its zoning officer and building inspector. A few days after commencement of suit, plaintiffs filed interrogatories, request for production of documents and deposition notices on the zoning officer and building inspector, respectively. The notices on all requests include the following:

“Brief Statement To Support Discovery For Purpose Of Preparing A Complaint

“On March 26, 1997, defendant, William E. Garber, issued building permit no. 16875 to Latsha Lumber Company, predecessor to plaintiff, Vartan Supply Company, for the construction of two concrete pads (one 12’ x 400’ and one 4’ x 400’) for precast concrete beams and columns. On May 28,1997, other individual defendants, acting in concert as the Susquehanna Township Board of Commissioners, revoked building permit no. 16875. Thereafter, the validity of the revocation of permit no. 16875 was reviewed by the Commonwealth Court of Pennsylvania, which entered an order at 2864 C.D. 1997 on April 3, 1998, declaring that the action of the commissioner defendants revoking the building permit was illegal. The equity action instituted against plaintiff Vartan Supply at no. 5450 Equity 1997, Dauphin County Court of Common Pleas by defendant commissioners to enjoin plaintiffs from proceeding under building permit no. 16875 was ordered dismissed by the Commonwealth Court, authorizing plaintiffs to proceed pursuant to the permit. Shortly after receiving notice that the Commonwealth Court had declared the commissioners’ May 1997 revocation of permit no. 16875 illegal, defendants Kessler and Garber signed a letter dated April 6, 1998 purporting to revoke building permit no. 16875 yet again and setting forth ‘reasons.’ The action of the defendants, in their individual and/or official capacities, and the actions of the municipal defendants as an employer and public entity have inter alia deprived the plaintiffs of legally protected rights under color of state law. Plaintiffs’ rights under the Municipalities Planning Code, the Sunshine Law, the Susquehanna Township Zoning Ordinance and other statutes have been violated. In addition, plaintiffs believe defendants have tortiously interfered with contractual, civil and legal rights and have conspired to otherwise violate the law. Plaintiffs required discovery in order to prepare a proper complaint to determine who participated in the permit revocation, the motivations associated with the revocation, and the procedures by which the revocation came about.”

The Rules of Civil Procedure regarding discovery contemplate the types of pre-complaint discovery sought by plaintiffs here (depositions, interrogatories and document production), as follows:

“4001(c) — Subject to the provisions of this chapter, any party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for the purpose of discovery, or for preparation of pleadings, or for preparation or trial of a case, or for use at a hearing upon petition, motion or rule, or for any combination of the foregoing purposes.

“4009.11(a) — The request [for documents and things] may be served without leave of court upon the plaintiff after commencement of the action and upon any other party with or after service of the original process upon that party.” Pa.R.C.P. 4001(c) and 4009.11(a), 42 Pa.C.S. (emphasis added)

Rule 4003.1(a) provides that “a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . .” Thus, the discovery rules do not limit the use of pre-complaint discovery. See Cowell v. Borough of Penn Hills, 34 D.&C.3d 539, 540-41 (Allegheny C.P. 1982).

Rule 4012 does permit that “for good cause shown, the court may make an order ... to protect a party or person from unreasonable annoyance, embarrassment, oppression, burden or expense . . . .” Pa.R.C.P. 4012, 42 Pa.C.S. Defendants argue compliance with plaintiffs’ discovery requests will cause them unreasonable annoyance, burden, expense and oppression. Defendants argue plaintiffs know all the facts which give rise to their purported cause of action. We are unconvinced, however, that defendants have adequately articulated and supported good cause for protection from pre-complaint discovery. Their argument that plaintiffs know all the facts does not address the Rule 4012’s essential conditions; that the discovery request causes unreasonable annoyance, embarrassment, oppression, burden or expense. Furthermore, plaintiffs deny they have all information necessary to specifically identify all proper causes of action and to identify all specific parties responsible for injuring plaintiffs.

Defendants also argue that they have shown good cause for protection from pre-complaint discovery since the township is immune from suit and the Board of Commissioners, in either capacity, may be immune. While the township might be immune from some civil actions, immunity does not exist for all statutory actions, mandamus actions, declaratory actions or civil rights actions. Thus, defendants’ motion fails to meet the standard of good cause shown.

