author: NEALON, J.,

text:
    Scott Township Sewer and Water Autority v. Tellip

      C.P. of Lackawanna County,
    No. 13-CV-52740

      Robert P. Daday, for plaintiff.

      W Boyd Hughes, for defendant.
    Feb. 6, 2015
   NEALON, J.,

A municipal sewer authority has filed this collection action against an eighty year old widow, seeking payment of monthly sewer user fees for a structure that has been uninhabited for ten years and which is used solely for storage of her son’s excavating and landscaping equipment. Although the widow has connected her residence to the sewer system and paid all sewer connection and monthly user fees for that residential property, she has not connected the storage structure to the sewage system, nor has she paid any sewer fees for that separate structure, since the shower, toilet and sinks have been removed from that storage structure which is incapable of discharging sanitaiy sewage or wastewater from its inoperable septic system due to the presence of the sewer authority’s pipelines in the drain field for that decommissioned septic system.

A sewer authority is vested with the discretion to establish and collect sewer fees at reasonable and uniform rates, and may impose a monthly user fee upon a property that is not connected to the sewer system, but only if the enabling ordinance mandates such connection by that property. The applicable 2007 and 2011 ordinances only require an “occupied building” to connect to the sewer system, and the structure in question does not constitute an “occupied building” under those ordinances. Although the 2012 ordinance replaced the words “occupied building” with the phrase “any structure built for or capable of use for human occupancy,” the definition of that substitute terminology in the 2012 ordinance nevertheless requires the structure to be capable of discharging sanitary sewage or wastewater now or in the future in order to be obligated to connect to the sewer system. Since all water service facilities have been removed from the widow’s storage structure, and the sewer authority’s placement of pipelines through the septic drain field has permanently decommissioned the structure’s septic system, that structure is incapable of discharging sanitary sewage or wastewater now or in the future. As such, that structure is not required to be connected to the sewer system under the 2012 ordinance. Consequently, the sewer authority committed a manifest and flagrant abuse of discretion in attempting to collect unreasonable sewer user fees for the widow’s long-uninhabited structure which is unable to discharge sanitary sewage or wastewater, and for that reason, a non-jury verdict will be entered in her favor.

I. PROCEDURAL HISTORY

Plaintiff, Scott Township Sewer and Water Authority (“the Sewer Authority”), commenced this action against defendant, Regina S. Tellip (“Tellip”), by the filing of a “Municipal Claim” on August 27,2013, seeking to recover unpaid sewer fees in the amount of $2,168.68 for the years 2011,2012 and 2013. (Docket entry no. 1). On September 18, 2013, the Sewer Authority secured a writ of scire facias, which was later served upon Tellip on October 16,2013. (Docket entry nos. 2-3). On November 6, 2013, Tellip filed an “affidavit of defense” in response to the writ of scire facias, and asserted that her property at 1021 Lakeland Drive should not be subject to sewer fees since it “contains no water facilities.” “has been uninhabitable for the last 8-10 years,” and “is not an Equivalent Dwelling Unit (EDU) as defined by Scott Township’s Resolution # 2012-01-10.” (Docket entry no. 4 at ¶¶ 2, 4-5).

After the Sewer Authority filed a certificate of readiness under Lacka. Co. R.C.R 214, a compulsory arbitration hearing was conducted before a board of arbitrators which entered an award in favor of the Sewer Authority. (Docket entry nos. 5, 7). Tellip filed a de novo appeal under Pa.R.A.P. 1311 and Lacka. Co. R.C.P. 1301, and following a status conference before the undersigned on November 6, 2014, this case was scheduled for a non-jury trial on January 29, 2015. (Docket entry no. 7-8, 11-12). On that date, testimony was received from Karen Cecchini, Gary Wilding, Theodore Tellip, Jr., and Carl Ferraro, and the Sewer Authority introduced fifteen exhibits while Tellip submitted eight exhibits.

“In a bench trial, the trial judge acts as the fact-finder and has the authority to make credibility determinations and to resolve conflicts in evidence.” Merrell v. Chartiers Valley School District, 51 A.3d 286, 293 (Pa. Cmwlth. 2012). When serving as the finder of fact, the trial judge is “in the sole position to observe the demeanor of the witnesses and assess their credibility.” Hirsch v. EPL Technologies. Inc., 910 A.2d 84, 88 (Pa. Super. 2006), app. denied, 591 Pa. 727, 920 A.2d 833 (2007). As a consequence, the trial judge in a nonjury trial “is free to believe all, part of none of the evidence presented.” Haan v. Wells, 103 A.3d 60, 72 (Pa. Super. 2014); Rizzo v. MSA. Inc., 18 Pa. D. & C. 5th 233, 244-245 (Lacka. Co. 2010), aff’d, 32 A.3d 830 (Pa. Super. 2011).

In addition, “[j judicial notice can be taken of pleadings and judgments in other proceedings where appropriate,” Krenzel v. Southeastern Pennsylvania Transportation Authority, 840 A.2d 450, 454 n.6 (Pa. Cmwlth. 2003), particularly where the other proceedings involve the same party. Lycoming County v. Pennsylvania Labor Relations Board, 943 A.2d 333, 335 n.8 (Pa. Cmwlth. 2007). A court may also take judicial notice of established matters in publicly-available dockets for cases filed in its own jurisdiction. See Deyarmin v. Consolidated Rail Corp., 931 A.2d 1, 15 n. 10 (Pa. Super. 2007), app. denied, 597 Pa. 706, 948 A.2d 805 (2008). The factual findings set forth in Section II below are based upon the credible and relevant evidence presented during the bench trial, as well as those matters which may be judicially noticed.

II. FINDINGS OF FACT

(A) INTRODUCTION

The Scott Township Board of Supervisors created the Sewer Authority pursuant to the Municipality Authorities Act, 53 Pa. C.S. §§ 5601-5623, in order to construct and operate a public sanitary sewer collection system. (Plaintiff’s Exhibit No. 1 at pp. 1, 6). Tellip is an 80 year old, deaf resident of Scott Township and the record owner of properties located at 5 Marjean Street and 1021 Lakeland Drive in Scott Township. (Plaintiff’s Exhibit No. 2 at pp. 2-11, 15-64; transcript of proceedings (T. P.) on 1/29/15 at p. 72). Tellip resides in a single dwelling unit situated on her Marjean Street property. (Plaintiff’s Exhibit No. 2 at p. 7; T. P. 1/29/15 at pp. 72, 89).

A structure is located on Tellip’s Lakeland Drive property, but it has been uninhabited since 2004. (T. P. 1/29/15 at p. 75). In 2005, the water pipes in that structure froze and burst, causing extensive damage to the structure’s ceiling. {Id. at pp. 79-80; Defendant’s Exhibit No. 4). The Lakeland Drive structure is used solely for the storage of excavating and lawn service equipment owned by Tellip’s son, Theodore Tellip, Jr. (T. P. 1/29/15 at pp. 76-77; defendant’s exhibit nos. 2-3). The kitchen sink and bathroom shower, toilet and sink have been removed from the structure, which does not have any functioning water service from a nearby well. (T. P. 1/29/15 at p. 80; defendant’s exhibit nos. 5-6). Besides being located in a special flood hazard area designated by the federal emergency management agency, the Lakeland Drive structure’s former septic system is inoperable since the Sewer Authority installed sewer lines which traverse the drain field for that former septic system. (T. P. 1/29/15 at p. 85; eefendant’s exhibit no. 7).

(B) SEWER ORDINANCES AND RESOLUTIONS

On February 21, 2007, the Scott Township Board of Supervisors enacted ordinance # 07-02-21A governing the connection to the public sanitary sewer collection system in the township. The stated purposes of the 2007 ordinance are “to prohibit certain use of privies, cesspools, septic tanks or similar receptacles for receiving sewage within a certain portion of the township..., and to require connections to be made to such sewer system, by the owners of occupied buildings on property adjoining, abutting on or adjacent to the sewer system, in accordance with this ordinance and with the rules and regulations... adopted by the [Sewer] Authority.” (Docket entry no. 16 at p. 1). An “occupied building” is defined by the ordinance as “each single dwelling unit, household unit, flat or apartment unit, store, shop, office or industrial unit or family unit contained within any structure and intended for continuous or periodic habitation, occupancy or use by human beings or animals and from which structure sanitary sewage is, or may be discharged.” (Id at p. 2) (emphasis added).

Under Section 2 of the 2007 ordinance, “[a]ll persons or entities owning any occupied building now erected upon property accessible to the Sewer System shall, at their own expense, connect such building with the Sewer System within sixty (60) days after written notice to such persons from the township.” (Id.). Section 2 further states that “[i]t is the intent of this ordinance that any property which abuts, adjoins, or is adjacent to the Sewer System and also contains an occupied building be required to connect to the system at the owner[‘]s expense, without regard to the distance between the nearest sewer line and said occupied building.” (Id. at p. 3) (emphasis added). Pursuant to Sections 6 and 7 of the 2007 ordinance, “if any owner of an occupied building on property in the township accessible to the Sewer System shall have failed to connect such property with the Sewer System as required by said Section 2,” the township is empowered to serve written notice upon the owner to so connect within thirty days, and if [s]he fails to do so, to charge the owner “with a summaiy offense and upon conviction” to impose a fine “not exceeding one thousand ($1,000.00) dollars plus costs for each offense. (Id. at p. 4). By its plain language, the ordinance only requires an owner of an “occupied building” to connect to the sewer system.

On July 28, 2011, the Sewer Authority adopted resolution # 2011-07-01 “imposing sewer user fees/ inspection fees and charges for the use of the suthority’s sewage conveynacing (sic) system and other facilities.” (Resolution no. 2011-07-01 atp. 1). Section 1 imposed a monthly user fee of $78.40 per Equivalent Dwelling Unit (EDU) “upon the owners and the users of each property served by (whether by direct connection or through the intervening utilization of other sewer lines and facilities), connected to or required to be connected to the Sewage Facilities....” (Id. at p. 2). In language identical to the definition of an “occupied building” in ordinance # 07-02-21 A, Section 8 of resolution # 2011-07-01 defines an EDU as meaning “each single dwelling unit, household unit, flat or apartment unit, store, shop, office, business or industrial unit or family unit contained within any structure and intended for continuous or periodic habitation, occupancy or use by human beings, or animals and from which structure sanitary sewage is, or may be, discharged.” (Id. at pp. 8-9). Thus, ordinance # 07-02-21A and resolution # 2011-07-01 require connection to the sewer system and payment of monthly user fees only for dwelling or industrial units that are intended for continuous or periodic habitation and from which sanitary sewage is, or may be, discharged.

