source: Caselaw Access Project

author: MINORA, J.,

license: Public Domain

text:
    Guffey v. Kyriazis

      Kevin P. Foley, for plaintiffs.

      Edward S. Neyhard, for defendants.
    February 3, 2014
   MINORA, J.,

— Before the court is defendant’s petition for appeal of Special Trial Master (STM) for discovery, attorney Henry Burke’s order dated July 23, 2012. In that order, STM Burke granted plaintiff’s motion to strike defendant’s objections to plaintiff’s interrogatories regarding defendants’ expert, Dr. Amir Fayyazi (“Dr. Fayyazi”) and his medical group VSAS (“VSAS”). For the reasons that follow, defendant’s petition for appeal of the STM’s order is denied and dismissed.

FACTUAL AND PROCEDURAL HISTORY

This case arises from a motor vehicle accident which occurred on November 5, 2007 at 2:35 a.m. The plaintiff William Guffey was driving and plaintiff, Joyce Guffey, was a passenger in their 2003 Ford Escape, stopped at a traffic light on the intersection of North Main Avenue and Wood Street in Scranton, Pennsylvania. At that time, defendant Steven Kyriazis, operating a vehicle jointly owned by him and defendant Amy Marta, rear-ended the plaintiff’s vehicle, pushing the vehicle into the intersection. Plaintiff’s complaint alleges the defendant Kyriazis fled the scene of the accident to conceal his intoxication. Defendant Kyriazis allegedly advised defendant Amy Marta Kyriazis of what had happened and sent her back to the scene of the accident to “cover up” the fact that he, Kyriazis, was operating the vehicle.

Plaintiff’s complaint also alleges that defendant Amy Marta negligently entrusted her vehicle to defendant Kyriazis, knowing that he was under the influence but allowing him to operate her vehicle nonetheless. Both plaintiffs suffered aggravations of pre-existing neck injuries as a result of the accident.

On November 21,2008, defendant Kyriazis pled guilty to a DUI and admitted in his guilty plea colloquy that he was aware of and knew that plaintiffs were injured in the collision and fled the scene.

Defendants filed preliminary objections to plaintiff’s complaint on May 15, 2009, which were sustained in part and denied in part. Plaintiffs filed a certificate of readiness for jury trial on November 2, 2011. The certificate of readiness was subsequently stricken by order of this court on November 18, 2011.

On March 16, 2012, defendants filed a motion for partial summary judgment. On September 21, 2012, the court granted partial summary judgment in favor of the defendants, ruling that Amy Marta Kyriazis did not breach a negligent entrustment duty to plaintiff, and that there was not sufficient evidence to show that Steven Kyriazis was intoxicated at the time of the accident in question. On October 2, 2012, plaintiffs filed a motion to amend the order for purposes of taking an interlocutory appeal. Defendants filed a response to the motion November 1, 2012. The court denied the interlocutory appeal by order dated December 3, 2012 and the order was sustained by the Superior Court denying the appeal attempt dated December 6, 2012.

Not content to have fought over preliminary objections, a motion for partial summary judgment and an interlocutory appeal, the parties have now decided to focus their disputes on discovery issues.

On April 7,2011, our STM issued a rule to show cause upon defendant Steven Kyriazis and his counsel Attorney Edward Neyhart why plaintiff’s motion to compel and/or sanctions should not be granted.

On May 9, 2011, a second motion to compel brought by plaintiff seeking the Main Street address for defendant Steven Kyriazis was granted by the STM with the sought after address to be provided within twenty (20) days.

Pursuant to Pa.R.C.P. 4010, plaintiff submitted to a defense medical examination performed by Dr. Fayyazi on May 24,2012. On May 25,2012, plaintiff served defendant with interrogatories regarding financial information and past litigation experiences of Dr. Fayyazi and his medical group VS AS.

On June 21, 2012, in anticipation of defendants’ objection to the interrogatories, plaintiffs filed a brief in opposition to any objections to the interrogatories defendants may have had. On July 3,2012, defense counsel provided the anticipated motion, asserting reasons why certain interrogatories were not compliant with Pa.R.C.P. 4005.

On July 23, 2012 our STM issued an order in favor of plaintiffs, overruling defendant’s objections to plaintiff’s interrogatories. This order required defendant to declare their expert to be used at trial and further required said declared expert Dr. Fayyazi to answer full, complete financial interrogatories concerning he and his medical Group VSAS, going back three (3) years no later than September 15,2012. The order did not involve information about referrals from attorneys or others. Plaintiff has not received a copy of the defense medical examination report of Dr. Fayyazi to date.

Before discussing the merits of defendant’s appeal of the July 23, 2012 order, we note that on August 29, 2013, STM Burke issued yet another order granting plaintiff’s motion to overrule defendants’ objection to plaintiff’s subpoena directed to Maria M. Espinosa and Erie Insurance Company. Defendant thereafter filed an objection to the subpoena to Erie Insurance Company and a counter argument. On December 4,2013, this honorable court overruled in part and sustained in part defendants’ objections. See order, Guffey v. Kyriazis, 2308-CV-2009 (Minora, J.).

Defendant’s appeal of the July 23,2012 discovery order is an issue separate from the merits of plaintiff’s personal injury action. Therefore, the matter may be addressed without analyzing defendant’s alleged negligence in the automobile accident. See J.S. v. Whetzel, 860 A.2d 1112 at paragraph 8 (Pa. Super. 2004). Our analysis of defendants’ appeal of the July 23, 2012 order is set forth below.

LEGAL ARGUMENT OF THE PARTIES

I. Defendant’s Argument

Defendants request that the STM Order of July 23, 2012 be overturned and that an argument be scheduled on this matter. Defendants’ appeal of the July 23, 2012 discovery order was filed August 1, 2012. Defendants claim the order does not comply with the holding by the Pennsylvania Supreme Court which analyzes discovery as it relates to expert witnesses, Cooper v. Schoffstall, 588 Pa. 505, 905 A.2d 482 (2006). Defendants do not provide specific reasons for the alleged noncompliance.

II. Plaintiff’s Argument

Plaintiffs request that this court strike defendants’ objections to the order and compel defendants to answer the interrogatories regarding Dr. Fay y azi and VS AS. A brief in opposition to defendant’s appeal of the order was filed October 1, 2013.

Plaintiffs’ counsel argues the interrogatories must be answered because based upon counsel’s past experience, Dr. Fayyazi is expected to render opinions inconsistent with plaintiffs’ treating physician’s opinions regarding causation and or severity of plaintiffs’ medical condition. See plaintiff’s brief in opposition of defendant’s appeal of the July 23, 2012 STM order, 2308-CV-2009 (Oct. 1, 2013); Supplemental exhibits offered in support of plaintiff’s motion pertaining to compelling Cooper discovery (October 31,2013). Plaintiffs additionally argue the appeal should be denied because the interrogatories are limited to income information the Cooper court ruled was “within the fair scope of relevance on the question of potential favoritism.”