The only remaining issue is whether the discovery sought is relevant to the subject matter involved in the pending action. Pa.R.C.P. 4003.1(a). We believe they do. The detailed discovery notices, quoted above, set forth the basis upon which the plaintiffs seek material relevant to the pending action.

Accordingly, we enter the following:

ORDER

And now, June 3, 1998, defendants’ motion for protective order is hereby denied.

      . These parties had been involved in related litigation. Susquehanna Township v. Vartan Enterprises Inc. and Vartan Supply Company and the Ainjar Trust, John O. Vartan, Trustee, no. 5450 Equity 1997 (Dauph. C.P. Sept. 18, 1997), rev’d, no. 2864 C.D. 1997 (Pa. Commw. April 3, 1998).


author: BRADLEY, J.,

text:
    Rorke v. Fraternal Order of Police Delaware County Lodge No. 27
    C.P. of Delaware County,
    no. 92-2533.

      Kenneth L. Mirsky, for plaintiffs.

      S. Stanton Miller Jr., for defendant.
    August 20, 1997
   BRADLEY, J.,

Defendant Fraternal Order of Police appeals the order denying their post-trial motion.

Plaintiff Peter Rorke and four other Upper Darby police officers were convicted of violating the civil rights of two Upper Darby Township residents. Mr. Rorke was the only officer not on shift at the time of the incident. Mr. Rorke requested permission to go on duty so that he could assist in an investigation involving the alleged assault on his daughter. The five officers went to the residents’ home and a physical altercation ensued. The officers were subsequently indicted for civil rights violations.

The four on-duty officers received legal aid from the FOP during their criminal trial. However, Rorke, who defendant argued was acting as a father and not as a police officer, was denied legal aid. Rorke initiated this action against the FOP to collect legal fees he incurred in the criminal trial. A critical issue at trial was whether or not Mr. Rorke was acting “in the proper performance of his police duties” at the time of the incident. After a jury trial, a verdict was entered on behalf of plaintiffs. Defendant’s motion for post-trial relief was denied. This appeal followed.

Defendant complains, by way of their statement of matters complained of on appeal, that this court erred by denying their motion for a new trial and their motion for judgment n.o.v. First, defendant alleges this court erred in denying defendant’s pretrial motion to preclude plaintiffs from proceeding to trial by jury; that a new trial should be granted because of this error.

The right to a jury trial is constitutionally guaranteed. U.S. Constitution Amendment VII; Pennsylvania Constitution Article 1, Section 6; Recht v. City of Pittsburgh, 118 Pa.Commw. 381, 545 A.2d 450 (1988). Rule 1007.1(a) of the Pennsylvania Rules of Civil Procedure provides that a demand for a jury trial “shall be made by endorsement on the original complaint filed in this matter or by a separate writing.” The Rules of Civil Procedure are to be liberally construed to avoid error that does not affect the substantial rights of any of the parties. 42 Pa.R.C.P. no. 126.

Plaintiffs never waived their right to a jury trial where the original complaint contained the proper endorsement. Defendant argues that the original complaint became null when this court ordered plaintiffs to file an amended complaint; therefore, plaintiffs waived their right to a jury by not endorsing the amended complaint. In Recht, the jury trial demand was made on a permissible pleading in plaintiff’s original equity action. Subsequently, the court issued an order striking the equity complaint because of the existence of an adequate remedy at law. Plaintiff then filed a civil action but failed to demand a jury trial. Plaintiff’s motion for a jury trial was denied because the court determined that plaintiff waived his right by not requesting a jury trial “[no] later than 20 days after service of the last permissible pleading.” See Pa.R.C.P. no. 1007.1(a); Recht, supra at 383, 545 A.2d at 451. Reversing, the Commonwealth Court held that the demand in the equity action was sufficient where the action was transferred and not dismissed. Id. at 383-84, 545 A.2d at 452. The court emphasized the civil action was filed under the same docket number as the equity action and that service by regular mail was permitted in the second action. Id.

Similarly, defendant’s contention fails because the amended complaint did not render the original complaint null. Plaintiffs’ endorsement on the original complaint is sufficient to ensure their right to a trial by jury. The original complaint was never dismissed; the docket number remained the same after the complaint was amended. Rule 1007.1(a) requires only that the demand be made on one permissible pleading. Furthermore, defendant shows no prejudice since the jury trial demand was made at the commencement of this action.