Three weeks after the Sewer Authority’s adoption of resolution # 2011-07-01, the township amended ordinance # 07-02-21A by enacting ordinance # 11-08-18 on August 18, 2011. (Ordinance # 11-08-18 at p. 1). The 2011 ordinance is identical to the 2007 ordinance with two exceptions. First, Section 2(b) of the 2011 ordinance addresses occupied buildings with septic systems, and states that “[a] 11 person or entities owning any property that is accessible to the Sewer System that contains a septic system that is in use by an occupied building or buildings shall, at their own expense, connect such buildings with the Sewer System within ninety (90) days after written notice to such persons from the township.” (Id. at p. 2). Second, Section 2(c) of the ordinance provides that “ [a] 11 persons or entities owning any occupied building must decommission their existing septic systems immediately upon connection to the central sewer system.” (Id.).

On January 10, 2012, the Sewer Authority adopted resolution # 2012-01-10 as an amendment to resolution # 2011-07-01. Resolution # 2012-01-10 establishes a “connection fee” in addition to a monthly user fee. (Resolution # 2012-01-10 at p. 2). Section 8(a) of the 2012 resolution also changes the prior definition of an EDU to mean:

...each structure of any kind or nature initially constructed with or thereafter which contains toilet and water facilities and/or lines emanating from the structure capable of carrying sewage or wastewater from said structure, or any single dwelling unit, household unit, flat or apartment unit, store, shop, office, business, industrial unit, or family unit contained within any structure, that is capable of or was intended when constructed, for continuous or periodic habitation, occupancy or use by human beings, or animals or from which structure or unit sanitary sewage is, or maybe, discharged in any manner.

(Id. at p. 9) (changes in italics). Furthermore, Section 8(g) sets forth a procedure by which an individual may “challenge or contest the EDU determination” of the Sewer Authority “within 60 (Sixty) days of the day of the first bill issued by the Authority for user fees....” (Id. at p. 11).

On February 16, 2012, Scott Township enacted ordinance # 12-02-16-003 as an amendment to ordinance # 07-02-21A and ordinance # 11-08-18. In contrast to the 2007 and 2011 ordinances which both contained a stated purpose of requiring connection to the sewer system “by the owners of occupied buildings on property adjoining, abutting on or adjacent to the sewer system,” the 2012 ordinance requires such connection “by the owners of any structure built for or capable of use for human occupancy on property adjoining, abutting on or adjacent to the sewer system.” (Ordinance # 12-02-16-003 at p. 1). The 2012 ordinance further deletes the definition of an “occupied building,” and replaces it with the definition of “any structure built for or capable of use for human occupancy,” which is:

...each structure of any kind or nature initially constructed with or thereafter containing toilet or water facilities and/or lines emanating from the structure capable of carrying sanitary sewage or wastewater from said structure or each single dwelling unit, household unit, flat or apartment unit, store, shop, office, business or industrial unit contained within any structure, whether or not up to code, and capable of or intended when constructed, for continuous or periodic habitation, occupancy or use by human beings or animals and from which structure sanitary sewage or wastewater is now, or may be discharged in any manner in the future.

(Id. at p. 2) (emphasis added). Additionally, Section 2(a) of the 2012 ordinance requires connection to the sewer system by any such “structure built for or capable of use for human occupancy.” (Id.).

A material conflict appears to exist between the definition of an EDU in the 2012 Resolution and the definition of “any structure built for or capable of use for human occupancy” in the 2012 ordinance. Section 8(a) of resolution #2012-01-10 defines an EDU as any structure initially constructed with or thereafter containing toilet and water facilities or lines capable of carrying sewage “that is capable of or was intended when constructed, for continuous or periodic habitation, occupancy or use by human beings, or animals or from which structure or unit sanitary sewage is, or may be, discharged in any manner.” (Resolution # 2012-01-10 at p. 9). However, the definition of “any structure built for or capable of use for human occupancy” in ordinance # 12-02-16-003 references comparable structures “capable of or intended when constructed, for continuous or periodic habitation, occupancy or use by human beings or animals and from which structure sanitary sewage or wastewater is now, or may be discharged in any manner in the future.” (Ordinance # 12-02-16-003 at p. 2). By virtue of the use of the conjunctive word “and” in the 2012 ordinance, the structure must not only have been “intended when constructed” for habitation or occupancy, but must also currently be discharging, or capable of discharging, sanitary sewage or

wastewater. To the extent that a conflict exists between the resolution dated January 10, 2012, and the ordinance of February 16, 2012, the township’s ordinance controls, see Seitel Data, Ltd. v. Center Township, 92 A.3d 851, 859 (Pa. Cmwlth. 2014) (“As a general rule, a resolution does not have the effect of a law or an ordinance.”), particularly since ordinance # 12-02-16-003 was adopted after the passage of resolution # 2012-01-10. See 6 L’s Packing Company v. WCAB (Williamson), 615 Pa. 615, 631, 44 A.3d 1148, 1158 (2012) (tension between laws enacted on different dates is generally to be resolved in favor of giving the greatest effect to the later-enacted provision).

On October 23, 2012, the Sewer Authority adopted resolution # 2012-10-23 which amended the monthly user fee and connection fee set forth in resolution # 2012-01-10. The second 2012 resolution increases the monthly user fee to $88.00 “per EDU effective October 12, 2012.” (Resolution # 2012-10-23 at p. 1). Moreover, on April 9, 2013, the Sewer Authority adopted resolution # 2013-04-002 approving the assessment of certain interest, penalties and fees “to be added to the amount collected as part of municipal claims for delinquent accounts.” (Plaintiff’s Exhibit No. 1 at pp. 20-23).

(C) GRABOWSKI PROPERTY

The Scott Township Code Enforcement Officer, Carl Ferraro, is vested with the authority to enforce the township’s ordinance mandating connection to the sewer system and the Sewer Authority’s resolution governing connection fees and monthly user fees. (T. P. 1/29/15 at p. 97). According to Mr. Ferraro, John Grabowski, Jr., owns a property on Green Grove Road, Scott Township, which contains a structure that housed a mountain bike club known as the Hubbard Bike Club. (Id. at pp. 97-98). The structure originally had a “commercial kitchen,” which included “an Ansul system, grill, fryers [and] pizza ovens,” and also contained two bathrooms, a shower [and] kitchen sink” that were serviced by “a lateral [pipe] to the property.” (Id. at pp. 98-99).

The Sewer Authority initially classified the Grabowski structure as an EDU and attempted to charge a monthly user fee for that Green Grove Road property. (Id. at p. 98). However, after the Hubbard Bike Club ceased operations there once the bathrooms became inoperable “because the pipes had frozen due to lack of heat,” Mr. Grabowski removed the shower, sinks and toilets, but “did not remove the water” service to the structure. (Id. at p. 100). As soon as Mr. Ferraro verified that the shower, sinks and toilets had been removed and that “the septic system was nonoperational,” the Sewer Authority chose not to charge Mr. Grabowski a monthly user fee for his Green Grove Road property. (Id.).

(D) KASHUBA PROPERTY

Edward Kashuba owns land in Scott Township, including a property on Layton Road containing a house that Mr. Kashuba uses for storage of “[products from his Corky’s Garden Path Greenhouse” business, (Id. at pp. 101-103). Although the Kashuba structure has active water service that Mr. Kashuba uses “for watering his plants outside and for...hot water boilers” which heat that structure and Mr. Kashuba’s nearby house, “the toilets and bathtubs” and the fixtures for the “bathroom and kitchen” were removed from that storage structure. (Id. at p. 103). Since that structure is incapable of discharging any sanitary sewage, Mr. Kashuba refused to pay a monthly user fee to the Sewer Authority for that property. (Id. at p 104).

On August 27, 2013, the township filed a “municipal claim” against Mr. Kashuba seeking to recover $2,233.58 for unpaid sewer fees and recoverable penalties and costs. (Scott Township v. Kashuba, No. 13 CV 5278 at docket entry no. 1 (Lacka. Co.)). In addition, Mr. Ferraro filed a summary offense citation against Mr. Kashuba pursuant to Sections 6 and 7 of ordinance # 12-02-16-003. (T. P. 1/29/15 at p. 102; Com. v. Kashuba, No. 13 SA 0135 (Lacka. Co.)). The Township secured a writ of scire facias against Mr. Kashuba on September 18, 2013, and Mr. Kashuba filed preliminary objections which asserted, inter alia, that the Sewer Authority “has impermissibly and selectively assessed properties for the collection of sewage fees by selectively classifying equivalent dwelling units (EDUs)...in violation of the 14th Amendment of the United States Constitution.” (Scott Township Sewer and Water Authority v. Kashuba, supra, at docket entry nos. 2-3).

The Sewer Authority filed a praecipe for assignment on April 21, 2014, and the chief deputy court administrator issued a notice scheduling Mr. Kashuba’s preliminary objections for oral argument on June 23, 2014. (Id. at docket entry nos. 5, 7). In the interim, a summary appeal hearing was conducted in Com. v. Kashuba, supra, on April 22, 2014, at which time Mr. Kashuba argued that his Layton Road property should be treated in the same manner as Mr. Grabowski’s Green Grove Road property since the structure on Mr. Kashuba’s land was similarly incapable of discharging sanitary sewage. (T. R 4/22/14 at pp. 13-16,24-25 in Com. v. Kashuba, No. 13 SA 135 (Lacka. Co.)). At the conclusion of the summary appeal hearing, judge Vito P. Geroulo held:

The Court: Why is [Mr. Grabowski] different from [Mr. Kashuba’s] situation?
Mr. Ferraro: I don’t believe it is.
The Court: You don’t believe it is, okay, I don’t either. I’m going to sustain the appeal. Not guilty

(Id. atp. 26). Following judge Geroulo’s ruling, the Sewer Authority filed praecipes to withdraw the writ of scire facias and the municipal claim that it had filed against Mr. Kashuba. (Scott Township Sewer and Water Authority v. Kashuba, supra. Docket entry nos. 8, 10).