LEGAL STANDARD

Limitation of Scope of Discovery and Deposition

It is well settled that trial courts possess broad discretion in setting the perimeters of discovery. See e.g., Ironworkers Saving and Loan Association, v. I.W.S., Inc., 622 A.2d 367 (Pa. Super. 1993); Kerns v. Methodist Hospital, 574 A.2d 1068 (Pa. Super. 1990). No discovery or deposition shall be permitted in Pennsylvania which (a) is sought in bad faith; (b) would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party; (c) is beyond the scope of discovery as set forth in Rules 4003.1 through 4003.6 . . . (e) would require the making of an unreasonable investigation by the deponent or any party witness. Pa.R.C.P. 4011; Berkeyheiser v. A-Plus Investigations, Inc., 936 A.2d 1117 (Pa. Super. 2007); J.S. v. Whetzel, 860 A.2d 1112 (Pa. Super. 2004). There is no definition of what constitutes unreasonable burden when considering a discovery request. The court must look at the circumstances of the action and materials sought. See McCarey v. Kennedy Memorial Hosp., 1 D.C. 3rd 443, 447 (1977). The Superior Court has, however, held it is trial court error to permit discovery requesting unfettered production of any and all forms containing information unrelated to case. J.S., 860 A.2d 1112, supra.

Relevant Material is Discoverable

Subject to Rules 4003.2 to 4003.5 inclusive and Rule 4011, “a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.” Pa.R.C.R 4003.1(a).

Information Appearing Reasonably Calculated to Lead to the Discovery of Admissible Evidence, is Also Discoverable

It is not ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Pa.R.C.R 4003.1(b); see e.g. PECO Energy Co. v. Insurance Co. of North America, 852 A.2d 1230 (Pa. Super. 2004).

Discovery with Respect to Expert Witnesses

Rule 4003.5 limits discovery of an expert witness to information “acquired or developed in anticipation of litigation.” See J.S., 860 A.2d at 1119 (internal citations omitted). Rule 4003.5 does not, however, limit discovery to the facts and opinions upon which the expert is expected to testify. Id. Pa.R.C.R 4003.5(a)(2) clearly permits the court to allow additional discovery as the court deems appropriate, but only upon cause shown. See Wood v. Glenn O. Hawbaker, Inc., 2009 WL 6924317 (Pa. Com. Pl. Lycoming Co. Oct. 29, 2009) (citing Cooper, 588 Pa. 505, supra). “This field of inquiry . . . must be limited to questions relevant to a witness’ credibility.” J.S., 860 A.2d at 1120, supra (internal citations omitted). “For example, such discovery might be warranted if there is a strong showing that the witness has been evasive or untruthful in the written discovery. Cooper, 588 Pa. at 526, 905 A.2d at 496 (internal citations omitted).

The Pennsylvania Supreme Court has stated that “a witness should be required to Tift his visor so that the jury could see who he was, what he represented, and what interest, if any, he had in the results of the trial, so that the jury could appraise his credibility.” McKenna v. Montgomery, 2005 WL 4717542 (Phila. Co. June 28, 2005) at Paragraph 6. In Cooper, 588 Pa. at 524, 905 A.2d 494-95, our Supreme Court held:
[T]he appropriate, threshold showing to establish cause for supplemental discovery related to potential favoritism of a nonparty expert witness retained for trial preparation is of reasonable grounds to believe that the witness may have entered the professional witness category. In other words, the proponent of discovery should demonstrate a significant pattern of compensation that would support a reasonable inference that the witness might color, shade, or slant his testimony in light of the substantial financial incentives...

(emphasis added); Feldman v. Ide, 915 A.2d 1208 (Pa. Super. 2007) (citing Cooper).

The Pennsylvania Superior Court has consistently permitted a party to examine an expert witness ’ relationship with counsel calling the expert, including the history and amount of compensation received by the expert from counsel. ”V. A, 860 A. 2d at 1120-21; see Troxell v. McQuay, 2009 WL 635309 (Ct. Com. Pl. April 2009); Fullam v. Miller Bros., 2013 WL 4502718, at *5 (Ct. Com. Pl. July 27, 2013) (citing Pa.R.E. 607); Macdonald v. Chestnut, 2005 WL 5107591 (Ct. Com. Pl. May 27, 2005); Polett v. Public Communications, Inc., A.3d 2013 WL 6732103 (Pa. Super. 2013). Furthermore, Pennsylvania courts have upheld inquiries about the amount of income an expert has received from testifying in a particular type of case and whether the expert consistently represents . . . Plaintiff or Defendant" (emphasis added). J.S., 860 A.2d at 1121; Macdonald, 2005 WL 510759; McKenna, supra at ¶6.

In Cooper, 588 Pa. 505, supra, the Pennsylvania Supreme Court outlined “the limited aspect of income information within the fair scope of relevance on the question of potential favoritism” that the proponent of discovery may inquire. It includes:

the approximate amount of compensation received and expected in the pending case; the character of the witnesses’ litigation-related activities, and, in particular, the approximate percentage devoted to specific types of litigation and/or work on behalf of a particular litigant, class of litigant, attorney, and/or attorney organization; the number of examinations, investigations, or inquiries performed in a given year, for up to the past three years; the number of instances in which the witness has provided testimony within the same period; the approximate portion of the witness’ overall professional work devoted to litigation-related services; and the approximate amount of income each year, for up to the past three years, garnered from the performance of such services.

Cooper, 588 Pa. 525, 905 A.2d at 495 (internal citations omitted). The Cooper court also said “[supplemental] discovery . . . should be of the least burdensome and intrusive kind possible. Id. Moreover, a court should review whether “the financial information involved meets even the lower threshold governing discovery generally, namely, the requirement that the request be reasonably calculated to lead to the discovery of admissible evidence. Id. at 493 (citing Pa.R.C.P. 4003.1(a)(1)); J.S., 860 A.2d 1112, supra; Sleasman v. Bolden, 2006 WL 3921267 (Allegheny Co. Mar. 6, 2006).

In Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity, 32 A.3d 800, 810 (2011), the court, in citing Pa.R.C.P. 4003.5(a)(1), confirmed Cooper's holding that supplemental discovery may be further ordered only upon “cause shown.” Barrick also distinguished Cooper, by holding that cause for supplemental discovery is not shown when an appellant seeks written trial preparation materials in connection with communications between counsel for appellants and appellants’ expert witness because such written correspondence is privileged and exceeds the scope of Pa.R.C.P. 4003.5(a)(1) (emphasis added).

In the present case, we find that pursuant to Cooper's holding on supplemental discovery of expert witnesses under Pa.R.C.P. 4003.5, Pa.R.C.P. 4003.1(a) (relevant material is discoverable) and Pa.R.C.P. 4003.1(b) (material is discoverable if reasonably calculated to lead to the discovery of relevant evidence), our STM’s July 23, 2012 order, outlining permitted portions of plaintiff’s interrogatories to Dr. Fayyazi and VSAS, is appropriate supplemental discovery.