Defendant next contends that this court erred in denying defendant’s motion for compulsory nonsuit, arguing that plaintiffs failed to meet their burden of proof. A compulsory nonsuit may be entered at the end of the plaintiff’s case if the plaintiff has failed to establish a right to relief. 42 Pa.R.C.P. no. 230.1. A nonsuit may not be granted unless, viewing all evidence and all reasonable inferences arising from it in light most favorable to plaintiff, a jury could not reasonably conclude that elements of a cause of action have been established. Talarico v. Bonham, 168 Pa. Commw. 467, 650 A.2d 1192 (1994). Defendant’s motion for nonsuit was properly denied where plaintiffs established a right to relief.

Plaintiff Rorke could only recover the legal fees expended in his criminal trial if he was acting “in the proper performance of his police duties.” Although Rorke was off duty at the time of the incident, he requested to be assigned to active duty so he could assist in the investigation. While it was disputed at trial that Rorke received proper authorization to be put on active duty, Rorke alleged that he received permission from John Falls, the desk sergeant at the time. This factual dispute was properly reserved for the trier of fact.

Defendant’s third contention is that the jury failed to follow the court’s instructions regarding the amount of damages. The jury was instructed that any verdict in favor of plaintiffs was required to be supported by the credible evidence. Defendant claims that the jury failed to reduce their verdict by $30,000, the amount plaintiff paid to plaintiff law firm. However, plaintiffs sued for the entire amount of legal fees. The recovery would then be divided between claimants. Rorke, himself, should be reimbursed for that portion of the whole paid by him.

Defendant’s last contention on appeal is that the denial of defendant’s motion for judgment n.o.v. was error. Defendant claims that the verdict was against the weight of the evidence. In considering a judgment n.o.v., a court must determine whether there was sufficient competent evidence to sustain the verdict, granting the verdiet winner the benefit of every reasonable inference that can be reasonably drawn from the evidence and rejecting all unfavorable testimony and inferences. Rocker v. Harvey Company, 370 Pa. Super. 32, 535 A.2d 1136 (1988). “Judgment n.o.v. is appropriate only in a clear case where the facts are such that no two reasonable minds could fail to agree that, as a matter of law, the party has failed to make out his case.” Id. at 36, 535 A.2d at 1138.

Granting the verdict winner the benefit of every reasonable inference, there was sufficient evidence to sustain a verdict for the plaintiffs. In order for Rorke to recover his legal expenses against the FOP, he must have shown that he was acting “in the proper performance of his police duties.” Plaintiffs offered sufficient evidence at trial through testimony of Mr. Rorke and John Falls that it was unnecessary to be assigned to active duty by the commanding officer to be considered to be “on duty.” Upper Darby’s rules state that a commanding officer may assign an officer to duty, not shall. Defendant argued that Rorke admitted that he was acting as a concerned parent; that the commanding officer, Lt. D’Alessio, was available to Rorke at all times; that Rorke never received authorization from D’Alessio. However, this evidence was contradicted at trial. Testimony also revealed that Rorke felt he was acting as a police officer as well as a parent. Additionally, Mr. Falls testified that it was not necessary to be assigned by the commanding officer to be considered “on duty.” Since it was disputed at trial whether or not Rorke was “on duty” or acting as a civilian, the issue was properly left to the jury. This court respectfully requests that our order denying defendant’s post-trial motions be affirmed.

      . Rule 6 of the Upper Darby Police Department’s Rules and Regulations provides that an off-duty officer could be “assigned to active duty by the commanding officer of the department.”

      . Defendant’s bylaws contain the following legal aid provision: “Any active member, in good standing, who, in the proper performance of his police duties, is arrested and charged with any offense, or indiscriminately disciplined or dismissed by department regulations, shall be furnished free legal aid and representation by the lodge, and bail, if necessary.”

      . The court found that the demand in the equity action sufficiently preserved the plaintiff’s right to a jury trial, despite the fact that there is no right to a jury trial in an equity action. Id. at 384, 545 A.2d at 452.

      . Rule 6 of the Upper Darby Police Department’s Standing Rules and Regulations states: “Every member of the police department shall be considered as on duty for 24 hours each day and may be assigned to active duty by the commanding officer of the department.”