(E) TELLIP PROPERTY

Tellip resides in a home at 5 Marjean Street, Scott Township, which is contiguous to her property at 1021 Lakeland Drive, Scott Township. (T. P. 1/29/15 at p. 89). Upon being notified by the Sewer Authority pursuant to the ordinance, Tellip submitted an “application for central sewer connection” for her Marjean Street property, and thereafter connected to the sewer system and paid the required fees. (T. P. 1/29/15 at p. 89; defendant’s exhibit no. 8). Tellip has declined to pay sewer fees for her Lakeland Drive structure since, according to her counsel, that “house has no water system, sinks, toilets or bathing facilities, the septic system is nonfunctioning, it is not capable for human occupancy or use by human beings, and is not an Equivalent Dwelling Unit (‘EDU’) as defined in Section 8(a) of Resolution # 2012-01-10 ‘from which sanitary sewage is or may be discharged in any manner’ in order to be billed for sewer fees.” (Docket entry no. 13 at p. 1-2). The Sewer Authority counters that since Tellip’s structure on Lakeland Drive “was constructed as the type of structure that is intended for habitation,” it must be connected to the sewer system pursuant to the clear language of ordinance # 12-02-16-003, such that it is irrelevant that the structure “is not capable of discharging sewage and is uninhabitable.” (Docket entry no. 14 at pp. 5-6).

During his non-jury trial testimony, Mr. Ferraro, who is responsible for enforcing the sewer ordinance and resolution, was questioned regarding the Sewer Authority’s disparate treatment of the Grabowski, Kashuba and Tellip properties. Specifically, Mr. Ferraro testified:

Q. How would you compare Mrs. Tellip’s property, which is being charged by the Sewer Authority for a sewer fee, with that of the Grabowski property and the Kashuba property, which have been removed from being assessed for sewer fees?
A. Very similar.
Q. When you say they’re similar, what do you mean by similar?
A. Well, because Kashuba’s does have hot water boilers, so that the water is being used throughout the house and Grabowski still has functioning hose bibs..., but where the Tellip property isn’t using any water at all.
* * *
Q. As a result of the Kashuba appeal, would you bring an action against Mrs. Tellip because her property is similar to the Kashuba and Grabowski properties?
A. No.

(T.P. 1/29/15 at pp. 104-106).

III. DISCUSSION

(A) SCOPE OF REVIEW

A municipal authority is statutorily empowered “[t]o fix, alter, charge and collect rates and other charges in the area served by its facilities at reasonable and uniform rates....” 53 Pa.C.S. § 5607(d)(9). In deciding whether a sewer rate or fee is reasonable, the scope of judicial review is limited to determining whether there has been a manifest and flagrant abuse of discretion or an arbitrary establishment of the rate or fee system. Scott Township Sewer and Water Authority v. Ease Simulation, Inc., 2 A.3d 1288, 1290 (Pa. Cmwlth. 2010); Daleville United Methodist Church v. Covington Township Sewer Authority, 100 Lacka. Jur. 78, 83 (1998). The party challenging the validity of the rate or fee has the burden of proving that it is unreasonable. Ack v. Carroll Township Authority, 661 A.2d 514, 517 (Pa. Cmwlth. 1995), app. denied, 543 Pa. 731, 673 A.2d 336 (1996); Citizens Against Unfair Treatment v. Scott Township, 151 Pa. Cmwlth. 235, 241, 616 A.2d 756, 759 (1992), app. denied, 533 Pa. 647, 622 A.2d 1378 (1993). When considering such a challenge, “[t]he Court of Common Pleas’ duty [i]s to determine the uniformity and reasonableness of the rates established by the authority, not whether it would choose a different method of establishing reasonable and uniform rates.” Hopewell Township v. Municipal Water Authority of Borough of Aliquippa, 82 Pa. Cmwlth. 134, 141, 475 A.2d 878, 883 (1984) (quoting South Union Township Sewage Authority v. Kozares, 13 Pa. Cmwlth. 325, 332, 320 A.2d 381, 385 (1974)); Daleville United Methodist Church, 100 Lacka. Jur. at 84.

(B) REASONABLENESS OF SEWER FEES

Under Pennsylvania law, “it is well settled that sewer rental charges must bear a ‘reasonable relation to the value of the service rendered either as actually consumed or as readily available for use.”’ Washington Realty Co., Inc. v. Municipality of Bethel Park, 937 A.2d 1146, 1150 (Pa. Cmwlth. 2007) (quoting Patton-Fereuson Joint Authority v. Hawbaker, 14 Pa. Cmwlth. 402, 407, 322 A.2d 783, 786 (1974)), app. denied, 599 Pa. 684, 960 A.2d 457 (2008). “In order to be assessed sewer rental fees, an individual sought to be charged must obtain ‘some’ benefit.” Perano v. ORD Sewer Authority, 47 A.3d 210, 217 (Pa. Cmwlth. 2012), app. denied, 618 Pa. 692, 57 A.3d 72 (2012); Ack, 661 A.2d at 517. “The mere fact that a parcel of property is connected to a sewage system provides value to the premises.” Scott Township Sewer and Water Authority, 2 A.3d at 1290; Washington Realty Co., 937 A.2d at 1150.

The Supreme Court of Pennsylvania and the Commonwealth Court of Pennsylvania have had occasion to consider the reasonableness of sewer rental charges assessed against properties that have not connected to the municipal sewer system. In Hamilton’s Appeal, 340 Pa. 17, 16, A.2d 32 (1940), the Supreme Court considered the validity of a City of Philadelphia Ordinance imposing sewer charges pursuant to the Sewer Rental Act, Act of July 18, 1935, P.L. 1286, as amended, 53 P.S. §§ 2231-2234. The ordinance charged a sewer rental fee for “each lot or parcel of land, building or premises having any connection with or being available for connection with the sewer system of the city or otherwise discharging sewage, industrial waste, water or other liquids or substances, either directly or indirectly, into the said sewer system.” Id. at 19, 16 A.2d at 33. The Supreme Court interpreted the Philadelphia ordinance as “requiring payment to be made not only by those who have availed themselves of the right to connect with the sewer, but by all those to whom it is made available by its presence.” Id. at 21-22, 16 A.2d at 34.

The Hamilton’s Appeal court found that the Pennsylvania Sewer Rental Act “would appear to apply solely to charges based upon actual use[] of the sewer system, and further would seem to require that the charge be reasonably proportional to the value of the service rendered, and not in excess of it.” Id. at 22,16 A.2d at 35. Reasoning that the state statute “furnishes no authority for the ordinance in question,” the Supreme Court held that the assessment of a sewer fee upon properties which had not connected to the sewer system could not “be sustained on any theory of supposed special benefits arising from the mere presence or availability for use of the facility.” Id. at 22-23, 16 A.2d at 35. See also Marett v. Borough of Volant, 54 Pa. D. & C. 4th 77, 84 (Lawrence Co. 2001) (“The [.Hamilton’s Appeal] court held that it was unlawful, therefore, for properties to be charged when they were not connected to the system or connected to it but not utilizing it.”).

In the early 1980’s, the Commonwealth Court issued a series of decisions regarding the imposition of sewer rental fees upon owners of properties which had not connected to the available sewer system. In Coudriet v. Township of Benzinger, 49 Pa. Cmwlth. 275, 411 A.2d 846 (1980), the landowners argued that they could not “be forced to pay sewer rentals since they have never tapped into the sewer system.” Id. at 278, 411 A.2d at 848. Finding that such a conclusion “would circumvent the statutory purpose behind the imposition of sewer rentals and undermine the financial soundness of a municipality’s sewer system,” the Commonwealth Court concluded that the property owners had “not presented any justification for not tapping into the sewer system which is readily accessible to them and are responsible to pay the rental fees despite the fact they have not utilized the services available to them.” Id. The Coudriet court further held that the landowners had “not met their burden of proving discrimination since they have been charged the same sewer rentals as those charged all other commercial properties throughout the township.” Id. at 279, 411 A.2d at 848-849.

Two years later, the Commonwealth Court cited Coudriet with approval in holding that a property owner “must pay the sewer rentals even though he has not tapped into the sewer system.” Marnickas v. Tremont Municipal Authority, 67 Pa. Cmwlth. 117, 120, 445 A.2d 1383, 1385 (1982). Shortly thereafter, the court in Pelton v. Pine Creek Municipal Authority, 85 Pa. Cmwlth. 187, 481 A.2d 385 (1984) relied upon Marnickas in finding that a municipal sewer authority was “authorized to assess sewer fees against properties which should be, but which are not, connected to the authority’s sewer system.” Id. at 189, 481 A.2d at 386-387. However, more than a decade after Pelton, the Commonwealth Court stated that “it was held in Hamilton’s Appeal. 340 Pa. 17, 16 A.2d 32 (1940), that where a rate schedule based on property assessment had charged rents to vacant lots and buildings which were not connected to the sewer system, the rates were unreasonable because the sewer system conferred no benefit on the owners of the property.” Ack, 661 A.2d at 517.

More recently, the Commonwealth Court reconciled the Supreme Court holding in Hamilton’s Appeal with the Commonwealth Court decisions in Coudriet, Marnickas and Pelton. In Perano, supra, the property owner asserted that those Commonwealth Court rulings, which concluded “that landowners may be assessed sewer fees even if they have not connected to the sewer system, were wrongly decided because they disregarded the holding m Hamilton Appeal....” Perano, 47 A.3d at 216. The Commonwealth Court observed that “the question before this court is whether ORD [Sewer Authority] may impose sewer fees upon the owner of property who is required by the ordinance to connect to the sewer system, if, in violation of the ordinance, the property owner fails to connect.” Id. (emphasis in original). Distinguishing Hamilton’s Appeal from Coudriet, Marnickas and Pelton based upon the specific language of the applicable ordinances, the Perano court concluded:

In the instant matter, the ordinance required Perano to connect to the sewer system. The ordinance in Hamilton’s Appeal did not require adjacent properties to connect to the sewer system.... Unlike the facts in Hamilton’s Appeal had Perano connected to the sewer system as he was required to do, there is no question that he would be required to pay the very same sewer fees he now disputes.