LEGAL ANALYSIS

Our STM’s order of July 23, 2012, going three (3) years back no later than September 2012, seeks answers to plaintiff’s interrogatories regarding the following:

(1) a list of all Independent Medical Examinations (“IMEs”) and depositions Dr. Fayyazi has conducted;
(2) a list of all IMEs and depositions the medical-legal department of VSAS has conducted;
(3) the total amount of money that Dr. Fayyazi has made from conducting IMEs;
(4) the total amount of money the medical-legal department of VSAS has made from conducting IMEs;
(5) the total amount of money the medical-legal department of VSAS has made from testifying in litigation and administrative claims for defendant’s insurance carriers, and government entities including worker’s compensation matters such as URO and social security claims;
(6) a list of said lawsuits and administrative matters, including utilization reviews for workers’ compensation cases by the medical-legal department of VSAS;
(7) the total amount of money Dr. Fayyazi made from testifying in litigation and administrative claims for defendants, insurance carriers, and government entities including workers’ compensation matters such as URO and social security claims; and
(8) a list of said lawsuits and administrative matters, including utilization reviews for workers ’ compensation cases by Dr. Fayyazi.

See plaintiff’s interrogatories propounded upon Dr. Amir Fayyazi (May 25, 2012); Guffey v. Kyriazis, 2308-CV-2009, Order of the discovery master (July 23, 2012).

I. Plaintiffs’ Interrogatories As Set Forth in the July 23, 2012 Order Are Relevant and Reasonably Calculated to Lead to the Discovery of Relevant Evidence

The purpose our plaintiff’s discovery inquiry is the same as plaintiff’s inquiry in Cooper. In Cooper, the court found certain financial records pertaining to the expert’s legal/medical activities were discoverable because defense’s medical legal expert was apparently known [for] “extensive participation in defense medical examinations in the past, and plaintiff’s sought to address the extent to which expert defense had financial entanglements with defense firms and/or the insurance industry.” Cooper, 588 Pa. at 518-19, 524, 905 A.2d at 490, 494-95.

In the present case, plaintiffs believe and aver that Dr. Fayyazi regularly testifies in both workers’ compensation and motor vehicle actions for $3,000 an hour for deposition, and that Dr. Fayyazi derives substantial income from this medical legal work. See plaintiff’s motion to overrule any of defendant’s objections to plaintiff’s interrogatories regarding defendant’s expert, Dr. Amir Fayyazi, and request for an order compelling the full and complete answers, paragraph 15 (June 21, 2012).

Dr. Fayyazi is employed by VSAS Orthopedics, a medical group that specializes in providing legal medical examinations primarily to insurance businesses or their insureds, whether it be defendants in motor vehicle accidents and/or workman’s compensation claims. See Id. at exhibit “D”. VSAS provides defense medical examinations to the workman’s compensation and liability insurance businesses. Id. VSAS Orthopedics also goes so far as to advertise that they have nine (9) physicians providing defense medical examinations (emphasis added). Id.

Moreover, recent testimony under oath from Dr. DiBenedetto, a colleague of Dr. Fayyazi and partner at VSAS, also indicates that discovery of Dr. Fayyazi and VSAS’s financial information is appropriate supplemental discovery. In the matter of Spencer v. Price Chopper, B.C.No. 3286998 In. 34:12-16 (Mar. 6, 2012), Dr. DiBenedetto testified that he himself was making $800,000 to a million dollars a year doing legal medical work for VSAS, and that this money is shared with other VSAS physicians. See plaintiff’s brief in support of discovery motion (June 21, 2012) exhibit E, deposition of Dr. DiBenedetto in Spencer v. Price Chopper. Dr. DiBenedetto also testified that Dr. Fayyazi is the busiest physician at VSAS doing legal medical exams. Id. Dr. DiBenedetto’s testimony suggests Dr. Fayyazi frequently performs legal medical work.

Further, plaintiffs have indicated to the court that the law firm engaged by our defendant in the present case has formerly engaged Dr. Fayyazi as an expert performing frequent defense medical legal exams, and that Dr. Fayyazi’s income generated from such work is substantial. In defendant’s answer to plaintiff’s interrogatories in the matter of Grace v. Strazzeri, 2009-CV-2496, filed July 25, 2011 in Lackawanna County, defendants’law firm indicated to our plaintiff that Dr. Fayyazi charged $1,200 for each IME, and approximately 20% of his overall professional work was devoted to litigation related services. Id. at ¶6. Defendants firm in the Lackawanna County case Grace also noted to plaintiffs that Dr. Fayyazi, while working at VSAS, made $560,270 from IMEs in 2011, $746,933 in 2010, and $386,160 in 2009; and that he performed 40 medical/legal depositions in 2009, 83 such depositions in 2010, and 54 depositions in 2011. Defendants’ firm in Grace also noted Dr. Fayyazi performed 204 IMEs for VSAS in 2009, 333 IMEs in 2010, and 201 IMEs in 2011. Id. a^7.

This financial information from plaintiff’s prior litigation experiences with Dr. Fayyazi, in a matter before our county, speaks directly to plaintiff’s concern that Dr. Fayyazi may be a witness secured by defendants to provide legal medical material favoring defendants. It therefore demonstrates that the financial information interrogatories in our STM order is both relevant and reasonably calculated to lead to the discovery of relevant evidence. Pa.R.C.P. 4003.1 (a)-(b); Pa.R.C.P. 4003.5; Cooper, 588 Pa. 505,905 A.2d 482. The financial information also demonstrates that plaintiff has shown cause for supplemental discovery pursuant to Cooper.

Plaintiff Has “Shown Cause” for Supplemental Discovery Pursuant to Cooper

Plaintiff’s interrogatories as approved by the STM are narrowly tailored to the facts of plaintiff’s case and the concerns plaintiff has raised regarding Dr. Fayyazi’s potential “professional witness” status. Cooper, supra; see also Sleasman, 2006 WL 3921267; Pa.R.C.P. 4003.1(b); PECO Energy Co., 852 A.2d 1230. The order does not seek “unfettered production of any and all . . . forms, where such documentation contains information unrelated to the case” but rather the information sought by plaintiff is limited to Dr. Fayyazi and VSAS’s medical legal work in cases like our own. See J.S., 860 A.2d 1112, supra. As noted above, the order specifically states that the interrogatories do not involve information about referrals from attorneys or others. See STM Order (July 23, 2012). Sleasman, 2006 WL 3921267; J.S., 860 A.2d 1112, supra. Nor does the order seek privileged, written correspondence between defense counsel and his expert like in Barrick, supra. Instead, as defense counsel admits, plaintiffs seek the very material that was at issue in Cooper. See defendants appeal from order of discovery master of July 23,2012 (Aug. 1,2012). In addition, though plaintiff’s original interrogatory request sought financial information of Dr. Fayyazi and VS AS from the last four (4) years, our STM order allows only such information from the past three (3) years. As such the order is within the confines of Cooper, 588 Pa. at 525, 905 A.2d at 495 supra; see also this opinion at p.9 (outlining that Cooper permits supplemental discovery of approximate amount of income each year, for up to the past three years, garnered from the performance of such services).