Id. at 217 (emphasis in original). Thus, Per ano held that since “[t]he sewer system was readily available for Perano’s use, despite his failure to adhere to the ordinance and connect..., we find that Perano was properly assessed sewer fees.” Id.

(C) REQUIREMENT OF CONNECTION TO SEWER SYSTEM

Based upon the foregoing decisional precedent, the Sewer Authority may charge Tellip monthly user fees for her Lakeland Drive property only if the Scott Township ordinances required that property to connect to the sewer system. Conversely, if the Scott Township ordinances did not mandate a sewage connection for Tellip’s Lakeland Drive property, Hamilton Appeal and its progeny deem sewer fees for that property to be unreasonable and a manifest abuse of discretion by the Sewer Authority. See Hickory Township v. Brockway, 201 Pa. Super. 260, 269, 192 A.2d 231, 235 (1963) (finding that fixed sewer rental charge on each receptacle located within a motel was prima facie reasonable, and noting that “[t]his is not the equivalent of a charge for the use of a sewer on a property not connected with the sewer.”).

The Sewer Authority seeks to recover unpaid sewer fees from Tellip for the years 2011, 2012 and 2013. The 2011 and 2007 ordinances required “any occupied building” to connect to the sewer system, which by definition did not include the long-uninhabited structure on Lakeland Drive from which sanitary sewage could not be discharged. Therefore, since Tellip’s Lakeland Drive property was not an “occupied building” that was required to be connected to the sewer system under the governing ordinances, it was unreasonable and a manifest abuse of discretion for the Sewer Authority to charge Tellip monthly user fees for that property in 2011. See Hamilton’s Appeal, 340 Pa. at 22-23, 16 A.2d at 35; Perano, 47 A.3d at 217.

The Township’s substitution in the 2012 ordinance of the phrase “structure built for or capable of use for human occupancy” for the words “occupied building” does not yield a different result. As stated in Section 11(B) above, the use of the conjunction “and” in the definition of “any structure built for or capable of use for human occupancy” likewise renders that definition inapplicable to Tellip’s structure on Lakeland Drive. To be subject to the payment of monthly user fees under the language employed by the township in ordinance # 12-02-16-003, the Lakeland Drive structure must not only have been constructed initially with toilet and water facilities, or intended for occupancy when originally constructed, but must also be capable of discharging sanitary sewage or wastewater currently or in the future. As a result of the removal of all water service facilities from that property, coupled with the Sewer Authority’s permanent extinguishment of the operability of the former septic system’s drain field, the Lakeland Drive structure is incapable of discharging sanitary sewage or wastewater now or in the future.

Accordingly, pursuant to the language contained in the 2012 ordinance that was drafted by the township, Tellip was not required to connect her Lakeland Drive structure and property to the sewer system in 2012 or 2013. For that reason, the Sewer Authority’s imposition of monthly user fees for that property in 2012 and 2013 was likewise unreasonable and a manifest abuse of discretion. Hamilton’s Appeal, supra\ Perano, supra.

Tellip has not established that the disparate treatment of the similarly situated Grabowski and Kashuba properties by the township and the Sewer Authority is tantamount to impermissible selective enforcement of the township’s sewer ordinance and the Sewer Authority’s resolution. See KC Equities v. Department of Public Welfare, 95 A.3d 918, 934-935 (Pa. Cmwlth. 2014), app. denied, No. 455 MAL 2014 (Pa. 2015); Koken v. One Beacon Ins. Co., 911 A.2d 1021, 1030-1031 (Pa. Cmwlth. 2006). Under the equal protection clause to the United States Constitution and Article 1 Section 26 of the Pennsylvania Constitution, “[t]he essence of the constitutional principle of equal protection under the law is that like persons in like circumstances will be treated similarly.” Muscarella v. Com., 87 A.3d 966, 972 (Pa. Cmwlth. 2014). The evidence established that the Sewer Authority has excused Mr. Grabowski and Mr. Kashuba from payment of sewer fees even though the Grabowski structure continues to have “functioning hose bibs” and the Kashuba property has active water service for hot water boilers and watering of plants. The township’s own code enforcement officer, who is responsible for enforcing the sewer ordinance and Sewer Authority Resolution, has acknowledged that the Grabowski, Kashuba and Tellip properties are “very” similarly situated, and that he would not institute an enforcement proceeding against Tellip.

However, to establish a selective enforcement defense, Tellip must not only prove that other similarly situated residents were not charged or prosecuted for similar conduct, but also that she “was intentionally and purposefully singled out for an invidious reason.” Koken, 911 A.2d at 1031: Com. v. Sanico, Inc., 830 A.2d 621, 629 (Pa. Cmwlth. 2003). “Impermissible grounds such as race, religion or any arbitrary classification or the exercise of some constitutional right may constitute such an invidious reason.” Com. v. Celano, 717 A.2d 1071, 1074 (Pa. Cmwlth. 1998). Absent proof of such an “invidious reason,” Tellip cannot succeed with a selective enforcement or prosecution defense. See Com, v. Olavage, 894 A.2d 808, 811 (Pa. Super. 2006), app. denied, 589 Pa. 720, 907 A.2d 1102 (2006); Com. v. Faust, 702 A.2d 598, 604 (Pa. Cmwlth. 1997) (“To make a case for selective prosecution, a defendant must prove the element of intentional and purposeful discrimination, and the mere failure of authorities to prosecute others similarly situated does not constitute a violation of due process or equal protection rights.”), app. denied, 553 Pa. 708, 719 A.2d 747 (1998). Although Tellip has established that other similarly situated residents have not been subject to enforcement of the township’s sewer ordinance and the Sewer Authority’s Resolution, she has not demonstrated, or even alleged, the requisite “invidious reason” to support a selective enforcement or prosecution defense. Thus, her selective enforcement or prosecution claim must fail.

Nevertheless, based upon the foregoing, a verdict will be entered in favor of Tellip and against the Sewer Authority. In addition, the clerk of judicial records will be directed to strike the writ of scire facias issued with respect to Tellip’s property at 1021 Lakeland Drive, Scott Township.

NON-JURY VERDICT

And now, this 6th day of February, 2015, upon consideration of the credible and relevant evidence introduced during the non-jury trial on January 29, 2015, the briefs and exhibits submitted by the parties, and the oral argument of counsel, and based upon the findings of fact and conclusion of law set forth in Sections (II) and (III) above, it is hereby ordered and decreed that a non-jury verdict is entered in favor of defendant, Regina S. Tellip, and against plaintiff, Scott Township Sewer and Water Authority, and that the clerk of judicial records is directed to strike the writ of scire facias issued on September 18, 2013.

      . A writ of scire facias “is a writ authorized to be issued as a means of enforcing payment of a municipal claim out of the real estate upon which such claim is a lien,” and its object is “to ascertain the sum due on a lien of record and to give the defendant an opportunity to show cause why the plaintiff should not have execution.” Western Clinton County Municipal Authority v. Estate of Rosamilia, 826 A.2d 52, 56 (Pa. Cmwlth. 2003). In an in rem proceeding instituted by a writ of scire facias, “the owner files an “affidavit of defense’” raising “all defenses he or she has to the municipal claim.” Id. Once a writ a scire facias has been issued and the owner has filed an affidavit of defense, the parties may proceed to litigate their dispute pursuant to the municipal claims act, Act of May 16, 1923, P.L. 207, as amended, 53 P.S. §§7101 et seq. See North Coventry Township v. Tripodi, 64 A.3d 1128, 1133 (Pa. Cmwlth. 2013).

      . However, Resolution # 2011-07-01 does not prescribe a procedure by which an individual may challenge the EDU determination made by the sewer authority. (Id at p. 10).

      . The use of the word “or” is disjunctive and “means one or the other of two or more alternatives.” In re Paulmier, 594 Pa. 433, 448, 937 A.2d 364, 373 (2007); Com. v. Pal, 2013 WL 6197355, at *9 (Lacka. Co. 2013). The word “and” is conjunctive and conjoins the phrases that come before and after it, and does not imply a choice between alternatives. Com. v. Busser, 56 A.3d 419, 421-122 (Pa. Super. 2012), app. denied, 621 Pa. 663, 74 A.3d 125 (2013). In light of the conjunctive term “and” appearing before the phrase “from which structure sanitary sewage or wastewater is now, or may be discharged in any manner in the future” in ordinance # 12-02-16-03, connection to the sewer system is mandated only for owners of structures from which “sanitary sewage or wastewater is now, or may be discharged in any manner in the future.” See Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 962 (Pa. Super. 2011), aff’d, 2014 WL 7182170 (Pa. Dec. 15,2014).


source: Caselaw Access Project

author: ZANIC, J.,

license: Public Domain

text:
    Hench v. Nace

      C.P. of Perry County,
    No. 2014-454

      Craig Staudenmaier, for plaintiff

      Joshua Prince, for defendant
    Sept. 8, 2014
   ZANIC, J.,

The issue for resolution by this court in this declaratory judgment action is whether the complaint filed by the Peny County Auditors is legally sufficient to overcome the preliminary objections filed by the Perry County Sheriff. Plaintiffs have asked this court to compel the defendant to provide them access to “any and all original and unredacted records in which the sheriff records the receipt and disbursement of the application fees paid by applicants for licenses to cany concealed firearms.” The crux of the controversy centers on the sheriff’s refusal to provide to the auditors the names and addresses of Peny County residents who submit an application for a license to cany firearms. Sheriff Carl Nace has filed preliminary objections to the complaint in the nature of a demurrer pursuant to Pa.R.C.P. 1028(a)(4).

STANDARD

A preliminary objection in the nature of a demurrer will be granted when the contested pleading is legally insufficient. When considering a preliminary objection contesting the legal sufficiency of a complaint, all material facts set forth in that pleading and any exhibits attached to it are admitted as true, as well as all reasonable inferences which may be drawn from those facts. Soto v. Nabisco, Inc., 2011 PA Super 249, 32 A.3d 787, 790 (Pa. Super. 2011). It is also settled that a preliminary objection in the nature of a demurrer require a court to resolve the issues solely on the basis of the pleadings; no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by the demurrer.” Mellon Bank, N.A. v. Fabinyi, 437 Pa. Super. 559, 650 A.2d 895, 899 (Pa. Super. 1994). Williams v. Nationwide Mut. Ins. Co., 2000 PA Super 110, P4, 750 A.2d 881, 883, 2000 Pa. Super. LEXIS 374, 4 (Pa. Super. Ct. 2000). Accordingly, the documents attached to defendant’s preliminary objections cannot be considered by the court. Additionally, any factual averments propounded by Sheriff Nace cannot and have not been considered at this stage of the proceeding.

Preliminary objections seeking the dismissal of a claim may be sustained only in cases that are clear and free from doubt, Discover Bank v. Stucka, 2011 PA Super 241, 33 A.3d 82, 86 (Pa. Super. 2011), and to be clear and free from doubt, it must appear with certainty that the law would not permit recovery based upon the facts averred. Rodgers v. Lorenz, 2011 PA Super 154, 25 A.3d 1229, 1231 (Pa. Super. 2011). If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objection. Butler v. Charles Powers Estate, 2011 PA Super 198, 29 A.3d 35, 39 (Pa. Super. 2011).

DISCUSSION

In the case at bar, we have determined that the complaint is legally insufficient, and as such, a dismissal is required. The auditors have failed to overcome the demurrer of the sheriff for two clear and distinct reasons. First, the compliant improperly seeks to increase the statutory authority of the Perry County Auditors by alleging that auditors in this Commonwealth have the duty to obtain information that was never intended by the statutory language of 16 P.S. §1721 or 16 P.S. §1724. Second, the compliant does not make any allegation that the sheriff’s actions have caused the auditors to fail in performing their statutory duty to audit.

County auditors in this Commonwealth are required to “audit, settle and adjust the accounts of the county, and make an annual report thereof, on or before the first day of the following July, to the court of common pleas, unless upon due cause shown the court shall grant an extension of time therefor. Said report shall be in detail, showing distinctly and separately all receipts and expenditures of the several offices, and all debts and accounts due, and the amount raised from each source of revenue, and the expenditures in detail and classified by reference to the object thereof, together with a full statement of the financial conditions of the county, and a statement of the balance due from or to such county officers.” 16 P.S. § 1721(a).

A plain reading of the statute reveals that county auditors are only required to conduct a financial audit. They are required to audit “receipts and expenditures.” The statute does not expand their duties to conduct a performance audit, nor are they tasked with conducting a quality control audit. Had the legislature wished to provide county auditors with additional duties, or if the legislature had intended for auditors to have access to additional information in the possession of those county officials subject to an audit, those requirements would have been spelled out in the County Code.

The subject complaint alleges that the plaintiffs cannot perform their duties “unless the auditors review the original, unredacted records where the sheriff records the receipt and disbursement of such fees.” Complaint, P.4, ¶17. However, the auditors fail to support this claim with any facts that relate the redacted information to their obligation to audit the sheriff’s financial records. Nor is it alleged that there was ever an unsuccessful attempt made at an audit, with the failure being attributed to the sheriff’s withholding of the sought after information. In other words, the complaint does not allege any facts that connect the alleged inability to audit to the redacted information. Thus, the complaint appears to be nothing more than a fishing expedition for information unrelated to the plaintiffs’ statutory duty to audit.

We agree that the sheriff is obligated to provide the auditors with documentation sufficient for the auditors to perform their duties, but the sheriff is obligated to likewise comply with the law insofar as he must protect the confidentiality of information contained in his records. Therefore, absent facts that make it necessary for the auditors to have the names and addresses of the applicants pursuant to the uniform application for a Pennsylvania license to carry firearms, there is no basis for declaratory relief.

Accordingly, we will sustain the preliminary objection in the nature of a demurrer filed by defendant and dismiss the complaint.

      . Defendant has also raised preliminary objections pursuant to Pa.R.C.P. 1028(a)(2), 1028(a)(3), 1028(a)(5) and 1028(a)(8).


author: WILLIAMSON, J.,

text:
    Laing v. D.E. & S. Properties Inc.

      C.P. of Monroe County,
    No. 9355 CIVIL 2014

      Geoffrey S. Worthington, for plaintiff.

      Joseph P Hanyon, for defendant.
    Jan. 12, 2015
   WILLIAMSON, J.,

This matter comes before the court on defendant’s preliminary objections to plaintiff’s complaint. Plaintiff filed suit seeking relief for breach of warranty, breach of contract, and violation of the Unfair Trade Practices and Consumer Protection Law (UTPCPL). Plaintiff alleges that defendant performed defective work in the house it built for plaintiff in 2007. Plaintiff also alleges that the defendant caused a well to be placed closer to the on-lot septic system than permitted by the Department of Environmental Protection (DEP) and regulations of 25 Pa. Code Section 73.13. Plaintiff also alleges the defendant concealed the actual well location and represented the well was outside of the minimum distance required from an on-lot septic system. Plaintiff seeks unspecified damages in excess of $50,000.

The defendant filed timely preliminary objections. Defendant alleges under Pa. R.C.P. 1019(f), that plaintiff has failed to state specific damages. Plaintiff’s counsel stated at argument that specific amounts for damages are known and can be provided. We find such specific amounts should be included in the complaint and will grant defendant’s first preliminary objection.

The defendant next alleges that the plaintiff failed to attach a copy of the underlying contract to their complaint, or cite the substance of the contract in absence of having a copy of the contract. At argument in this matter, defendant’s counsel and plaintiff’s counsel both advised that neither party has a copy of the contract. In light of this information, we will grant defendant’s second preliminaiy objection, but grant plaintiff the right to amend their complaint to state they do not have a copy of the complaint.

The defendant’s third preliminary objection was raised under Pa. R.C.P. 1028 (a)(4), alleging the complaint was legally insufficient. Defendant argues the facts as stated by the plaintiff fail to set forth a cause of action under breach of implied warranty. The defendant also alleges the UTPCPL claim lacked actual damages. We granted defendant’s first preliminary objection under 1019(f), failing to state specific damages, and will allow the plaintiff to amend her complaint. Therefore, we find this issue as to damages under 1028 (a)(4) to be moot.

We also find that plaintiff has set forth facts sufficient to constitute a claim for breach of implied warranty. We agree the issues surrounding the defective door frame, crack in foundation and a sinkhole, are not items constituting breach of implied warranty. They are issues for the breach of contract claim only, and will be considered as such.

However, the plaintiff has set forth sufficient grounds for breach of implied warranty as to the location of the well in relation to the septic system. Locating a well closer to a septic system is violative of DEP regulations and the Pennsylvania Code (and likely local agency requirements). Although the plaintiff may be getting water from the well, the allegations show the well location is not legal. There is no allegation that plaintiff is currently prohibited from using the well, but enforcement could happen, preventing the use of this well. We agree the residence could be uninhabitable as a matter of law due to the alleged illegal well placement. As it is possible enforcement may occur, we find plaintiff has set forth enough facts regarding the well placement, to survive the preliminary objection stage of this matter. We will dismiss defendant’s preliminary objection under Pa. R.C.P. 1028(a)(4).

Defendant’s final preliminary objection under Pa. R.C.P. 1028(a)(6) alleges that the contract calls for alternative dispute resolution. As no copy of the contract exists on the record showing such agreement, defendant’s preliminary objection will be dismissed.

ORDER

And now, this 12th day of January, 2015, following argument and submission of briefs on defendant’s preliminary objections, it is ordered and decreed as follows:

1. Defendant’s preliminary objection under Pa. R.C.P. 1019(f), failure to state specific damages, is sustained. Plaintiff shall have twenty (20) days from the date of this order to file an amended complaint.

2. Defendant’s preliminary objection under Pa. R.C.P. 1019(i), is SUSTAINED. Plaintiff shall have twenty (20) days from the date of this order to amend their complaint to attach a copy of the contract, or allege why they cannot do so and state the general substance of the contract.

3. Defendant’s preliminary objection under Pa.R.C.P. 1028(a)(4) is sustained as to the claims for breach of warranty for the door frame, foundation crack and sinkhole. All other allegations of this preliminary objection are denied.

4. Defendant’s preliminary objection under Pa. R.C.P. 1028(a)(6), failure to request alternative dispute resolution as provided in the contract is denied and the preliminary objection is dismissed.


text:
    Kemp v. Mutual Benefit Insurance Co.

      C.P. of Monroe County,
    No. 906 CIVIL 2014

      Kevin P. Foley, for plaintiffs.

      Norman D. Namey, for defendant.
    Jan. 14, 2015
   WILLIAMSON, J.,

This matter comes before us on a motion to sever and stay discovery on plaintiffs’ bad faith claims, filed by Mutual Benefit Insurance Company (hereafter “defendant”) on December 23,2014, from the underlying underinsured and uninsured motorist claims. On January 2, 2015, Vivian and Aaron Kemp (hereafter “plaintiffs”) filed plaintiffs’ brief in opposition to defendant’s motion to sever and stay discovery on plaintiffs’ bad faith claims.

BACKGROUND

On June 28, 2010, Vivian Kemp (hereafter “plaintiff’) allegedly sustained injuries resulting from a motor vehicle accident on Interstate Route 80 in Allamuchy Township, New Jersey. Plaintiff was operating a 2008 Dodge Durango which involved the collision of multiple vehicles. Plaintiff states that a vehicle operated by Susan Lothian, which was traveling behind plaintiffs’ vehicle, was struck by a phantom vehicle, causing it to collide with a vehicle operated by Mickesha Guevara and plaintiffs’ vehicle, which resulted in plaintiffs’ serious injuries, losses, and damages.

At the time of this motor vehicle collision, plaintiffs were covered by an automobile insurance policy issued by defendant. This policy provided full tort coverage as well as uninsured and underinsured motorist coverage in the amounts of $250,000 per person and $500,000 per accident respectively. At the time of the accident, Susan Lothian was covered by a policy of automobile insurance, issued by GEICO, which provided bodily injury liability coverage of $15,000 per person and/or $30,000 per accident. GEICO has paid the plaintiffs the bodily injury limit of $30,000. The two other drivers of the vehicles involved in this collision could not be located. Plaintiffs allege that the damages to the plaintiff resulting from this accident far exceed this third-party liability coverage provided by GEICO.