Defendant Has Not Established that the STM Order Fails to Comply with Cooper

A party asserting a limitation on discovery has the burden established without limitation. Johnson v. Weisman, MD., 98 Civil 00393 (Bradford Co. Mar. 22, 2000), Pennsylvania Standard Practice, 6th Ed., Section 34.22. Defendants claim plaintiffs interrogatories do not comply with Cooper. However, defendant does not provide any explanation whatsoever in support of its argument for the appeal. Without substantiating its claim for the order’s non-compliance with Cooper, defendants’ argument is without merit. Moreover, the information sought in our STM’s order is “minimally intrusive.” See Cooper, 508 Pa. 588, supra. As noted on pages 12-13 of this opinion, the very financial information that defendants contest in our STM order regarding depositions, IMEs, income, and professional time spent by Dr. Fayyazi through his work as a defense medical legal expert with VS AS, has already been provided to this court by defendants’ firm when the firm answered interrogatories to these points in Grace. See plaintiffs supplemental exhibits being offered to support plaintiff’s motion pertaining to compelling Cooper discovery regarding Amir Fayyazi and VS AS (Oct. 31,2013) exhibit 3 at paragraphs 6-7. Further, though the information formerly provided in Grace includes the years 2009, 2010, and 2011, and not the years our STM allowed in the July 2012 order, it is significant that in Grace, defendant’s firm provided the financial information our plaintiff now seeks, at a time at least three years after which Cooper was decided. Having previously provided such information despite Cooper, defendants argument that the information is not Cooper-complaint fails.

The July 23, 2012 STM order seeks information that is in the proper scope of discovery. Defendant’s appeal of the STM order of July 23, 2012 is denied and dismissed.

ORDER

And now, this 3rd day of February 2014, upon consideration of the motions and briefs of the parties regarding defendants’ appeal of the July 23, 2012 order of special trial master compelling defendants to answer interrogatories going back three (3) years no later than September 15,2012, it is hereby ordered and decreed that:

1. Defendant’s appeal of the special trial master’s discovery order of July 23, 2012 is denied and dismissed.
2. All discovery approved by the STM in his July 23, 2012 order is to be provided by defendant within thirty (30) days of the date of this order.

      . Defendants’ preliminary objections alleged the criminal history of defendant Kyriazis had nothing to do with the incident before the court and should be stricken, and that there was no support for the allegation that defendant Marta arrived on the scene to “cover up” for Kyriazis. On June 4, 2009, paintiffs filed preliminary objections to defendant’s preliminary objections. On March 16, 2010, judge Cheslock sustained defendants’ objections to Kyriazis’ criminal history and overruled the objections as to Marta’s reasons for arriving on the scene. Defendants filed an answer and new matter to plaintiffs’ complaint on April 16,2010.

      . Plaintiffs filed a brief in opposition to the motion for partial summary judgment on May 25, 2012.

      . When defendants filed their objections to the proposed interrogatories of plaintiff on July 3, 2012, prior to our STM having issued an order on the matter on July 23, 2012, defendants asserted specific reasons for the objections. Neither this reasoning nor other reasoning was provided by defendants in support the appeal presently before us. See defendant’s brief in support of opposition to plaintiff’s discovery motion (July 3,2012); defendant’s appeal of the July 23,2012 discovery order (Aug 21, 2012).

      . More specifically, the rule states, in pertinent part: A party is allowed to submit interrogatories to any other party, requiring the opposition to identify each of their expert witnesses as well as “to have each expert so identified state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. Pa.R.C.R 4003.5(a)(1).

      . Pa.R.C.P. 4003.5(a)(2) states: A party may only require opposing experts to state the facts and opinions to which they are expected to testify and to summarize the grounds for each such opinion, unless cause is shown and a court order acquired for the additional discovery.

      . See plaintiff’s supplemental exhibits being offered to support plaintiff’s motion to compelling Cooper discovery regarding Amir Fayyazi and VSAS (Oct. 31, 2013) exhibit 3 (defendant Santa Marie Strazzeri’s answers to plaintiff’s expert interrogatories concerning Amir Fayyazi, M.D. Addressed to defendant, Grace v. Strazzeri, 2009-CV-2496, Lacka. Co.) (Lacka. Co. July 25, 2011).

      . See plaintiff’s interrogatories propounded upon Amir Fayyazi M.D. c/o Edward S. Neyhart, Esq. (May 25,2012).

      . Interestingly, as referenced in footnote 3 above, in August 2012, defendant provided specific reasoning in its objections to plaintiff’s original discovery request prior to our STM having decided the July 2012 Order, yet defendant did not raise the same or other specific issues outlining the order’s non-compliance with Cooper in defendant’s present appeal of the order.


author: GRAY, J.,

text:
    Middleton v. Lycoming Housing

      Jennifer L. Heverly, for appellant.

      John Bonner, for appellee.
    February 13, 2014
   GRAY, J.,

— This matter comes before the court on appellant’s motion for special injunction related to a local agency appeal. On December 3, 2013, the time set for a hearing on the motion for a preliminary injunction, counsel submitted argument, research and a transcript derived from audio recordings of the second formal hearing that occurred on October, 7, 2013 before the Lycoming Housing Authority. Upon review of the transcript, pleadings, motion and answer to the motion, arguments and research submitted in this matter, it is hereby ordered and directed that appellant’s motion for special injunction pursuant to Pa. R.C.P. No. 1531 is granted. Accordingly, the temporary order entered in this matter on November 1, 2013 remains in Ml force and effect pending a final hearing on motion for permanent injunction and on the agency appeal.

I. Factual and Procedural Background

The appellant is Mr. Middleton who resides as a tenant at an apartment on High Street in Williamsport. Mr. Middleton has continuously received and relied upon housing assistance payments provided under the federal Section 8 housing program in the amount of $458 per month to help pay his rent. Mr. Middleton is 51 years old, has had both of his legs amputated and requires housing which is wheelchair and handicapped-accessible. Due to his disability, Mr. Middleton is unable to engage in substantial gainful employment and receives social security disability benefits in the amount of $730 per month.

The appellee is the Lycoming Housing Authority. On April 24,2013, the housing authority proposed termination of Mr. Middleton’s housing assistance payments because criminal charges were pending against him. After an informal hearing, the decision to terminate the housing assistance payments was upheld. A formal hearing was held in June 26, 2013. After that formal hearing, the termination of the housing assistance payments was again upheld. On July 17, 2013, Mr. Middleton filed a local agency appeal. By agreement of the parties the case was remanded for a second formal hearing which was held on October 4, 2013. Following the second formal hearing, the decision to terminate the housing assistance payments was again upheld.