Plaintiffs allege that their previous attorney sent notice to defendant on November 14, 2012, about the pending resolution of their third-party liability claim against Susan Lothian and plaintiffs’ intention to pursue claims against defendant under the plaintiffs’ policy. Plaintiffs state that on January 3, 2012, they provided defendant with a Longworth Letter. Plaintiffs allege that on February 27, 2013, Susan Romano sent a letter to them stating that defendant’s counsel would be contacting plaintiffs to set up an examination of plaintiff under oath and an independent medical examination. After resolving a personal jurisdiction issue in New Jersey, present counsel for the plaintiffs made formal demand for payment of uninsured and/or underinsured motorist benefits to counsel for defendant on December 17, 2013. Plaintiffs believe that it is due to bad faith that neither the defendant nor their counsel requested a statement under oath, a medical examination, and/or a request for additional medical records during the period from February 27,2012 through December 17, 2013.

DISCUSSION

Plaintiffs’ underlying complaint sets forth three counts. The first count seeks recovery of underinsured motorist benefits from defendant. The second count seeks recovery of uninsured motorist benefits from defendant. The third count seeks recovery of bad faith damages, under the Pennsylvania Bad Faith Statute, 42 PA.C.S.A. § 8371. Defendants’ present motion seeks to sever the bad faith claims from the contractual claims, along with seeking to stay discoveiy on the bad faith claims until the resolution of the contractual claims.

First, we will address the issue of whether to sever the bad faith claims from the contractual claims. The court, in furtherance of convenience or to avoid prejudice, may, on its own motion or on motion of any party, order a separate trial of any cause of action, claim, or counterclaim, set-off, or cross-suit, or of any separate issue, or of any number of causes of action, claims, counterclaims, set-offs, cross-suits, or issues. Pa. R.C.P. No. 213 (b). The court should base it’s decision on a case-by-case basis.

In Orsulak v. Penn National, this court stated: “Evidence put forth in the bad faith claim for the court to consider would likely confuse the jury and its role in the proceedings. Certain information disclosed for purposes of the bad faith claim could also prejudice the jury against [the defendant].” Orsulak v. Penn National, No. 4255-CV-2011 (C.P. Monroe Co. Jan. 14, 2013, Williamson, J.). In support of severance, the defendant cites a federal court case from the Western District of Pennsylvania that denied a defense motion to bifurcate breach of contract and bad faith claims in an underinsured motorist action. See Craker v. State Farm Mutual Auto Ins. Co., 2012 WL 3204214 (W.D. PA 2012). In Craker, a case with persuasive authority only, the court determined that the only issue in dispute was the valuation of the claim, which was relevant to both the breach of contract and bad faith claims. Id. Ultimately, the court in Craker determined the prejudice presented did not outweigh the expediency of hearing the matters together, especially due to the overlap of issues and evidence. Id. We note this issue remains unresolved in Pennsylvania with no appellate authority and a split by many Courts of Common Pleas of whether to grant bifurcation or not.

As in Orsulak and Craker, this case involves a motion to sever bad faith claims against an insurance company from contractual claims against that insurance company. We find the defendant in this case would be prejudiced by joining the bad faith claims with the contractual claims during the trial. There may be information that is relevant to the bad faith claim that is not relevant to the contractual claims which would prejudice defendant in the eyes of the jury. There is no indication at this time that the need for judicial economy outweighs the prejudice, or that all issues are resolved except the valuation of plaintiffs injuries as cited in Craker. Furthermore, for the reasons set forth in our prior decision in Orsulak, supra., we will grant the motion to sever the bad faith claim in this matter.

Next, the defendant argues that this court should stay discovery with respect to the bad faith claims pending resolution of the contractual claims. The defendant argues that, if the defendant is required to produce and disclose information concerning its handling of plaintiffs’ contractual claims at the same time that it is defending the contractual claims, the ability of defendant to litigate and defend the contractual claims will be irreparably harmed.

In Gunn v. Automobile Ins. Co. of Hartford, CT, the Superior Court of Pennsylvania stated:

“’[The] trial court order, denying automobile insurer’s motion to stay insured’s bad faith claim and preclude discovery pertaining only to that claim until resolution of insured’s breach of contract claim, did not implicate a right deeply rooted in public policy so as to warrant immediate appellate review as collateral order in action arising from insurer’s nonpayment of underinsured motorist (UIM) benefits; insurer’s concerns that courts and parties would be required to engage in protracted discovery and preparation for litigation that might prove unnecessary did not outweigh countervailing interests of avoiding piecemeal litigation or delay.”

Gunn v. Auto. Ins. Co. of Hartford, Connecticut, 2009 PA Super 70, 971 A.2d 505 (2009).

In Orsulak v. Penn National, this court granted the defendants’ motion to sever the bad faith claim from the contractual insurance claims, but denied the defendants’ motion to stay discovery on the bad faith claim pending resolution of the contractual claims. Orsulak v. Penn National, supra. The reasoning was that staying all discovery with respect to the bad faith claim would cause unnecessary delay and there were better measures the court could take to avoid prejudice during the discovery process once prejudice was shown. Id. See also Cocuzza v. Castro, No. 406 Civil 2012 (C.P. Monroe Co., July 12, 2012, Zulick, J.) (Court denied preliminary objections and allowed case to remain consolidated until discovery was completed).

Similarly, in this case, staying discovery on the bad faith claims until after the resolution of the contractual claims would unfairly delay a conclusion of all proceedings. Staying discovery on the bad faith claims would cause unnecessary delay and there are more efficient measures this court can use to protect the defendant from prejudice while not ordering a blanket freeze on all discovery with respect to the bad faith claims.

At this time in the litigation, the defendant has failed to demonstrate any actual prejudice to dual discovery. If actual prejudice can be shown as the discovery process continues, this court can always bar certain discovery as it pertains to the bad faith claims until the resolution of the contractual claims. As in Gunn and Orsulak, the defendant’s concerns regarding protected discovery when it comes to the bad faith claims do not outweigh the countervailing interests of avoiding piecemeal litigation or delay by staying all discovery with respect to the bad faith claims pending resolution of the contractual claims.

Therefore, defendant’s motion to sever the bad faith claims from the contractual claims is granted; however, defendant’s motion to stay discovery with respect to the bad faith claims pending resolution of the contractual claims, is denied.

ORDER

And now, this 14th day of January 2015, upon motion of defendant mutual benefit insurance company to sever and stay discovery on plaintiffs’ bad faith claims, it is ordered and decreed as follows:

1. Defendant’s motion to sever plaintiffs’ bad faith claims is granted.

2. Defendant’s motion to stay discovery on plaintiffs’ bad faith claims is denied.


text:
    In re Estate of Haffner

      C.P. of Monroe County,
    No. 77 O.C. 2013
    Jan. 16, 2015
   WILLIAMSON, J.,

This matter is currently before the court on the executrix’s petition for adjudication/statement of proposed distribution filed on October 17, 2014. This court had previously heard testimony on March 21, 2014 concerning decedent, Miriam Haffner’s Will, election to take marital interest against the will, petition to remove executor and trustee, and petition for partition. Those matters were resolved by a stipulation of the parties and motion to discontinue filed April 9, 2014 and confirmed by order of this court filed April 11, 2014. Said order left open the right of the parties to request a hearing and approval of a full and final accounting. We will treat this as a request for approval of accounting, with objections of beneficiaries.

The executrix requested a hearing to confirm the final accounting and proposed distribution, and to determine the charitable interests for the bequest the decedent made in her codicil. A hearing thereon was scheduled and conducted on January 8, 2015. The executrix provided notice to all parties, including the Commonwealth of Pennsylvania, by the office of attorney general, since there is a charitable interest in this estate. Jeannie Jennings, a beneficiary of the estate filed a list of her concerns on November 14,2014.

The executrix, Karen Anthony, and her counsel, Connie Merwine, Esquire attended the hearing, along with Max J. Haffner, Jeannie Jennings and Deanna Lyles, who were the children of the decedent and beneficiaries of the estate. Jeannie Jennings is also named as co-trustee with Karen Anthony, of any charitable trust created by the decedent’s codicil. Karen Anthony is also a child of decedent and beneficiary of the estate. David Haffner, a child of decedent and beneficiary was not present despite notice given. Max F. Haffner, decedent’s husband and a beneficiary also was not present despite notice given. No one from the office of attorney general appeared either despite notice given.

BACKGROUND

The decedent Miriam Haffner died on December 27, 2012. She left to survive her, the above named children and a husband, Max F. Haffner. She had a will dated February 13, 2012, in which her estate was to be divided as follows:

1. Real property at 3162 Overlook Drive, Saylorsburg, Chestnuthill Township, Pennsylvania equally to Max F. Haffner (50%) and her children Karen Anthony, Max J. Haffner, Deanna Lyles, David Haffner, and Jeannie Jennings (50%).
2. The residuary of the estate to her five (5) children named above.

The decedent then executed a handwritten codicil, on December 10, 2012 in which she left one half of her mesothelioma litigation proceeds to a charitable trust with the remaining one-half of the proceeds to go into her residuary estate. The decedent appointed Karen Anthony and Jeannie Jennings as co-trustees of any charitable trust and they both signed as witnesses to the codicil. It was acknowledged at time of hearing that Max F. Haffner had a loss of consortium claim as part of the mesothelioma litigation.

The parties resolved all issues with Max F. Haffner by the stipulation entered of record with the court, including his interest in the mesothelioma litigation. Pursuant to the stipulation, Max F. Haffner was to receive the Brodheadsville, Pennsylvania property, $50,000 from the estate’s share of the mesothelioma funds, and the Chevrolet Corvette. The five children are to equally split the remaining residuary estate, which includes the Kunlcletown, Pennsylvania property (previously titled into Karen Anthony’s name), the remaining portion of one-half the mesothelioma proceeds (with the other one-half going to a charitable trust), and personal property. The stipulation of the parties requires Karen Anthony to list the Kunkletown property for sale (she has) and that Jeannie Jennings receive the first $20,000 from the sale (less expenses needed to correct any repair deficiencies) for work she had done to the basement.

At hearing, the beneficiaries raised the following issues:

1. The amount of the executrix’s commission;
2. The amount and/or substance of the attorney’s fees charged to the estate;
3. The family exemption being split between David Haffner and Jeannie Jennings;
4. The charities to receive the mesothelioma litigation proceeds;
5. Taxes being paid from the estate on joint accounts or non-probate assets;
6. The amount of the deductions to Jeannie Jennings’ share of the house proceeds when sold;
7. Deeding the Kunkletown property to all five (5) beneficiaries;
8. Distribution of personal property.

Some of the issues were narrowed down and resolved at the time of hearing, and others must be resolved by this court.

DISCUSSION

The executrix has filed an accounting for the estate and seeks approval thereon together with an order regarding treatment of the charitable bequest. The first issue raised by Max, Deanna and Jeannie (objectors) is the amount of the commission being claimed by Karen as executrix. The proposed commission is $61,282.72. The objectors disagreed with the amount sought. Max testified Karen did not do enough to receive such an amount. Deanna testified that she did not agree with any of the actions taken by Karen and that the commission was inappropriate. Jeannie also felt the amount of the commission was excessive.

In response, Karen Anthony testified about the work she did on behalf of the estate, including dealing with issues related to the beneficiaries’ father, Max F. Haffner and his filing for bankruptcy in Florida; working with the litigation firm on the mesothelioma settlements; getting the Kunkletown house ready for sale; investigating matters pertaining to the bequest to the charitable trust; preparing for and attending the court hearings on the litigation in this matter; transferring assets to Max F. Haffner per the family stipulation; and dealing with a complex estate currently valued at $1,021,378.74, with other monies expected from the mesothelioma litigation. The commission sought is a flat amount of 6% of the current gross value of the estate.

We have previously set forth analysis of the appropriateness of personal representative fees. See In re: Estate of Lee O’Levich, No. 174 O.C. 2011 (O.C. Monroe County — 10/24/12 — Williamson, J.). We also note that a person seeking compensation for services as a fiduciary, such as an executrix, must establish facts demonstrating they are entitled to such compensation. Feise Estate, 21 Fid .Rep. 2d 317 (2001). The compensation of a personal representative shall be reasonable under the circumstances. 20 Pa. C.S.A. §3537. The determination of whether compensation of an executrix is reasonable is within the discretion of the trial court. See Strickler Estate, 354 Pa. 276, 47 A.2d 134 (1996).

This court has previously set forth a fee schedule, referenced in Johnson Estate, 4 Fid. Rep. 2d 6 (O.C. Del. Ct. 1983), for a personal representative that was fair and reasonable under the facts of that case. See Estate of Lee O’Levich, supra. That schedule set forth a percentage basis for a fee which eliminates having to calculate an hourly rate, specific number of hours, and comparing a subjective analysis of one person’s time being worth more or less than someone else’s time. That fee schedule is as follows:

We find that fee schedule to be fair and reasonable in most cases. To justify fees higher than the schedule amount, there must be specific evidence showing the administration of the estate was extraordinary; otherwise, the above fee schedule would be fair and reasonable. See Estate of Lee O’Levich and Feise Estate, supra. Likewise, any deviation down from such schedule would require objectors to show an extraordinary lack of time or effort to administer the estate. Some factors to determine if the administration of the estate was extraordinary includes the difficulty of problems encountered, the degree of responsibility, and if more work or complex issues were encountered than in the average estate. Id.; LaRocca Estate, 431 Pa. 542, 246 A.2d 337 (1968). Here, the executrix has requested a flat percentage basis of 6% of the gross estate of $1,021,378.74 as a commission. The Monroe County Orphans’ Court historically analyzes the amount of commissions as set forth above and in Johnson Estate, supra.

We find that although the executrix spent a lot of time, and there were several issues, including the decedent’s husband’s bankruptcy filing, a charitable trust provision, and litigation with beneficiaries, none of the matters arise to extraordinary circumstances warranting a fee in excess of the above fee schedule, the bankruptcy and charitable trust issues can be addressed by legal counsel, and litigation is a common risk these days in estate matters. We also note the litigation was ultimately resolved by the parties.

At the same time, we do not find that there was an extraordinary lack of time or effort of the executrix warranting a fee less than the schedule amount. There was no evidence of dilatory or bad-faith action taken by the executrix. While the objectors may not have agreed with certain actions of the executrix, or the amount of the commission claimed, or the resulting settlement, there was no evidence that the executrix did nothing as claimed or that she was at fault for anything. The decedent named Karen Anthony to serve as executrix and she is entitled to compensation. That fact sometimes conflicts with the perceptions other family members may have as to the duties and responsibilities of a personal representative, and the feeling that a fellow family member and beneficiary should not be paid extra for their duties as personal representative. We often see existing family tensions increased when there are feelings of a lack of fairness or entitlement in an estate. However, we do not see any evidence warranting a lesser commission than the one we will ultimately award.

This court finds the schedule of fees set forth above is fair and reasonable in this matter. As such, the executrix would be entitled to a commission of $28,160.15 on probate assets (which were $838,671.86) and $1,827.06 on joint and non-probate assets (which were $182,706.88) for a total commission of $29,987.21. This is the amount that is fair and reasonable as a commission payable to the executrix and we will enter a decree consistent with this opinion.

The objector’s/beneficiaries also questioned the attorney’s fees charged to the Estate in this matter. There was no specific complaint as to the amount charged; rather they questioned whether all of the fees were attributable to the estate, or whether some were for the charitable trust. Attorney Merwine, as attorney for the estate, acknowledged the fees were all for the estate and any work that was billed and related to the trust was for the work done on behalf of the estate to advise how to fund the trust. We find no evidence that any of the attorney’s fees billed were for non-estate related matters. As there were no other challenges raised as to the attorney’s fees, we will approve the amount requested.

The objectors/beneficiaries requested that the family exemption be paid solely to Jeannie Jennings as the appropriate family member so entitled. The executrix and counsel for the estate agreed at time of hearing and stipulated to the same. We will adjust the family exemption to reflect Jeannie Jennings only.

Both the executrix and the objectors expressed a willingness to make a one-time donation of one-half of all of the mesothelioma funds received to a charitable cause the decedent would have wanted. We note the decedent left no express indication in her will or codicil of what charitable cause should receive the donation. Nor did the decedent express how to fund or in what manner to distribute funds from the charitable trust. We also note that the Pennsylvania Attorney General’s Office, tasked with oversight of charitable bequests, did not enter an appearance nor provide any guidance in this matter.

The executrix and objector Jeannie Jennings as named co-trustees of any charitable trust, initially agreed to donate equally to the following charities: The Joyce Meyer Ministries and Shores of Grace. Both assist people in third world countries. These were charitable causes that would have been important to the decedent. At time of the hearing, Ms. Jennings indicated she still agreed with this proposal. The executrix/co-trustee testified that she now preferred an equal one-third split between the Joyce Meyer Ministries, Shores of Grace, and Missions Haiti Helping Kids. She stated the Missions Haiti needed funds to build a new orphanage for displaced children in Haiti. The executrix also testified that if not granted in that manner, then she would like one-half to go to the Joyce Meyer Ministries, and the other one-half to be equally divided between Shores of Grace and Missions Haiti Helping Kids.

We find creation of a charitable trust to distribute the monies would not achieve the true interests of the decedent nor would it be the most efficient and economical means of distribution. For instance, a trust would need to be created, significant time and expense incurred for same, preparation and filing of annual tax returns, related advice, etc. We do not believe this was the decedent’s intent based upon the simple handwritten codicil she drafted and signed. The best result to honor the decedent’s intentions would be an outright donation of the monies to those charities selected by the named co-trustees, Karen Anthony (executrix) and Jeannie Jennings. These donations can be made all at one time, or as each settlement distribution is received by the estate. This will maximize the amount of the funds actually donated to the charitable causes. As no issue was raised by the Pennsylvania Attorney General’s Office, or by an interested party as to handling the charitable bequests in this manner, it shall be so ordered.

Finally, we find the co-trustees are in the best position to know what their mother’s wishes and intentions were regarding the charitable bequest. The co-trustees initially agreed as to the charities and division of proceeds to such charities. The only disagreement now is Karen Anthony’s request that a portion of the monies go to a charity to which co-trustee Jeannie Jennings does not agree.

As the decedent entrustedthe two co-trustees to distribute the charitable bequests, we find their initial agreement to be the best resolution. We find the parties initially agreed on the equal distribution to the Joyce Meyer Ministries and Shores of Grace. We further find the decedent would have wanted the co-trustees to agree, rather than leave it up to third parties or the court. Therefore, we will direct the charitable distributions shall be made equally to the Joyce Meyer Ministries and Shores of Grace.

The next objection is to payment of inheritance taxes on joint or non-probate assets from the estate. There were several joint accounts/non-probate accounts and assets which the estate paid the inheritance taxes that were due. Objectors argue it should be paid by the person who received the joint account or non-probate asset. This is a matter in which the will controls. Decedent’s will states:

“4. Death Taxes. I direct that all transfer, estate, inheritance, succession, and other death taxes, not including generation-skipping transfer taxes, which become payable by reason of my death, including interest and penalties, with respect to all property included in the computation of these death taxes, whether or not passing under this will, shall be paid from the principal of my residuary estate, without apportionment.” (emphasis added)

This language dictates the decedent’s intent and controls payment of inheritance taxes. This provision of the will requires that all inheritance taxes due on both probate, non-probate, and joint property, that arise out of the death of the decedent, shall be paid from the estate, Therefore, the payment of inheritance taxes from the estate was proper.

The next objection questions the amount of any deduction to the share of Jeannie Jennings for repairs to the basement necessary at the Kunkletown house due to any work she had done there. At time of the hearing, the deduction was proposed to be $549 for electrical work. Ms. Jennings had no objection to this amount and agreed with that deduction to her share.