On November 1, 2013, Mr. Middleton filed a local agency appeal pursuant to 2 Pa. C.S. § 752 of the October 4,2013 determination by the Lycoming Housing Authority to terminate his Section 8 housing assistance. At the same time, Mr. Middleton filed a motion for special injunction alleging that termination of his housing assistance payments from November 2013 forward would result in the loss of Mr. Middleton’s housing pending review of the agency’s determination and that Mr. Middleton cannot pay the full monthly rental amount on his own. Mr. Middleton proceeded in the matter in forma pauperis pursuant to Pa. R.C.P. No. 240(d) upon certification by an attorney from North Penn Legal Services who represents Mr. Middleton for free and believes he is unable to pay the costs. On November 1, 2013, the court entered an order and special injunction and scheduled a hearing within 5 days. Subsequently, the parties agreed to continue the matter until the December 3, 2013 hearing. At the time of the hearing, the parties agreed that the matter could be decided based upon the transcript, record, arguments and research submitted. No testimony was taken at that time.

II. Discussion

In this matter, the court concludes that the plaintiff is entitled to a preliminary injunction. In order to obtain a preliminary injunction within the Commonwealth, the party requesting the injunctive relief must establish six “essential prerequisites.” Warehime v. Warehime, 860 A.2d 41, 46 (Pa. 2004). See also Brayman Constr. Corp. v. Dep’t of Transp., 13 A.3d 925, 935 (Pa. 2011); Summit Towne Ctr., Inc. v. Shoe Snow of Rocky Mount, Inc., 828 A.2d 995, 1001 (Pa. 2003). In particular, the requesting party must establish:

(1) relief is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by money damages; (2) greater injury will occur from refusing to grant the injunction than from granting it; (3) the injunction will restore the parties to their status quo as it existed before the alleged wrongful conduct; (4) the petitioner is likely to prevail in the merits; (5) the injunction is reasonably situated to abate the offending activity; and (6) the public interest will not be harmed if the injunction is granted.

Brayman Constr. Corp., 13 A.3d at 935. (See also Warehime, 860 A.2d at 46-47; Summit Towne Centre, Inc., 828 A.2d at 1002. Accordingly, this court will discuss each of the six prerequisites.

1. Immediate and Irreparable Harm to Plaintiff

Plaintiff has satisfied his burden in showing that he will suffer immediate and irreparable harm that cannot be adequately compensated by money damages if an injunction is not issued. “An injury is regarded as irreparable if it will cause damage which can be estimated only by conjecture and not by an accurate pecuniary standard.” Masure v. Massa, 692 A.2d 1119, 1122 (Pa. Super. Ct. 1997) (citation omitted) Irreparable harm may also occur upon the violation of one’s constitutional rights. See, Lewis v. Kugler, 446 F.2d 1343, 1350 (3d Cir. 1971).

In the instant case, the harm at issue is the loss of federal housing assistance needed for rent to avoid the loss of current housing. The harm also implicates constitutional rights as the loss is based upon a detennination that relied solely uncorroborated and objected to hearsay evidence. Mr. Middleton is a double amputee who receives social security disability benefits in the amount of $730 per month. The housing assistance payments at issue in this case are in the amount of $458 per month, which is more than half of his entire monthly disability benefit. The court finds that, without those monthly housing assistance payments, Mr. Middleton would be unable to pay his rent for his current wheelchair and handicapped-accessible housing. The court further finds that, without the housing assistance payments, Mr. Middleton would likely become homeless or be subjected to inadequate and/or transient and/or substandard housing. These are injuries that cannot be adequately compensated by money damages.

2. Injury Resulting

Granting a preliminary injunction in this matter is appropriate because greater injury will result from denying the injunction than granting it. Here, if an injunction is erroneously granted, the housing authority would suffer a monetary harm, which can potentially be recovered. By contrast, an erroneous failure to grant an injunction would result in Mr. Middleton essentially losing his current affordable and wheelchair and handicapped-accessible housing which could not be remedied by a money judgment. Therefore, greater injury will result from denying the injunction than from granting it.

3. Restoration of the Status Quo

Granting a preliminary injunction in this matter will restore the parties to the status quo prior to the termination of the housing assistance payments. A preliminary injunction should maintain the status quo of the parties that immediately preceded the pending controversy. York Group, Inc. v. Yorktowne Caskets, Inc., 924 A.2d 1234, 1244 (Pa. Super. Ct. 2007). The controversy in this case involves a dispute as to whether Mr. Middleton’s housing assistance payments were being terminated in violation of his constitutional rights, federal law and Pennsylvania agency law under the provisions of subchapter B of 2 Pa.C.S. Chapter 5. The status quo prior to this controversy was that the housing assistance payments were being made. The injunction required that the status quo be maintained by requiring that the housing assistance payments continue pending final resolution of this matter. Therefore, the granting of a preliminary injunction in this case would restore the parties to the status quo prior to the taking of the disputed action of terminating the federal housing assistance payments.

4. Plaintiff’s Likelihood of Success on the Merits of his Claim

The court finds that appellant Mr. Middleton has satisfied his burden in showing that he has a strong likelihood of success on the merits of his claim, i.e., his agency appeal. When considering a party’s likelihood of success on the merits, in Ambrogi v. Reber, 932 A.2d 969 (Pa. Super. Ct. 2007), our Superior Court held that “the party seeking an injunction is not required to prove that he will prevail on his theory of liability, but only that there are substantial legal questions that the trial court must resolve to determine the rights of the party.” Id. at 976. In this matter, the burden of proof is placed on Mr. Middleton because he is the party requesting the injunctive relief. Warehime, 860 A.2d at 47.

In the instant case, Mr. Middleton is likely to succeed on the merits of his claim because the housing authority failed to produce or rely upon sufficient probative evidence to prove by a preponderance of the evidence that Mr. Middleton is ineligible for Section 8 housing assistance. Following a second formal hearing, the housing authority issued a decision to uphold the termination of the housing assistance payments. See, Letter dated October 11, 2013 by MeriLyn Severson, Executive Director, Lycoming Housing Authority, attached as Exhibit “A” to the appeal from local agency decision (“decision”). In the decision, the housing authority determined that Mr. Middleton was ineligible for Section 8 housing assistance benefits and terminated him from that program pursuant to Section 17 of their admission and occupancy policy. Under that policy, a person may be denied program assistance or terminated from program assistance for the following reasons.

[i]f any member of the family commits drug-related criminal activity, violent criminal activity, or any criminal activity against persons or property that threatens the health, safety, and/or right to peaceful enjoyment of the premises or neighbors and/or residents of the premises.” (“decision”)

The next paragraph states “Evidence of Violation followed by reference to a police affidavit and a brief recitation of the informational content of that affidavit. The next and last paragraph then provides Mr. Middleton with his appeal rights. Upon review of the decision and the transcript of the formal hearing, this court finds that the only evidence presented by the Lycoming Housing Authority in support of its decision was the police affidavit. However, the police officer was not present at the hearing and did not provide testimony and was not subj ect to cross-examination. There is nothing in the transcript or pleadings explaining the absence of testimony by the police officer, such as failed attempts to obtain his testimony in person or by telephone. The police affidavit was objected to as hearsay. See, transcript of the 2nd formal hearing dated October 8, 2013 (“Tr.”), at 2. As a result of the hearsay objection, the police affidavit cannot be the sole basis for the agency’s determination. See, Zajac v. Altoona Housing Authority, 626 A.2d 1271, 1275 (Pa. Commwlth. 1993) (noting that objected to hearsay evidence cannot support a finding of the housing authority.) Since there is no other independent probative evidence in the record, the court believes that Mr. Middleton has a strong likelihood of success on the merits of his appeal.

The housing authority argued that it could rely upon an adverse inference from Mr. Middleton’s exercise of his fifth amendment right not to incriminate himself to carry its burden. This court does not agree. There is nothing in the record which indicates that the agency drew an adverse inference from the refusal to testify, much less relied upon it to carry the burden of proof. The decision states “Evidence of Violationfollowed by the police affidavit and its contents. It does not mention anywhere that Mr. Middleton’s refusal to testify was evidence considered by the agency. This court believes and finds that the housing authority made its decision based solely upon the police affidavit which was properly objected to as hearsay. Moreover, the court does not agree that the housing authority can rely upon an adverse inference to carry its burden of proof. Even with an adverse inference against Mr. Middleton, there still must be “independent, probative evidence” to support the inference drawn, particularly when the evidence is needed to meet the burden of proof. See, e.g., Harmon v. Mifflin County Sch. Dist., 713 A.2d 620, 624-625 (Pa. 1998), referencing, Petrone v. U.C.B.R., 557 A.2d 1118 (Pa. Cmwlth. 1989). In this case, the only evidence was the objected to hearsay evidence. For these reasons, the court believes that Mr. Middleton has a strong likelihood of success on the merits of his appeal of the agency determination.

5. Reasonableness of the Preliminary Injunction

Granting a preliminary injunction in this case will reasonably abate the offending activity. It will require the housing assistance payments to be made which in turn will allow Mr. Middleton to continue to pay his rent in a timely fashion.

III. Protecting the Public Interest

Lastly, granting a preliminary injunction in this matter will protect the public interest. In this case, it appears the housing authority did not produce any non-hearsay evidence to support the termination of housing assistance payments. The case was previously remanded by agreement of the parties for a second formal hearing in part to allow the housing authority the opportunity to get further evidence. Tr. at 2. Yet, nothing in the record suggests that housing authority requested the police officer’s testimony. Housing subsidies help prevent homelessness and transience among the poor. The public interest is served by requiring that some non-hearsay evidence of in-eligibility be considered prior to terminating housing assistance to a low income individual.

IV. Conclusion

In short, this court finds that plaintiff has satisfied his burden and is entitled to a preliminary injunction in this matter. This court commends the Lycoming Housing Authority for the laudable goal of ensuring that only eligible individuals receive housing assistance payments. However, this court is constrained by due process, constitutional rights, federal law and Pennsylvania agency law when reviewing the termination of housing assistance payments. When seeking to terminate a federal subsidy for affordable housing, the housing authority must present sufficient probative non-hearsay evidence to support its decision; otherwise the courts are constrained to reverse the determination.

ORDER

And now, this 13th day of February, 2014, pursuant to this opinion, it is hereby ordered and directed that plaintiff’s motion for a preliminary injunction is granted. A final hearing on the motion for permanent injunction and an on the record review of the local agency appeal pursuant to 2 Pa. C.S. § 754 is scheduled for the 7th day of March, 2014 at 2:30 p.m. in Courtroom #3. Appellee is directed to either file a certification that the transcript submitted to the court constitutes the complete and certified record in this matter or file and forward the complete and certified record to the court and opposing counsel.

Under the circumstances of appellant’s indigency and for good cause shown, appellant may proceed under Pa. R.C.P. No. 240(f) without paying costs or posting bond.

      . The housing authority argued that since 24 C.F.R. 982.555(e) (5) allows the hearing officer to consider evidence without regard to admissibility, it follows that such evidence can be sufficient to meet its burden of proof and should trump the case-law in Pennsylvania interpreting local agency law. This court disagrees. It does not follow that evidence is sufficient to meet ones burden of proof just because that evidence may be considered without regard to admissibility. Indeed, Pennsylvania local agency law also provides that local agencies are not bound by technical rules of evidence at agency hearings. 2 Pa.C.S. § 554. However it is well established in Pennsylvania that hearsay evidence properly objected to cannot be the sole support for an agency detennination. Walker v. Unemployment Compensation Board of Review, 527 A.3d 366 (1976).

      . The housing authority is required to issue a “written decision, stating briefly the reasons for the decision,” and its factual determinations must be “based on a preponderance of the evidence presented at the hearing.” 24 C.F.R. 982.555 (e)(6).

      . The parties agree that a complete record was developed before the local agency. See, Appeal from Local Agency Decision, ¶ 16 and corresponding answer to the appeal. Therefore, the court cannot allow further testimony and must review the certified record. 2 Pa.C.S. § 754(b).


author: BARATTA, J.,

text:
    Muschlitz Excavating, Inc. v. Gary J. Strausser Homebuilders, Inc.

      Stanley J. Margie, III, for plaintiff.

      Patrick C. Campbell, Jr., for defendant.
    February 14, 2014-
   BARATTA, J.,

ORDER OF COURT

And now, this day of February, 2014, upon consideration of the defendant, Gary J. Strausser Homebuilders, Inc.’s, motion for partial summary judgment, and the plaintiff, Muschlitz Excavating, Inc.’s, response thereto, it is hereby ordered that said motion is denied.

STATEMENT OF REASONS

Facts and Procedural History

On May 4, 2012, the plaintiff, Muschlitz Excavating, Inc., filed its complaint, in which it avers the following:

The defendant, Gary J. Strausser Homebuilders, Inc., hired the plaintiff to install infrastructure and sitework improvements for the defendant’s Northwood Commons development project. On August 23, 2011, the parties entered into a subcontractor agreement/ contract (hereinafter “the contract”). Under the contract, the work was to begin on August 25, 2011, and end no later than May 3, 2012, with intermediary deadlines and payment set forth by a job schedule. The defendant was required under the contract to pay the plaintiff a total sum of $1,917,632.44, in installments as determined by the job schedule, in exchange for the plaintiff’s complete performance. Between October and December of 2011, the parties executed change orders, which altered the performance and payment under the contract. Pursuant to the change orders, the defendant was to pay the plaintiff a total of $2,084,922.96 for the new scope of work to be performed, plus $14,600.00 for importing crushed rock.

The plaintiff could not complete the work as scheduled in the contract due to delays, which the plaintiff argues were caused by the defendant’s failure to secure permits and/or zoning approvals for the development project. The plaintiff further alleges that despite its best efforts to keep the project on schedule, it could not perform due to the defendant’s interference. The plaintiff argues that the defendant has breached the contract, the contractual amendments, and the implied covenant of good faith and fair dealing.

The plaintiff has pleaded in the alternative, claims for breach of contract and unjust enrichment. The plaintiff claims that the defendant has been unjustly enriched by the plaintiff’s work performed under the contract in the amount of $127,506.05. The plaintiff also seeks breach of contract damages in the total amount of $450,019.50 (which subsumes the $127,506.05 for work completed and not paid for in full).