The next issue was raised by Jeannie Jennings who asked that the Kunkletown house be deeded in all five (5) beneficiaries’ (children’s) names until time of sale. Currently it is deeded in Karen Anthony’s name with the agreement it is to be sold and proceeds divided among decedent’s five (5) children. The property is under a listing agreement and Karen Anthony is actively pursuing buyers. The price was recently reduced and some repair work was performed on the property. If the title were transferred to the beneficiaries as requested, there would be deed preparation and recording costs. It could also be problematic if a buyer is found, because the beneficiaries already disagree on matters. Placing all five (5) names on the deed, will likely lead to an impasse. The matter could wind up subject to a partition action as opposed to being resolved more economically and expeditiously in Orphans’ Court. Therefore, it would not be in the best interests of the estate and beneficiaries to change the title to the property at this time. The intent of the parties’ settlement agreement is being undertaken and we will not disturb it at this time.

The final objection was more or less withdrawn at time of hearing as well. The objectors stated that the executrix, Karen Anthony, claimed she did not receive two (2) small items of personal property (measuring cup and little figurines). The executrix did not request court intervention on the matter, and all parties appear satisfied, for now, with the personal property they received. This is a minor issue that does not need court intervention at this time. For the reasons set forth above, we will enter an order approving the first and final account with modifications, and with directives concerning the charitable bequests.

DECREE

And now, this 16th day of January, 2015, following a hearing on objections to the accounting and approval of charitable distributions, the court orders as follows:

1. The amount of the executrix commission to be charged to the estate shall be reduced to $29,987.21.

2. The amount of the attorney’s fees charged to the estate is fair and reasonable.

3. The family exemption of $3,500 shall be paid to Jeannie Jennings.

4. The one-half of the mesothelioma proceeds payable to a charitable trust per the codicil shall be divided equally between the Joyce Meyer Ministries and shores of grace charity. No separate charitable trust need be created. The co-trustees named in the codicil and the executrix shall either pay the monies directly to the charities all at one time, or periodically as funds are received by the estate.

5. The objection to payment of inheritance tax due on joint property and non-probate assets from the residuary estate is denied.

6. The objection as to the deduction of $549 from the share of Jeannie Jennings for repairs is denied as moot.

7. The objection and request that the Kunkletown property be deeded to all five of decedent’s children/ beneficiaries is denied.

8. The objection concerning distribution of personal property is denied as moot.

      . Deanna also testified that she reluctantly signed the settlement agreement and was unhappy with her father getting the Brodheadsville house.

      . Affirmed on appeal by non-precedential decision In re: Estate of Lee O’Levich, No. 385 EDA 2013 (Pa. Super.9/25/13).


author: ZULICK, J.,

text:
    Cicardo v. Mangual

      C.P. of Monroe County,
    Nos. 7668 CV 2010; 11522 CV 2010

      Terrence Nealon, for plaintiff.

      Lisa Balestrini, for defendant.
    Jan. 22, 2015
   ZULICK, J.,

This case comes before the court on defendants Shawn Bates and Kyle Garrity’s motions for summary judgment. Plaintiff filed complaints on February 6,2013 at No. 11522 Civil 2010, and on July 2, 2014 at No. 07668 Civil 2010. Plaintiff alleges that Jacqueline Tara Cicardo, a minor, was injured in a collision while riding in a vehicle driven by Jonathan Mangual, now deceased. Jonathan Mangual was intoxicated after attending two house parties. Plaintiff further alleges that both Shawn Bates and Kyle Garrity, minors at the time, are liable to Ms. Cicardo as social hosts for furnishing alcohol to Jonathan Mangual shortly before the collision. The case was listed for argument on January 5, 2015. Mr. Bates filed a brief, which Mr. Garrity adopted by reference, and all parties argued their positions on that date.

DISCUSSION

Summary judgment may be granted pursuant to Pa. R.C.P. 1035.2 where there is no genuine issue of material fact and where the moving party is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 468-69 (Pa. 1979). 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. Pa. R.C.P. 1035(b); Cosmas v. Bloomingdales Bros., Inc., 660 A.2d 83, 85 (Pa. Super. 1995).

Summary judgment may be granted only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co. Inc., 562 A.2d 279, 280 (Pa. 1989). The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Davis v. Pennzoil Co., 264 A.2d 597 (Pa. 1970). Moreover, the burden is on the moving party to prove that no genuine issue of material fact exists. Long v. Yingling 700 A.2d 508, 512 (Pa. Super. 1997). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson, 412 A.2d at 469.

In response, the non-moving party may not rest upon the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. Phaff v. Gerner, 303 A.2d 826 (Pa. 1973). The court must also accept as true all well-pled facts contained in the non-moving party’s pleadings. Mattia v. Employers Mut. Cos, 440 A.2d 616 (Pa. Super. 1982); Ritmanich v. Jonnel Enters. Inc., 280 A.2d 570 (Pa. Super. 1971). A general denial is unacceptable and deemed an admission where it is clear that the defendant has adequate knowledge and that the means of information are within the control of the defendant. Elia v. Olszewski, 84 A.2d 188 (Pa. 1951). While all doubts are resolved against the moving party, summary judgment should be granted where the moving party’s right is “clear and free from doubt.” Martin v. Sun Pipe Line Co., 666 A.2d 637, 639 (Pa. 1995).

Defendants Shawn Bates and Kyle Garrity move for summary judgment, asserting that they have no liability to the plaintiff as social hosts, as they were minors at the time alcohol was served to Jonathan Mangual, who was 17 years old at the time. Complaint ¶17. The law concerning social host liability as it relates to minors is settled in Pennsylvania. While adults have no duty as social hosts to another adult, the Pennsylvania Supreme Court decided in Congini by Congini v. Portersville Valve Co., 470 A.2d 515 (Pa. 1983) that an adult social host may be liable for furnishing alcohol to a minor. The supreme court then decided in Kapres v. Heller, 640 A.2d 888 (Pa. 1994) that a minor cannot be liable as a social host to another minor:

[T]he plaintiff argues that we should hold the minor defendants to the standard required of adults in Congini, while providing to him the protections specially afforded minors under the same principle. The illogic of this argument is apparent on its face. Both the plaintiff and the defendant are considered under the law incompetent to handle alcohol. Both the plaintiff and the defendant would be responsible under the law for their own actions in furnishing or consuming alcohol. Thus, it is more logical and consistent with the prevailing view on social host liability in this Commonwealth to find that one minor does not owe a duty to another minor regarding the furnishing or consumption of alcohol.

Id. at 891.

Mr. Bates and Mr. Garrity allege they were minors at the time of the collision. Plaintiff contends both furnished alcohol to Jonathan Mangual, who was also a minor at the time. Mr. Mangual later drove a vehicle while intoxicated, causing the collision which injured the minor plaintiff. Mr. Bates and Mr. Garrity were social hosts, as they allegedly furnished alcohol to Mr. Mangual at two house parties.

Mr. Bates and Mr. Garrity have provided their driver’s licenses as exhibits. Their dates of birth indicate that they were 20 years of age at the time of the collision. Plaintiff does not dispute the defendants’ ages.

Plaintiff argues in her brief that there is a distinction between minors aged 17 and younger, and minors between the ages of 18 and 21. In this case, the minor defendants were between ages 18 and 21 at the time of the collision. Jonathan Mangual and the minor plaintiff were 17. Plaintiff argues that, even if there is no social host liability between minors, that rule should apply only to similarly situated individuals, and that individuals under 18 and individuals between 18 and 21 are not similarly situated. Plaintiffs cite the dissent in the superior court’s decision in Kapres v. Heller, 612 A.2d 987 (Pa. Super. 1992), and the commonwealth court’s opinion in Muntz v. Commonwealth; Dept. of Transp., 630 A.2d 524 (Pa. Cmwlth. 1993). The commonwealth court agreed with the dissent in Kapres, 612 A.2d 987, deciding that a duty exists for minor social hosts. The parties’ briefs did not cite the Pennsylvania Supreme Court decision in Kapres which affirmed the superior court’s decision.

The supreme court’s decision in Kapres resolved the split between the commonwealth court and the superior court and settled the question. The holding in Kapres did not distinguish between minors under 18 and minors under 21. The statutory language in 18 Pa. C.S.A. § 6310.1 (Selling or furnishing liquor or malt or brewed beverages to minors) likewise does not differentiate between minors’ ages. The bright line rule established in Kapres is that “one minor does not owe a duty to another minor regarding the furnishing or consumption of alcohol.” Kapres, supra at 891.

As plaintiffs have not challenged the defendants’ dates of birth, there is no issue of material fact as to their ages at the time of the collision. Both Mr. Garrity and Mr. Bates were minors at that time and neither are liable as social hosts under Pennsylvania law. Defendants Kyle Garrity and Shawn Bates’ motions for summary judgment will be granted.

ORDER

And now, this 22nd day of January, 2015, upon consideration of defendants Shawn Bates and Kyle Garrity’s motions for summary judgment, plaintiffs’ response thereto, legal briefs, and arguments of the respective parties, it is ordered that the defendants’ motion for summary judgment is granted.

      . A petition for allocator was granted by the supreme court in the Muntz case, but no decision was made on the appeal. However, in Sperando v. Com. Dept. of Transportation, 630 A.2d 532 (Pa. Cmwlth. 1993), appeal granted, order reversed by Sperando v. Com., Dept. of Transp., 643 A.2d 1079 (Pa. Jul 11, 1994) (NO. 633 E.D. 1993), a seventeen year old minor allegedly served alcohol to an eighteen year old minor, who caused an auto collision. The seventeen year old was sued on a social host theory. The trial court granted summary judgment, relying on the superior court’s decision in Kapres, supra. The commonwealth court reversed, relying on the Muntz decision. The supreme court granted allocator and reversed the commonwealth court, relying on its decision in Kapres, supra.

      . § 6310.1. Selling or furnishing liquor or malt or brewed beverages to minors (a)
      Offense defined. — Except as provided in subsection (b), a person commits a misdemeanor of the third degree if he intentionally and knowingly sells or intentionally and knowingly furnishes, or purchases with the intent to sell or furnish, any liquor or malt or brewed beverages to a person who is less than 21 years of age.
      18 Pa. C.S.A. §6310.1(a).