The paragraphs of the contract relevant to our determination are as follows:

SUBCONTRACTORS AGREEMENT/CONTRACT
5. PAYMENT: Contractor will pay to subcontractor the contract price in installments consisting of progress payments and a final payment on completion of the work according to the schedule.... Each progress payment will cover the work done during the pay period. Subcontractor shall provide contractor with an application for payment (invoice)..... Contractor may withhold payment while subcontractor is in material breach of this contract Subcontractor acknowledges that contractor may also decline to approve all or any portion of a request for payment (1) After legal claims related to subcontractor have been filed and served on contractor or owner, (2) If subcontractor is delinquent in paying sub-subcontractors, employees or material suppliers for work and/or material that the subcontractor has received payment for from contractor, (3) if it becomes apparent that the work cannot be completed or finished by the contract completion date, (4) If subcontractor is responsible for substantial damage to work of owner or a separate contractor.
7. PERFORMANCE OF WORK: The subcontractor... shall vigorously perform the work specified in the contract documents according to the schedule.... Time is of the essence in regards to this agreement. In meeting that schedule, the subcontractor...shall maintain at all times a rate of progress satisfactory to contractor and adequate to assure full and timely performance of the work specified pursuant to this subcontract. If restorative or remedial work becomes necessary to correct any defect, omission or other problem with regard to the subcontractor’s work in whole or in part, the subcontractor...shall provide the necessary labor and materials to cure any such defect, omission or other problem within five (5) days after written notice is received from the contractor, provided such defect, omission or other problem is detected within 18 months from the date the work was completed....Failure to correct or cure such defect, omission or other problem will result in withholding of that portion of payment for
the uncompleted or defective work.
9. COOPERATION: Subcontractor...shall fully cooperate with the contractor...and shall not interfere, hinder, delay or obstruct the performance of work by the contractor, other principal contractors, or other subcontractors.
21. ADDITIONAL WORK AUTHORIZATION: Any and all work not specifically covered under this contract will be considered additional work. All additional work must be approved by contractor in writing prior to commencement. Failure to receive written authorization will result in nonpayment.
23. WARRANTY: Except as otherwise provided in this agreement, subcontractor warrants that work performed under this contract shall conform to the contract documents and be free of defects in material, or design furnished, or workmanship performed by subcontractor...for eighteen (18) months....
SPECIFICATIONS
Federal, State and Local Approvals/Pennits
The contractor is responsible to obtain all federal, state and local approvals.

Complaint, exhibit “A” — subcontractors agreement/ contract (emphasis in original).

On July 2, 2012, the defendant filed its answer with new matter and counterclaim to plaintiff’s complaint. In the defendant’s new matter, it avers that the plaintiff’s claims are barred: (1) by provisions in the contract, (2) because the plaintiff committed a material breach of the contract, and (3) because of set off and/or recoupment. In the counterclaim, the defendant avers that the plaintiff failed to complete its work in a timely fashion and was in breach of the “time is of the essence” provision, causing the defendant to terminate its contract with the plaintiff. Further, the defendant contends that the work did not conform to the contract and that other work was defective and, therefore, violated warranties.

On July 17, 2012, the plaintiff filed its reply to new matter and counterclaim of defendant. The plaintiff also pleads a new matter, asserting equitable defenses to the defendant’s counterclaim.

The parties engaged in significant discovery, which included depositions and interrogatories. On November 22, 2013, the date by which discovery was required to be completed, the defendant filed its motion for partial summary judgment, to which it attached multiple exhibits relating to the contract. On that same date, the defendant filed its memorandum of law in support of its motion.

On December 13, 2013, the plaintiff filed its answer to defendant’s motion for partial summary judgment, to which it attached exhibits relating to discovery. On January 23, 2014, the plaintiff filed its brief in opposition to the defendant’s motion for partial summary judgment. By leave of court, the defendant filed its reply memorandum of law in support on January 31, 2014. Also by leave of court, the plaintiff filed its reply brief in opposition on January 31, 2014.

This matter was placed on the January 28, 2014, argument list and submitted on brief.

Legal Standard
Pennsylvania Rule of Civil Procedure 1035.2 states:
After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
(1) Whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to the jury.

Pa.R.C.P. 1035.2.

Further, under Pa.R.C.P. Rule 103 5.3 (a), the nonmoving party may not rest upon mere allegations or denials of the pleadings but must file a response within thirty (30) days after service of the motion. In other words, the nonmoving party has a clear and affirmative duty to respond to a motion for summary judgment. Harber Phila. Ctr. City Office Ltd. v. LPCI Ltd. P’ship, 764 A.2d 1100, 1104 (Pa. Super. 2000). Also, Pa.R.C.P. Rule 1035.3(d) specifically provides that “[sjummary judgment may be entered against a party who does not respond.” Id.

Summary judgment may be granted only in the clearest of cases where the record shows that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. P.J.S. v. Pa. State Ethics Comm’n, 723 A.2d 174, 176 (Pa. 1999) (citing Marks v. Tasman, 589 A.2d 205 (Pa. 1991)). Summary judgment is only appropriate in the clearest of cases, because an order favorable to the moving party will prematurely end an action. Scopel v. Donegal Mut. Ins. Co., 698 A.2d 602, 605 (Pa. Super. 1997) (citations omitted). The moving party has the burden of proving the non-existence of any genuine issue of material fact. O ’Rourke v. Pa. Dep’t of Corr, 730 A.2d 1039, 1041 (Pa. Commw. Ct. 1999) (citing Kee v. Turnpike Comm’n, 722 A.2d 1123 (Pa. Commw. Ct. 1998)). “Failure ofa non-moving party to adduce sufficient evidence on an issue essential to his case and on which it bears the burden of proof...establishes the entitlement of the moving party to judgment as a matter of law.” Murphy v. Duquesne Univ. of the Holy Ghost, 777 A.2d 418, 429 (Pa. 2001) (quoting Young v. PennDOT, 744 A.2d 1276, 1277 (Pa. 2000)) (omission in original) (internal quotation marks omitted). The record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Ertel v. Patriot-News Co., 674 A.2d 1038, 1041 (Pa. 1996) (citation omitted).

Under the Nanty-Glo Rule, summary judgment may not be granted where the moving party relies exclusively on oral testimony, either through testimonial affidavits or deposition testimony to establish the absence of a genuine issue of material fact. Nanty-Glo Borough v. American Surety Co., 163 A.523, 524 (Pa. 1932); see also Penn Center House, Inc. v. Hoffman, 553 A.2d 900, 903 (Pa. 1989); White v. Owens Corning Fiberglas, Corp., 668 A.2d 136, 142 (Pa. Super. 1995); Garcia v. Savage, 586 A.2d 1375, 1377-78 (Pa. Super. 1991); O’Rourke, 730 A.2d at 1041 (citing Kaplan v. Se. Pa. Transp. Auth., 688 A.2d 736 (Pa. Commw. Ct. 1997)).

A trial court’s entry of summary judgment will only be reversed in instances where there was an abuse of discretion or an error of law by the trial court. Moses v. T.N.T. Red Star Express, 725 A.2d 792, 795 (Pa. Super. 1999) (citing Sebelin v. Yamaha Motor Corp., 705 A.2d 904, 906 (Pa. Super. 1998)).

Discussion

I. Breach of Contract Claim

The defendant asserts that there are no issues of material fact with regard to count I of the plaintiff’s complaint, because the plaintiff materially breached the contract and is therefore not entitled to damages for the defendant’s failure to perform under the contract.

The plaintiff, however, asserts an excuse, that it “has been delayed and impeded in its efforts to complete the work in accordance with the schedule outlined in the. contract by the purposeful actions of the defendant and/ or its agents or representatives,” and that the defendant’s delay in obtaining the necessary permits prevented the plaintiff from completing the work as scheduled. See plaintiff’s answer to defendant’s motion for partial summary judgment ¶ 4. In so asserting, the plaintiff raised a defense to its alleged nonperformance under the contract. This defense yields issues of material fact which must be determined by the trier of fact.

Under Pennsylvania law, a party is excused from performance under the contract if the other party’s conduct impedes his performance. See Slater v. General Cas. Co. of Am., 25 A.2d 697, 699 (Pa. 1942); see also Liddle v. Scholze, 768 A.2d 1183, 1185 (Pa. Super. 2001). By averring that it could not perform due to the defendant’s actions, the plaintiff has pled an excuse for its lack of performance under the contract. Moreover, the contract requires that the defendant obtain the necessary permits to complete work on the project; as the defendant allegedly failed to do so in a timely manner under the contract, the defendant arguably materially breached the contract.

The plaintiff brings a cause of action for breach of contract, alleging that the defendant did not pay it for work completed under the contract. The plaintiff argues that it could not perform under the contract as a result of the defendant’s actions and alleged breach of the contract. As the plaintiff has raised a series of factual allegations that proffer an excuse for its lack of performance, it cannot be found as a matter of law to have materially breached the contract such that it would preclude plaintiff from seeking for money damages for its alleged loss. See LJL Transp. Inc. v. Pilot Air Freight Corp., 962 A.2d 639, 649-50 (Pa. 2009) (finding that one party’s material breach of contract excuses other party’s nonperformance under contract).

Issues of material fact exist in this case regarding the parties’ performance under the contract. Therefore, we deny the defendant’s motion for partial summary judgment with regard to count I of the plaintiff’s complaint.

II. Unjust Enrichment Claim

The defendant argues that it is entitled to partial summary judgment with regard to count II of the plaintiff’s complaint because the plaintiff cannot assert a cause of action for unjust enrichment if the relationship between the parties is founded upon an express contract. See defendant’s motion for partial summary judgment ¶ 29. In response, the plaintiff argues that under Pennsylvania case law, a plaintiff can plead a cause of action under the theory of unjust enrichment in the alternative to a breach of contract claim.

“The elements for unjust enrichment, essentially an equitable doctrine, are as follows: benefits conferred on defendant by plaintiff, appreciation of such benefits by defendant, and acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value.” Schenck v. K.E. David, Ltd., 666 A.2d 327, 328 (Pa. Super. 1995). Further, while the applicability of the doctrine depends on the facts of a particular case, “the most important factor to be considered...is whether the enrichment of the doctrine is unjust.” Id. (emphasis in original). If unjust enrichment is found, then the defendant must pay to the plaintiff the value of the benefit conferred; in other words, “the defendant makes restitution to the plaintiff in quantum meruit.” Id. at 328-29.

In support of its argument, the defendant cites to Wilson Area Sch. Dist. v. Skepton, 895 A.2d 1250 (Pa. 2006). In Skepton, our Supreme Court found that “the doctrine of unjust enrichment is inapplicable when the relationship between the parties is founded upon a written agreement or express contract.” Skepton, 895 A.2d at 1254 (internal citations omitted). In making this determination, the court kept in mind the principle that “parties in contractual privity...are not entitled to the remedies available under a judicially-imposed quasi-contract...because the terms of their agreement (express or implied) define their respective rights.” Id. (citing Curley v. Allstate Ins. Co., 389 F. Supp. 2d 614, 620-21 (E.D. Pa. 2003)) (emphasis added).

Pennsylvania case law supports the notion that unjust enrichment and breach of contract can be pled in the alternative. See Universal Builders, Inc. v. Moon Motor Lodge, Inc., 244 A.2d 10,16 (Pa. 1968). If a plaintiff fails to prove a cause of action under an express contract, then he may attempt to prove a cause of action for a quasi-contract when one party receives an unjust enrichment at the expense of another, as long as he sets forth a cause of action for unjust enrichment in the complaint. See Birchwood Lakes Cmty. Assoc., Inc. v. Comis, 442 A.2d 304, 308-09 (Pa. Super. 1982). Accordingly, “[wjhile [a] plaintiff cannot ultimately recover on both theories of contract and unjust enrichment, [a] plaintiff may plead unjust enrichment in the alternative along with a claim for breach of contract.” Duane Morris, LLP v. Todi, 2002 WL 31053839, at *6 (Ct. Com. Pl. 2002) (citing Birchwood, 442 A.2d at 308).

In the instant case, we find that the plaintiff has pled both a claim for breach of contract and in the alternative, a cause of action for unjust enrichment. Our Rules of Civil Procedure specifically provide for the alternative pleading of causes of action. See Pa.R.C.P. 1020(c). Further, our Superior Court has held that “theories of breach of contract and unjust enrichment must be pleaded alternatively in order to allow recovery under the latter theory where an express contract cannot be proven.” Lugo v. Farmers Pride, Inc., 967 A.2d 963, 970 (Pa. Super. 2009); see also Birchwood, 442 A.2d at 308-09.

The defendant correctly identifies case law in its brief that prohibits plaintiffs from recovering under both breach of contract and unjust enrichment claims. See Skepton, 895 A.2d at 1254. However, under Pennsylvania case law, where a plaintiff fails to prove a cause of action on an express contract, he may then attempt to prove his cause in quasi-contract — so long as the complaint averred the two causes of action. See Birchwood, 442 A.2d at 308-09. (Plaintiff brought actions both in contract and in unjust enrichment).

Thus, should a plaintiff’s breach of contract claim fail, unjust enrichment serves as an equitable remedy under which a defendant must recoup to the plaintiff the amount by which it has been unjustly enriched. See Universal Builders, 244 A.2d at 16.

The plaintiff has adequately pled a cause of action for unjust enrichment in its complaint. See Schenck, 666 A.2d at 328. The plaintiff avers that the defendant engaged its services and that it relied on the defendant’s representations of payment in completing the work. See complaint ¶¶ 27-29. Further, the plaintiff asserts that the defendant has received a benefit from the work performed by the plaintiff without paying for it. Id. at ¶¶ 30-31. As such, the plaintiff asserts that it is entitled to compensation in the amount in which the defendant has been unjustly enriched, in the alternative to its breach of contract cause of action. Id. at ¶¶ 32-38.

Because Pennsylvania law permits plaintiff to plead in the alternative, we deny the defendant’s motion for partial summary judgment with regard to count II of the plaintiff’s complaint.